SELECTIVE HIGHLIGHTS OF THE CHANGES INTRODUCED BY THE CIVIL PROCEDURE (AMENDMENT) RULES, 2020 TO CIVIL PROCEDURE RULES, 2010

1.0.       INTRODUCTION

The Civil Procedure (Amendment) Rules, 2020 (hereafter “the Amendments”) amend several rules in the Civil Procedure Rules, 2010 (hereafter “the Principle Rules”). The Amendments have been published in the Kenya Gazette Supplement No. 9 and as Legal Notice No. 22, dated 26 February 2020. These highlights provide insights into some of the significant changes that the Amendments have introduced into the Principle Rules. It is important to note that these highlights are not exhaustive of the changes, but the provide analyses of some of the most significant changes that have been introduced into the Principle Rules by the Rules Committee, pursuant to the provisions of Section 81(1) of the Civil Procedure Act, Cap. 21 of the Laws of Kenya.

2.0.       SOME OF THE CHANGES IN THE CIVIL PROCEDURE RULES, 2010

2.1.       Contact Details of Parties to Suit

The Amendments have introduced Rule 26 to Order 1 of the Principle Rules. The Rule makes mandatory for parties to furnish the Court with their contact details when filing their pleadings. According to the new Rule 26, the contacts include the postal addresses, telephone numbers, email addresses and physical addresses of the parties. Notably, the construction of the new Rule implies that the requirements listed thereunder are not exhaustive and parties may provide other contact details, in addition to the ones listed under the Rule. Before the Amendments, the Principle Rules never made it mandatory for parties to provide their contact details as specified in the new Rule.

The new Rule 26 of Order 1 also makes it mandatory for a party to notify the Court in case of any change in the contact details submitted to the Court.

2.2.       Small Claims

Under Rule 1(3) of Order 3 of the Principle Rules, “Small Claims” have been defined, for the purposes of the rules, to refer to a simple claim involving not more than two parties and of which monetary value is not in excess of Kshs. 49,999. The Amendments have increased the value to Kshs. 200,000. The implication of this amendment is that Small Claims now refer to a simple claim involving not more than two parties and of which monetary value does not exceed Kshs. 200,000.

2.3.       Service of Other Process Out of the Jurisdiction

Under Rule 22(1) of Order 5 of the Principle Rules, the Court may allow service out of Kenya of the processes or notices thereof listed under the Rule 22(1). Sub-Rule (2) provides for the application, mutatis mutandis, of Rules 25, 26, 27, 28, 29, 30 of Order 5 to any of the processes listed under Sub-Rule (1). Notably, the Amendments exclude the application of Rule 29 of Order 5 to the processes under Sub-Rule 1.

The Amendments has introduced a new Rule 22A immediately after Rule 22 under Order 5 of the Principle Rules. In this respect, Rule 22A(1) of Order 5 now allows for service of summons out of the jurisdiction via internationally registered and recognised courier services. Such a service shall be effected through an internationally registered and recognised courier service provider to the defendant’s last known physical address. However, the service shall only be with the leave of the Court.

Thereafter, an affidavit of service shall be filed in Court, with the way bill receipt or consignment note from the courier service provider confirming the service annexed thereto.

Notably, under Sub-Rule (2) of the new Rule 22A, service shall be deemed to have been effected when the person upon whom summons are intended to be served acknowledges the receipt by affixing his or her signature on the document. Alternatively, the same shall be deemed effected upon the confirmation of delivery by the courier service provider.

Notably, the procedure of service outside the jurisdiction as outlined in the new Rule 22A introduced by the Amendments replaces the one provided for under Rule 29 of Order 5 of the Principle Rules, which is now deleted by Paragraph 8 of the Amendments.

2.4.       Service of Summons via Electronic Email

Service of summons by email is a new procedure that the Amendments have introduced into the Principle Rule through the introduction of Rule 22B under Order 5. Notably, the summons sent electronically under Rule 22B(1) must be to the defendant’s last confirmed and used E-mail address. In this case, in order to prove effective service, two things must be proven: 1) the email to which the summons are sent must be the defendant’s last confirmed email address 2) the last confirmed email address must be the last used email address. Impliedly, the failure to prove the two elements is construed to mean that there was no effective service.

According to the new Rule 22B(2) of the Principle Rules, an electronic mail service shall be deemed to have been effected when the sender receives delivery receipt. The implication of this provision is that it is not enough to state that summons were sent to the defendant through an email address as stated under Sub-Rule (1). The sender must prove receipt. Consequently, it is necessary that the sender must be able to receive a delivery receipt to show a successful delivery of the summons to defendant (recipient). A party wishing to send electronic summons must configure his or her email account such that it is possible to obtain a mail delivery receipt upon a successful delivery of summons to the defendant. If the sender fails to receive a delivery receipt, the service is ineffective.

The summons sent electronically is deemed served on the same day, but only if it sent within the official business hours on a business day in the jurisdiction to which the email is sent. Otherwise, if it is sent outside business hours and on a non-business day, the service is deemed effective on the following business day and hours.

2.5.       Mobile-Enabled Messaging Applications

The Amendments have introduced into the Principle Rules the service of summons through mobile-enabled messaging applications. Such application include WhatsApp, Facebook Messenger and Telegram, among others. To this extend, the Amendments have introduced Rule 22C under Order 5 of the Principle Rules. However, whichever application the sender elects to use in sending the summons, it must be to the defendant’s last known and used telephone number. Proof of service follows the same procedure as electronic service by email, mutatis mutandis.

2.6.       Case Management and Conferences

The Amendments have replaced all the provisions of Order 11 under the Principle Rules with new ones. Following the Amendments, the Pre-trial Directions and Conferences shall now be replaced with Case Management and Conferences.

Instead of the filing of Pre-Trial Questionnaires by parties, the Plaintiff is now obligated under the new Order 11, Rule 2, to file with the Court a Case Management Checklist in the new Form in Appendix B within 14 days after the close of pleadings. The Form in Appendix B contains the necessary details that must be filled by the Plaintiff. Notably, the Case Management Checklist has replaced the Pre-Trial Questionnaire under Appendix B.

There is also introduced a case management conference under Rule 3 of the new Order 11, which shall be conducted and concluded as provided for under the new Order.

3.0.       Conclusion

The Civil Procedure (Amendment) Rules, 2020 has introduced significant changes into the Civil Procedure Rules, 2010. Some of the notable changes are the introduction of service of summons through email addresses and mobile-enabled applications. The Amendments have also replaced Pre-trial Directions and Conferences with Case Management and Conferences. In this case, the Pre-trial Questionnaire under Appendix B has been replaced with Case Management Checklist. The Amendment have further changed the process of effecting service of summons outside the jurisdiction. These highlights are not exhaustive, as they have only focused on few areas of changes introduced by the Amendments.

Calvince Alala is an Advocate of the High Court of Kenya and a legal consultant in the areas of public and private international law, humanitarian laws, commercial and corporate law and children rights and safeguarding. He can be reached through alala@sigomac.com. He is currently the Managing Partner of Sigomac Advocates, a Medium-sized law firm based in Nairobi, Kenya with clients across the globe.

For more information: www.sigomac.com