Your Jurisdiction Defence Is Won or Lost in the First Filing

A foreign company is served with a Kenyan lawsuit. Its general counsel is confident that the Kenyan court has no jurisdiction: the company has no office in Kenya, th contract chose the courts of England, and no leave was obtained to serve it abroad. Still, a default judgment would be embarrassing, so the company instructs a Nairobi firm to enter appearance, file a defence and attend the first few mentions while the jurisdictional point is prepared. Months later, when the objection is finally argued, the claimant replies that the company has already accepted the jurisdiction of the court.

That reply can succeed. In Kenyan law, as in the wider common law, a defendant may lose a strong jurisdictional objection simply by the way it responds to the suit. For foreign companies, the first procedural steps taken in a Kenyan court are therefore as important as the merits of the objection itself.

The doctrine of submission

A court that would otherwise lack jurisdiction over a foreign defendant may acquire it by the defendant's own conduct. The Court of Appeal stated the principle in Kanti & Co Ltd v South British Insurance Co Ltd: a defendant who enters an unconditional appearance submits to the jurisdiction of the court, whatever the pretext.¹ The logic is that a party cannot invite the court to decide the dispute on its merits and then deny that the court has power to decide it.

Submission matters most where the claimant's route to jurisdiction is otherwise weak. The Court of Appeal has held that the High Court assumes jurisdiction over a foreign defendant by granting leave to serve the summons abroad, and only once the summons has been served pursuant to that leave.² A claimant who failed to obtain leave may still find that the defendant has cured the defect by submitting to the court.

How the courts draw the line

The cases show that the question is not simply whether the defendant appeared, but whether its conduct, read as a whole, was consistent with an intention to contest the court's jurisdiction.

In W K v British Airways Travel Insurance, a foreign insurer with its registered office in England entered appearance in a Kenyan suit and then applied to set aside a default judgment, attaching a draft defence. The claimants argued that, under Kanti, the insurer had submitted to the jurisdiction. The Court of Appeal disagreed. It distinguished Kanti on the ground that the insurer in that case had an office in Nairobi and had been served there, whereas this insurer had no Kenyan office and had raised its objection to jurisdiction promptly after appearing. The insurer was therefore not prevented from challenging jurisdiction, and the court went on to hold that the High Court lacked jurisdiction over the claim.³

In Misnak, the foreign defendant entered a conditional appearance and immediately objected to jurisdiction on the ground that no leave had been obtained to serve it abroad. The Court of Appeal upheld the objection.⁴ In United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd, the foreign insurers entered appearance under protest and applied to stay the suits in favour of the courts of Bombay. The Court of Appeal decided their application on its merits, applying the strong reason test, rather than treating them as having submitted to the jurisdiction.⁵

The Worldcoin case shows the other side of the line. The foreign respondents appeared through Kenyan advocates, filed replying affidavits and submissions, attended hearings and engaged with the substance of the case without protest. When they finally objected to the manner in which they had been served, the High Court held that, having voluntarily participated in the proceedings without promptly raising the objection, they had waived it.⁶

A protest must be timely

Entering appearance ‘under protest’ is not a magic formula. In Mwilu v British Broadcasting Corporation, the BBC filed a notice of appointment of advocates under protest some six months after the claimant's attempted service, together with an application to set aside a default judgment and for leave to raise a preliminary objection to jurisdiction. The High Court set the judgment aside because no leave to serve outside Kenya had been obtained. It observed, however, that had leave been properly obtained and the BBC properly served, it would have had little difficulty in finding that a protest entered six months after service was of no consequence.⁷

The message is that a protest preserves an objection only if it is made promptly, and only if the defendant's subsequent conduct is consistent with it.

The objection must be properly framed

A jurisdictional objection can also be lost by the way it is presented. A preliminary objection must consist of a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.⁸ Foreign defendants often frame their objection as a preliminary objection while relying on facts, such as the assertion that they do not carry on business in Kenya, that the claimant disputes.

That is what happened in the litigation brought by content moderators against Meta. The Meta companies applied to strike out the petitions without supporting affidavits, contending that they were foreign corporations not trading in Kenya. The Court of Appeal held that whether they carried on virtual business in Kenya, and whether the violations occurred in Kenya, were questions of fact that could not be determined on an interlocutory application, and observed that a litigant is always required to put its best foot forward. The jurisdictional objection therefore failed at that stage, leaving the companies to defend the petitions while the factual questions went to trial.⁹

The combination is dangerous. A defendant whose objection is deferred to trial must take part in the proceedings in the meantime, and every step it takes on the merits invites the argument that it has accepted the court's jurisdiction.

Lessons from England

English procedure addresses the problem directly. A defendant who files an acknowledgment of service and does not apply to dispute the court's jurisdiction within the prescribed period is treated as having accepted that the court has jurisdiction.¹⁰ At the same time, the House of Lords has held that steps taken genuinely to contest jurisdiction, including an application to set aside service or to stay proceedings, do not amount to submission.¹¹ Kenyan rules contain no equivalent fixed deadline, which places even greater weight on the defendant acting promptly and consistently.

A practical checklist for foreign defendants

A foreign company served with Kenyan proceedings should, from the outset, enter appearance expressly under protest and make clear in every document that it objects to the court's jurisdiction. It should file its jurisdictional challenge promptly, supported by affidavit evidence wherever the challenge depends on facts, such as the absence of any business presence in Kenya, the location of the contract or the existence of a foreign jurisdiction clause. It should check whether leave to serve it outside Kenya was ever obtained. Until the objection is decided, it should avoid any step that invites the court to decide the merits, such as filing a defence without reservation, making a counterclaim or seeking substantive relief. Where a defence must be filed to avoid default, it should be expressly stated to be filed without prejudice to the jurisdictional objection.

A strong jurisdictional defence is valuable. It is also fragile. In Kenya, it can be lost in the first few weeks of a case by a foreign company that simply responded the way it would to any ordinary lawsuit.

Benson Odiwuor is a Nairobi-based dispute resolution lawyer and researcher in internet jurisdiction, who handles dispute resolution in cross-border digital, data protection and online reputation matters. He is also the editor of The BOLD, a legal newsletter focusing on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

For inquiries, contact the author at  info@bensonodiwuor.com