TerraLex Cross-Border Guide to Guide to Tracing Assets Around the World

Kenya is a common law jurisdiction, comprised of 47 regional semi-autonomous Counties and a Central Government with a single governing law across the country in relation to real and personal property. Pre-judgment relief is available in certain circumstances to prevent disposition of assets before judgment is obtained. In addition, post-judgment remedies are available to identify assets and enforce judgments obtained in Kenya or those obtained in other specific jurisdictions namely - Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, Republic of Rwanda.

If any of a defendant/judgment-debtors assets can be traced, a plaintiff can generally seek the assistance of the court in attaching those assets whether in anticipation of a trial (if it can be demonstrated that the defendant has no other known assets in Kenya, is in the process of disposing of those assets or is in the course of leaving the jurisdiction of the courts) assets or in execution of a decree.

Tracing assets is extremely difficult, costly and time-consuming. It is imperative to engage the services of a private investigator to trace those assets and ownership can ordinarily be easily established through publicly available ownership register(s) – for real estate, motor vehicles, stock/shares etc.

Yes. Limited only to real estate, motor vehicles and stock/shares in private companies. It is also possible to request a list of assets held by public servants (submitted to the Ethics and Anti-Corruption) under the Access to Information Act.

While it is possible to gain information on asset holders through the court, Kenyan courts are generally reluctant to issue orders facilitating the plaintiff’s search for information, instead requiring that they make a prima facie case prior to orders being issued. Pre-litigation, the plaintiff will have to make a ‘good, arguable case’, which in the first instance will usually involve engaging a private investigator to collect evidence of the defendant’s assets. This can usually be done with minimal information, specifically the defendant’s national identification number, tax identification number and mobile phone number.

In the course of litigation, the discovery process as an element of trial is not very robust in Kenya and relies on the good faith of the adversary; this is not a frequently fruitful route to gaining information on assets. Third parties may however be compelled (through witness summons or a formal application) to provide evidence where the plaintiff can show that a third party is ‘mixed up in’ or facilitating the defendant’s wrongdoing. This remedy is available where the plaintiff can show that the third party is in possession of assets associated with the defendant, for example their bank; or a trustee over assets that they are a beneficiary of.

Yes. One can seek a mareva injunction which acts as a “freeze order” preserving the assets in issue until the occurrence of a certain event (full trial, provision of adequate security etc.) or further orders of the court. The court may, in certain circumstances. also allow the defendant to post a cash security with the court, assessed on the basis of the value of the property, in lieu of granting/lifting a freezing order, and thus allow the defendant to avoid the effect of a freezing order.

The plaintiff must establish before the court that: - They have a strong prima facie case.

• The court has jurisdiction over the claim, the assets in issue and possibly jurisdiction over the defendant as an individual.
• The defendant appears to have assets within the jurisdiction; these must be identified with some specificity.
• There is an immediate risk that the assets will be removed from the court’s jurisdiction/dissipated if the orders are not issued.
• The balance of convenience is in the plaintiff’s favour (no undue burden on defendant)

The general nature of freezing orders in Kenya is that assets must be within the court’s jurisdiction, and courts are hesitant to extend this jurisdiction beyond Kenyan borders. However, where judgments can be reciprocated overseas there is a higher chance that the court will find jurisdiction. Most assets can be frozen, however there are some exceptions under the Civil Procedure Act (s.44):

• Cooking vessels
• Up to a third of the defendant’s salary may be attached, but no more.
• Tools of the trade and items required to maintain their livelihood.
• Clothing and other apparel.

Search orders, known as ‘Anton Piller’ orders, though rare, are available. These are intended to prevent the obstruction of justice by a potentially uncooperative defendant and restrain them from tampering with evidence that may be needed later on in a trial. They are not a route to collect further evidence. Search orders have broadly similar requirements to freezing orders; the plaintiff must show:

• That they have a strong prima facie case.
• That the court has jurisdiction over the claim.
• That the defendant’s assets are within the court’s jurisdiction.
• That there is an imminent risk that the defendant will attempt to obstruct the course of justice by removing/destroying evidence.
• That the balance of convenience is in the plaintiff’s favour.

Similarly, in the event the case has a criminal element, the Kenyan Police can obtain search warrants ex-parte, which can then be executed accordingly.

Kenya has reciprocating arrangements with limited jurisdictions which would allow judgments or orders issued in those jurisdictions to be recognised and enforced in Kenya in a summary manner. These are - Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, Republic of Rwanda. Therefore, injunction or search orders issued in these jurisdictions can, in a summary manner, be recognised and enforced in Kenya.

For proceedings initiated in all other jurisdictions, any freezing injunction or search order will not be recognised and enforced in a similar manner – the plaintiff will have to originate fresh proceedings in Kenya seeking a freezing injunction or a search order.

Yes. The Foreign Judgments (Reciprocal Enforcement) Act allows certain judgments and decrees rendered in select countries to be registered in Kenya, giving them the same effect as if made by the High Court in Kenya. (The countries are Australia; Malawi; Rwanda; Seychelles; Tanzania; Uganda; the United Kingdom and Zambia). Registration must be done through an application made to the High Court no more than six years after the date of judgment.

Where the foreign country is not a reciprocating jurisdiction, the foreign judgment may be enforced in Kenya as a common law claim by filing an ordinary suit on the judgement at the High Court. The judgement creditor will be required to prove the elements that make the foreign judgement enforceable. The judgment debtor may, upon being served with the summons and the Plaint dispute it on the grounds contained in Section 9 of the Civil Procedure Act i.e., it was not rendered by a court of competent juridcition, it was not pronounced on the merits of the case, the proceedings in the foreign court violated the principles of natural justice, the foreign judgement was obtained by fraud, or the judgement sustains a claim founded on a breach or violation of Kenyan law.