REPUBLIC OF KENYA v. NEDERMAR TECHNOLOGY BV LTD ...

commercial purposes - can be used without impediment in accordance with their intended
use; and therefore, such bank accounts cannot be used in advance [of judgment] as a
source of recovery for creditors of the country concerned. It has been sufficiently shown
at the hearing that the moneys in the attached bank account are intended for the
establishment, maintenance and operation of the embassy and thus constitute an essential
part of the government's functions, and therefore of public service, so that the attachment
by Nedermar of the aforementioned bank account should be lifted if only for this reason.
3.6 The question whether the various premises that have been attached concern matters
for the public service of Kenya and whether said attachments should if only for that
reason be lifted, should be answered in the negative. The reason is that these attachments
concern immoveableproperty where the mission of Kenya is domiciled, and/or where
activities are carried out by said mission in the context of the execution of a public
function by Kenya. In principle, said goods therefore have a public designation.
However, it is of importance that the management of said public tasks, more specifically
the functions of the mission of Kenya in The Netherlands, is not frustrated by said
attachments. In said situation it cannot be argued that these immoveable properties are
affected by the prohibition of article 703 [Dutch] Code of Civil Procedure. The
provisions of the Vienna Convention do not lead to a different conclusion.
Since it has been established that Kenya does not (or at least not adequately) challenge
Nedermar's claim (or the amount thereof), and has therefore failed to show the prima
facie unsoundness of the claim, the attachments of the immoveable property in
Wassenaar and The Hague respectively may be maintained.
3.7 The foregoing leads to the conclusion that the claim for lifting of the attachments
will be – partially – granted as mentioned hereinafter. Since no action is required on the
part of Nedermar for lifting the attachments, the lifting of the attachments can be granted
as mentioned hereinafter and the requested penalty need not be imposed.
3.8 The injunction against making attachments that have as yet not been made, and
against making new attachments, will be denied. The reason is that Kenya does not (or at
least not adequately) challenge Nedermar's claim (or the amount thereof), but has
postponed its payment by invoking the possibly suspicious circumstances under which
the Kenyan government entered into the agreement. In our preliminary assessment,
Nedermar is at liberty to take new measures to secure its claim, subject to due respect to
the legal principles set forth hereinabove. In this connection, the Court has taken into
consideration the fact that it has not been established, as regards the bank accounts that
have not as yet been garnished, that said bank accounts are not used for commercial
purposes.
3.9 Since the parties have been reciprocally found in favour of and against, the legal
costs will be set off in these proceedings.
In the counterclaim proceedings