We are regularly instructed to procure freezing orders or injunctions (normally called Mareva Injunctions) and disclosure orders on behalf of clients to prevent defendants or would be judgment-debtor from dissipating their assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him. In the event that the respondent to an order fails to comply with its terms, we are able to act quickly to seek punitive measures against that defendant.
Where the funds have been moved outside the jurisdiction, we are able to call upon trusted lawyers from around the world specializing in asset tracing, freezing and recovery to assist us, and we are able to supervise such practitioners on behalf of the clients.
These orders are normally issued where a respondent has deliberately taken action to avoid any process or otherwise obstruct or delay execution of a decree or anticipated decree. For such orders to be issued, a defendant must be about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.
For purposes of identification of assets that have been misappropriated, we regularly seek orders requiring banks and other appropriate third parties to disclose information. This is particularly critical when attempting to trace funds that have been transferred to one or several banks accounts. To buttress our efforts, we invariably seek the assistance of the Assets Recovery Agency which is a government agency established in Kenya under the Proceeds of Crime and Anti-Money Laundering Act, 2009.
Search orders are also known as “search and seizure orders” or as “Anton Piller” orders. It is a court order, which requires the defendant to give access to the plaintiff, or to his/her legal representatives to the defendant’s premises in order to obtain evidence that might be essential to the plaintiff’s case. Such orders may be issued where a defendant has in its possession incriminating documents or things and there is real possibility that he may destroy such material before any application inter parties can be made or otherwise warning others to destroy or conceal evidence.
Such orders require-a respondent to allow the applicant’s solicitors to enter the respondent’s premises and to search for and remove all items covered by the order. We have experience in applying for and implementing such orders to preserve evidence that may be relevant to a claim when it is situated on premises that are not under the control of the claimant’s home or office premises.
In the event that there is evidence to suggest that the defendant would wish to flee the jurisdiction to avoid ongoing proceedings, we can apply to the court for an order requiring the defendant to surrender their passport(s) and travel documents.
We work with foreign claimants and regulators with foreign judgments or arbitral awards who wish to freeze the assets of defendants (whether domiciled in the Kenya or not) and/or to recover the assets of defendants located in Kenya and the Eastern Africa region.
Foreign judgments are enforceable under Foreign Judgment (Reciprocal Enforcement) Act [CAP 43 of the Laws of Kenya]. This Act only applies to enforcement of judgments originating from countries that accord reciprocal treatment to judgments given in Kenya and these include Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and the Republic of Rwanda.
Kenya is also a signatory to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. This Convention applies to decisions rendered in civil or commercial matters by the courts of Contracting States. In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law but this requires proof that such judgment was issued by a competent court and through a fair trial process.
The Kenyan Arbitration Act, which is broadly based on the United Nations Commission on International Trade Law Model Law, makes specific provision for the recognition and enforcement in Kenya of foreign arbitral awards. If you are concerned about an actual or potential fraud, or would just like more information on how we can help you, please feel free to get in touch.