i.) Service of Summons and Other Court Process out of Kenya Streamlined
The service of Court process outside Kenya is primarily regulated by Rules 21-29 of Order 5 of the Civil Procedure Rules, 2010. Order 21 provides for service of Summons or Notice of Summons.
Of relevance to the Amendment is that Order 22 made a distinction between service upon a Defendant who was a citizen of the Commonwealth and/or a resident of the Commonwealth and a Defendant who was not. For Citizens and residents of the Commonwealth, the Rule required service of the Original Process. For those that were not, the Rule required service of copies of the Process and a written notification that court process in form of the copy has been issued.
Rule 7 of the Civil Procedure (Amendment) Rules removes the distinction between commonwealth and non commonwealth residents and citizens by deleting the terms “neither a Commonwealth citizen nor residing within the Commonwealth” and substituting therefor the words “not resident in Kenya”. This appears to mean that service of process outside of Kenya shall always be by a copy of the process and a written intimation that proceedings in the form of the copy have been issued and never the original process.
Order 25 of the Civil Procedure Rules, in providing for the form of the application to be made required that the Applicant specify and adduce evidence as to whether the Defendant was a Commonwealth Citizen or a British protected person or not. The requirement has been removed by Rule 9 of the Civil Procedure (Amendment)Rules and all one needs to do is to provide evidence that the Defendant is not resident in Kenya.
ii.) Service of process outside Kenya by International Courier, Electronic mail and Mobile enabled Messaging.
The Amendment Rules have taken commendable steps towards easing service of Court Process out of Kenya by allowing legal practitioners to take advantage of technology. The Amendment Rules do so by introducing Order 5 Rule 22A, 22B and 22C.
Rule 22A allows service outside of Kenya through a registered and recognized international courier service through which summons may be sent to a 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. Thereafter, as in cases of personal service, an officer of the court duly authorized to effect service shall file an Affidavit of Service attaching the way bill receipt or consignment note from the courier service provider as evidence of service. The affidavit of service shall be proof enough that service was effected, even if the person being served declines to acknowledge receipt.
Rule 22B allows service by e-mail to the Defendant’s last confirmed and used email address. Service shall be deemed to have been effected when the Sender receives a delivery receipt. An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.
Rule 22C allows service by Mobile enabled Messaging platforms such as WhatsApp to the Defendant’s last known and used telephone number. Service shall be deemed to have been effected when the Sender receives a delivery receipt. An officer of the court who is duly authorized to effect service shall thereafter file an Affidavit of Service attaching the delivery receipt confirming service.