CHANGES BROUGHT ABOUT BY THE CIVIL PROCEDURE (AMENDMENT) RULES, 2020

By George Ndung'u,Evans Monari Monday, March 02, 2020
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The Rules Committee (established under the provisions of the Civil Procedure Act) has made new rules providing for the procedure of civil courts in Kenya. The Civil Procedure (Amendment) Rules, 2020 (the “Amendment Rules”), published on 26 February 2020, have made several amendments to the Civil Procedure Rules, 2010 (the “Principal Rules”). These changes are intended to align the Principal Rules with new legislation and established practice.

Changes brought about

Below are some of the important changes that the Amendment Rules make on the Principal Rules. 

Introduction of service by way of registered courier service provider – new alternative modes of service of summons have been introduced by the Amendment Rules, including service by way of internationally registered and recognised courier service, which may only be effected with the court’s permission to the defendant’s last known physical address. Service shall be deemed to have been effected when the person being served acknowledges receipt by affixing his signature on the document or on confirmation of delivery by the courier service provider. An affidavit of service attaching the waybill receipt or consignment note from the courier service provider, confirming service, shall be sufficient proof that service was effected even if the person being served does not acknowledge receipt.

Introduction of service by email – It is now permissible to effect service of summons by way of email to the defendant’s last confirmed and used e-mail address. Service shall be deemed to have been effected when the Sender receives a delivery receipt to be attached to the affidavit of service to be filed. The summons shall be deemed served on the day that it is sent; that is, if it is sent within the official business hours on a business day in the relevant jurisdiction in which it is sent. If it is sent outside of the business hours and on a day that is not a business day, it shall be considered to have been served on the subsequent business day.

Introduction of service by mobile enabled messaging applications – Summons may be sent by mobile-enabled messaging applications to the defendant’s last known and used telephone number. Similar to service by email, service shall be deemed to have been effected when the Sender receives a delivery receipt, which must be attached to the affidavit of service to be filed in court. Summons shall also be deemed served on the day that it is sent if it is sent within the official business hours on a business day or the subsequent business day in any other case.

Contact details in pleadings – A party to a suit or his advocate is mandated to provide additional contact details to the Court when filing pleadings including their postal address, telephone number, email address and physical address. The Court ought to be notified of any changes made to the contact details set out above.

Service of summons outside the jurisdiction – The Amendment Rules eliminate the different processes for service of summons outside Kenya between commonwealth and non-commonwealth countries. The new procedure is that where the person to be served is not resident in Kenya, a copy of the originating proceedings, summons, order or notice shall be served instead of the original documents together with a notification in writing that the original process has been launched.

Amendment of process relating to case management – Order 11 of the Principle Rules, which provided for case management and conferences, has been deleted and replaced with a new Order with rules on case management.

Automatic dismissal of suits – A suit stands dismissed after two years where no step has been taken.

Filing and service of letter as to costs - A party claiming costs at a Magistrates Court shall file a written request, statement of costs and supporting documents with the Court and serve it on the other parties with a breakdown of the costs sought. The Respondent may file a response with the Court within seven days of service.

High Court appeals – A judge of the High Court shall give directions on all appeals filed in the High Court within 30 days. The obligation by the appellant to cause the matter to be listed before a judge for directions has now been deleted. Similarly, the responsibility placed on the appellant to cause the appeal to be listed for the giving of directions by a judge after the appeal has been admitted has now been placed with the Registrar of the High Court.

Additional details for judicial review applications – Where a party files an application for leave for orders of judicial review, the party shall now be obliged to file affidavits verifying the facts and averment that there is no other cause pending. These affidavits must also verify that there have been no previous proceedings in any court between the applicant and the respondent over the same subject matter and that the cause of action relates to the applicants named in the application.

What do these amendments mean?

The Amendment Rules are an attempt to reform civil procedure in the Magistrates Court and High Court and align it to technological advancement by providing alternative modes of service of summons including by email and mobile enabled messaging applications. Integration of technology will aid in streamlining litigation practice in advancement of the interests of justice.

There may be challenges in the interpretation of the new rules in coming days because ‘mobile enabled messaging applications’ have not been defined. It may be said that the intention of the Rules Committee was to include messaging platforms such as WhatsApp to assisting with the task of exchanging of documents between parties. It is therefore arguable that the rules permit service of summons through social media platforms such as Facebook and Twitter, which may also be broadly interpreted as being inclusive to the definition particularly because a party does not require the court’s leave to effect service by email or mobile enabled messaging applications.  

The provision on service by way of an internationally registered and recognized courier service is also somewhat ambiguous because there is no international registration regime for courier services. Parties will inevitably resign to the use of internationally recognized courier services for service.

Further, while parties in litigation now have more obligations in respect of case management and conference, it is expected that the new rules on CMC will assist the courts in achieving the key objectives to reduce costs and delay in litigation. Further, they will identify and reduce issues in contest as well as reduce interlocutory applications as necessary for the just and efficient osition of matters.