REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E299 OF 2024
GOODWEEK INTER-SERVICES LIMITED…….….PETITIONER
VERSUS
SAFARICOM PLC……………………………..1 ST RESPONDENT
VODAFONE GROUP PLC…………………..2 ND RESPONDENT
VODAFONE KENYA LIMITED………………3 RD RESPONDENT
MOBITELEA VENTURES LIMITED………….4 TH RESPONDENT
RULING
This a ruling on a motion application dated 30 th October 2024 by the 2 nd respondent urging the court to find that it has no jurisdiction to entertain proceedings against it for failure to comply with Order 5 rule 21 of the Civil Procedure Rules, 2010 (the rules R). The 2 nd respondent further seeks an order striking its name from this petition. The motion application is premised on the grounds on its face and the affidavit of Nickola John Vidovich (Mr. Vidovich) sworn on the same date.
The 2 nd respondent asserts the petitioner purported to serve the pleadings through a nonexistent email address( legal@vodafone.com ) which does not belong to it and that service by e-mail was not valid and proper service being a foreign entity.
The 2 nd respondent states that it is a public limited liability company incorporated and domiciled in the United Kingdom with registered office at Vodafone House, The Connection, Newbury, Berkshire, RG14 2FN, the United Kingdom. Its place of business is also in the United Kingdom.
The 2 nd respondent asserts that the petitioner should have sought leave of court to serve outside the court’s jurisdiction in compliance with Order 5 rules 21 and 22 of the rules. The mode of service purported to have been used is invalid in law and the purported service is null and void. The petition against it is thus, incompetent and this court cannot assume jurisdiction over it.
The 2 nd respondent contends that the matter has substantively proceeded in its absence and it will be prejudiced. It is in the interest of justice that the application be allowed.
The 2 nd respondent adds that that Evans Oningo, the petitioner’s process server, does not state how he got the email address he used. According to the 2 nd respondent, a search on the Law Society of England and Wales website would have revealed the email addresses of representatives of Vodafone’s legal department.
It is asserted that David Craig Dunn a solicitor of England and Wales attempted to send a test email to the email address used ( legal@vodafone.com ) on 16 th October 2024 but received a bounce-back error message. The 2 nd respondent’s IT team also informed him that the email address in question has never been set up and an external party sending an email to a non-existent email address on the 2 nd respondent’s domain will not get a bounce back email.
According to the 2 nd respondent, on 29 th October 2024, its counsel Mr. Abbas Esmail sent a test email to a made-up address using the vodafone.com domain to gibberish@vodafone.com and confirmed that despite requesting for both a delivery report and a read report, none of those reports was received. No bounce back report was received.
It is also asserted that the purported service by the newspaper on 2 nd October 2024 is not a recognized mode of service on a foreign respondent under the rules.
Response
The petitioner has filed a preliminary objection, grounds of opposition and a replying affidavit in opposing the application. In the preliminary objection, the petitioner contends that the 2 nd respondent’s application offends the provisions of section 6(2) of the Arbitration Act because there is an undetermined application by the 1 st respondent filed under section 6(1) of the Arbitration Act. Based on this fact, this court lacks jurisdiction to hear and determine the 2 nd respondent’s application.
The petitioner further argues that the 2 nd respondent is not permitted to participate in the 1 st respondent’s application because it does not have any disclosed or alleged arbitral nexus to the petitioner.
It is the petitioner’s position, that on 25 th September 2024 the court (Mwamuye, J.) directed how service was to be effected on the 2 nd respondent. The 2 nd respondent did not appeal against that order or apply for review. Instead, counsel for the 2 nd respondent entered appearance.
The petitioner contends that having obtained leave of court to serve through, among others, email addresses appearing on their websites or registration information and the order having not been set aside, the application is defective and ought to be struct out for being res judicata
The petitioner states that proper proceedings have not commenced thus, the 2 nd respondent has not suffered prejudice and can be served again, if necessary. According to the petitioner, service on the 2 nd respondent was done as required by the rules and this court has properly assumed jurisdiction over the 2 nd respondent.
The petitioner is of the view, that service is not such a fundamental issue that cannot be rectified, repeated, refashioned or otherwise managed by the court so that the matter is determined on merit.
The petitioner maintains that the process server searched for the 2 nd respondent’s email address in the internet and the most logical email address found for use to service was legal@vodafone.com . The 2 nd respondent was served through that email address and no error or bounce back message was received. According to the petitioner, searching the Law Society of England and Wales as suggested by the 2 nd respondent would be contrary to the mode of service directed by the court. The petitioner states that it has since traced the email address of Nickola John Vidovich and effected service again.
Rejoinder
In a rejoinder through a supplementary affidavit by John Vidovich, the 2 nd respondent states that the order for substituted service on the 2 nd respondent was granted because the petitioner’s counsel misled the court through nondisclosure of material facts on 25 th September 2024 that the petitioner had sought leave to serve the 2 nd , 3 rd and 4 th respondents. The petitioner’s notice of motion dated 21 st June 2024 had no prayer for substituted service.
According to John Vidovich, the court issued the order for publication in a newspaper because it was not informed that the 2 nd respondent is a foreign company on whom publication in a local newspaper would not amount to proper service under the rules.
The 2 nd respondent denied that the issue is res judicata because the issue has not been fully and finally determined on merits; the 2 nd respondent was not present when the order was made and the issue raised is jurisdictional in respect of the petitioner’s failure to apply for leave to serve outside the jurisdiction of the court.
According to the 2 nd respondent, the allegation that the petitioner’s clerk found the email address following a google search is misleading because the name of the petitioner’s clerk who searched the internet was not disclosed, maintaining, therefore, that there was no proper service.
The 1 st , 3 rd and 4 th respondents did not take part in the application.
2 nd respondent’s submissions
Mr. Esmail, learned counsel for the 2 nd respondent submits, relying on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, that this court has no jurisdiction since the petitioner did not comply with the rules on service.
Learned counsel maintains that from the petition and the affidavit of service of Mr. Evans Oningo, the petition was filed against it, a foreign company, without seeking leave of the court. He relies on the decision in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] eKLR.
Counsel argues that only when a party obtains leave to serve a foreign respondent in a particular manner in accordance with the provisions of Order 5 and effects that service in the manner prescribed, is service deemed to be properly effected and the court assumes jurisdiction over that respondent. Counsel relies on the decisions in Law Society of Kenya v Martin Day & 3 others [2015] eKLR and Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] eKLR.
According to Mr. Esmail, service is not a technicality. It is what leads a court to assume jurisdiction over a party. Where the rules have not been complied with, the court should decline jurisdiction. The application for leave must also meet the threshold in Order 5 rule 21 and thereafter service must be effected in the manner prescribed by the Court. Reliance is placed on Roberta Macclendon Fonville vs James Otis Kelly III & 3 others [2002] eKLR. He urges the court to allow the motion.
Petitioner’s submissions
Dr. Kiplagat, learned counsel for the petitioner, maintains that the 2 nd respondent entered appearance on 17 th October 2024 without protest and the petition has not materially progressed and, therefore, the 2 nd respondent has not suffered any prejudice given the means by which the court directed that the 2 nd respondent be serviced. He relies on Kanti & Co Ltd v South British Insurance Co Ltd [1981] KECA 4 (KLR).
Dr. Kiplagat asserts that the 2 nd respondent has not appealed or sought a review of the order of 25 th September 2024 which directed the manner of service on the 2 nd respondent. He relies on the decision in Joseph Ndirangu Waweru t/a Mooreland Mercantile Co. & another v City Council of Nairobi [2015] eKLR, for the proposition that the application is barred by the doctrine of res judicata.
Learned counsel maintains that the 2 nd respondent was served as directed by the court and the decisions relied on by the 2 nd respondent are from ordinary commercial suits. According to learned counsel, in constitutional petitions, focus is on substantive ends of justice arising from alleged constitutional violations and not on procedural aspects of litigation. Reliance is placed on Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others [2023] KEELRC 320 (KLR) and Meta Platforms, Inc & 2 others v Motaung & 186 others; Kenya National Human Rights and Equality Commission & 14 others (Interested Parties) [2024] KECA 1262 (KLR).
Counsel has urged the court to dismiss the application with costs.
Determination
I have considered this application, the response and respective arguments by counsel for the parties, as well as the decisions relied on. The issue is whether the court should strike out the 2 nd respondent’s name from this petition for not seeking leave to serve the petition out of jurisdiction.
The 2 nd respondent has urged the court to find that since no leave was sought to serve pleadings outside the jurisdiction of the court, this court has not assumed jurisdiction over it. This is because the 2 nd respondent being a foreign company based in the United Kingdom, service on it could only have been done with leave of the court.
The 2 nd respondent also argues that although pleadings were said to have been served through email, the email address used does not belong to it. The 2 nd respondent maintains that the court should allow the motion on grounds that it lacks jurisdiction over it.
The petitioner on its part has asserted that the 2 nd respondent was properly served following the order issued on 25 th September 2024 that service be effected through email thus, the court has assumed jurisdiction over the 2 nd respondent.
Order 5 rule 21 gives the court powers to allow a party to serve out of jurisdiction. The rule provides that service outside Kenya may be allowed by the court (e) if the suit is one brought to enforce, rectify, rescind, dissolve, annul, or otherwise affect a contract or to recover damages or other relief for or in respect of breach of a contract—made in Kenya, or made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya.
The rule is plain that the court has discretion to allow a party to serve summons (pleadings) out of jurisdiction. This is a discretionary power that the court exercises and, like all discretions, the discretion is to be exercised judicially.
The 2 nd respondent does not deny that the court has powers to allow service out of jurisdiction. The argument is that the petitioner did not seek leave of court to serve out of jurisdiction. It is for this reason that the 2 nd respondent seeks to have its name struck out. Secondly, the 2 nd respondent argues that the email address used does not belong to it.
Order 5 rule 21, is a general provision on service out of jurisdiction. However, Order 5 was amended in 2020 by introducing rule 22B on service by Electronic Mail (emails). Rule 22B provides as follows:
Summons sent by Electronic Mail Service shall be sent to the defendant’s last confirmed and used E-mail address.
Service shall be deemed to have been effected when the Sender shall receive a delivery receipt
Summons shall be deemed served on the day which it is sent, if it is sent within the official business hours on a business day in the jurisdiction sent, or if it is sent outside of the business hours and on a day which is not a business day it shall be considered to have been served on the business day subsequent.
An officer authorized to effect service shall file an affidavit of service attaching the Electronic Mail Service delivery receipt confirming service.
In Raytheon Aircraft Credit Corporation & Another v Air Al- Faraj Limited [2005] 2 KLR 47; [2005] eKLR, the Court of Appeal stated that:
[T]he High Court will not assume jurisdiction in relation to any matter arising from the contract unless the contract is of the nature specified in Order V Rule 21 (e) of the Civil Procedure Rules, that is, inter alia, the contract is made in Kenya or if it is governed by the laws of Kenya or if a breach of contract is committed in Kenya. The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country under Order V Rules 23 and after such summons are served in accordance with the machinery stipulated therein…The record does not show nor is it contended that the respondent moved the High Court for leave to serve the first appellant outside the jurisdiction and that such leave was given…Thus, there cannot be any question that Raytheon was not amenable to the jurisdiction of the High Court and the objection to jurisdiction should have been allowed on this ground alone.
(See also Fonville v Kelly III & Others [2002] 1 EA 71; [2002] eKLR).
Addressing the issue of service of summons on a foreign defendant in Law Society of Kenya v Martin Day & 3 others [2015] eKLR, the Court observed that it is not sufficient for a plaintiff to institute a suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The Summons must be served in the manner provided for by the rules to enable the defendant who has no registered office or business in Kenya to submit to the jurisdiction of the court. His knowledge of the existence of the suit is not sufficient enough to proceed against him.
These decisions were dealing with service of summons under Order 5 rule 21, a different mode of service from that in rule 22B which is a latter rule. Order 5 rule 22B seems to suggest that service can be done without leave “ if it is sent within the official business hours on a business day in the jurisdiction sent.”
It is important to note that rule 22B does not make reference to rule 21 which requires that service outside jurisdiction be done with leave of court. In that respect, service under rule 22B is an independent of the mode of service from that under rule 21 and does not require leave of the court. It provides its own way of service.
As this court observed in Ngungu v KPMG International Co-operative (Commercial Case E139 of 2019) [2022] KEHC 18125 (KLR):
I do not agree with the argument…that leave should be granted before service is effected through email under rule 22B. This is because rule 22B was introduced in response to the challenges brought about by the Covid 19 Pandemic as an alternative to the then known mode of service under rule 21 and ease pressure on litigants as people worked largely from home. It is an independent mode of service not subject to rule 21.
In the present petition, pleadings were served by email. I have perused proceedings for 25 th September 2024. On that day, the court (Mwamuye J), granted the petitioner leave to serve the 2 nd , 3 rd and 4 th respondents by substituted service by placement of advertisement in a newspaper of nationwide circulation and also by email to the 2 nd , 3 rd and 4 th respondents’ email addresses appearing on their websites or registration information. It was on that basis that pleadings were said to have been served on the 2 nd respondent.
The order of 25 th September 2024 allowed the petitioner to use email addresses appearing on the 2 nd , 3 rd and 4 th respondents’ websites or registration information. The court further granted leave to serve by advertisement in a daily newspaper of nationwide circulation. The petitioner argues that service by email was done as ordered by the court. The 2 nd respondent has not sought to set aside or a review those orders and this court has no jurisdiction to sit on appeal over a decision of a court of concurrent jurisdiction.
The other argument is that the email address used to serve the 2 nd respondent was not its email address. The petitioner maintains that the email was found in the internet as directed by the court. Whether the email address used belongs to the 2 nd respondent, is a contested issue which would require evidential proof and cannot be determined on the basis of affidavits. In any case, there is no application seeking to set aside the court order the basis of which service was effected as it was.
The petitioner has argued that service has since been effected on Nikola Vidovich and the 2 nd respondent has entered appearance without protest.
In John Akasirwa v Alfred Inai Kimuso (C.A. No. 164 of 1999) (UR), the Court of Appeal held that “ proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfies itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not.” The Court of Appeal was dealing with service of summons within jurisdiction.
In the present case, service was effected outside jurisdiction as ordered by the court. As already alluded to, my reading of Order rule 22B, shows that it does not require one to to seek leave to serve a foreign defendant as long as the summons (pleadings) is/are sent by email to the defendant’s last known and used email address. In this case, the court ordered service of the 2 nd respondent by email and how the email address was to be obtained.
The purpose of service is to bring to the defendant’s attention that a suit has been filed against him/it to enable the respondent file a response to the claim. The 2 nd respondent filed a notice of appointment of advocates dated 17 th October 2024 to act on behalf of the 2 nd respondent. The notice of appointment was not filed on protest. The 2 nd respondent has knowledge of the petitioner’s claim against it and it would not make sense to again serve the 2 nd respondent a fresh.
In the circumstances of this case, the petitioner having served following leave and directions of the court, and there being no application to set aside the orders of 25 th September 2024 and further still, the 2 nd respondent having appointed advocates to act for it without any protest, I am satisfied that the 2 nd respondent is aware of existence of the petition. I do not see the prejudice the 2 nd respondent has suffered or will suffer. Holding otherwise, would render rule 22B redundant.
Consequently, the application dated 30 th October 2024 is declined and dismissed. Costs of the application will abide by the result of the petition.
Dated and delivered at Nairobi this 27 th Day of June 2025
E C MWITA
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E299 OF 2024
GOODWEEK INTER-SERVICES LIMITED…….….PETITIONER
VERSUS
SAFARICOM PLC……………………………..1 ST RESPONDENT
VODAFONE GROUP PLC…………………..2 ND RESPONDENT
VODAFONE KENYA LIMITED………………3 RD RESPONDENT
MOBITELEA VENTURES LIMITED………….4 TH RESPONDENT
RULING
This a ruling on a motion application dated 30 th October 2024 by the 2 nd respondent urging the court to find that it has no jurisdiction to entertain proceedings against it for failure to comply with Order 5 rule 21 of the Civil Procedure Rules, 2010 (the rules R). The 2 nd respondent further seeks an order striking its name from this petition. The motion application is premised on the grounds on its face and the affidavit of Nickola John Vidovich (Mr. Vidovich) sworn on the same date.
The 2 nd respondent asserts the petitioner purported to serve the pleadings through a nonexistent email address( legal@vodafone.com ) which does not belong to it and that service by e-mail was not valid and proper service being a foreign entity.
The 2 nd respondent states that it is a public limited liability company incorporated and domiciled in the United Kingdom with registered office at Vodafone House, The Connection, Newbury, Berkshire, RG14 2FN, the United Kingdom. Its place of business is also in the United Kingdom.
The 2 nd respondent asserts that the petitioner should have sought leave of court to serve outside the court’s jurisdiction in compliance with Order 5 rules 21 and 22 of the rules. The mode of service purported to have been used is invalid in law and the purported service is null and void. The petition against it is thus, incompetent and this court cannot assume jurisdiction over it.
The 2 nd respondent contends that the matter has substantively proceeded in its absence and it will be prejudiced. It is in the interest of justice that the application be allowed.
The 2 nd respondent adds that that Evans Oningo, the petitioner’s process server, does not state how he got the email address he used. According to the 2 nd respondent, a search on the Law Society of England and Wales website would have revealed the email addresses of representatives of Vodafone’s legal department.
It is asserted that David Craig Dunn a solicitor of England and Wales attempted to send a test email to the email address used ( legal@vodafone.com ) on 16 th October 2024 but received a bounce-back error message. The 2 nd respondent’s IT team also informed him that the email address in question has never been set up and an external party sending an email to a non-existent email address on the 2 nd respondent’s domain will not get a bounce back email.
According to the 2 nd respondent, on 29 th October 2024, its counsel Mr. Abbas Esmail sent a test email to a made-up address using the vodafone.com domain to gibberish@vodafone.com and confirmed that despite requesting for both a delivery report and a read report, none of those reports was received. No bounce back report was received.
It is also asserted that the purported service by the newspaper on 2 nd October 2024 is not a recognized mode of service on a foreign respondent under the rules.
Response
The petitioner has filed a preliminary objection, grounds of opposition and a replying affidavit in opposing the application. In the preliminary objection, the petitioner contends that the 2 nd respondent’s application offends the provisions of section 6(2) of the Arbitration Act because there is an undetermined application by the 1 st respondent filed under section 6(1) of the Arbitration Act. Based on this fact, this court lacks jurisdiction to hear and determine the 2 nd respondent’s application.
The petitioner further argues that the 2 nd respondent is not permitted to participate in the 1 st respondent’s application because it does not have any disclosed or alleged arbitral nexus to the petitioner.
It is the petitioner’s position, that on 25 th September 2024 the court (Mwamuye, J.) directed how service was to be effected on the 2 nd respondent. The 2 nd respondent did not appeal against that order or apply for review. Instead, counsel for the 2 nd respondent entered appearance.
The petitioner contends that having obtained leave of court to serve through, among others, email addresses appearing on their websites or registration information and the order having not been set aside, the application is defective and ought to be struct out for being res judicata
The petitioner states that proper proceedings have not commenced thus, the 2 nd respondent has not suffered prejudice and can be served again, if necessary. According to the petitioner, service on the 2 nd respondent was done as required by the rules and this court has properly assumed jurisdiction over the 2 nd respondent.
The petitioner is of the view, that service is not such a fundamental issue that cannot be rectified, repeated, refashioned or otherwise managed by the court so that the matter is determined on merit.
The petitioner maintains that the process server searched for the 2 nd respondent’s email address in the internet and the most logical email address found for use to service was legal@vodafone.com . The 2 nd respondent was served through that email address and no error or bounce back message was received. According to the petitioner, searching the Law Society of England and Wales as suggested by the 2 nd respondent would be contrary to the mode of service directed by the court. The petitioner states that it has since traced the email address of Nickola John Vidovich and effected service again.
Rejoinder
In a rejoinder through a supplementary affidavit by John Vidovich, the 2 nd respondent states that the order for substituted service on the 2 nd respondent was granted because the petitioner’s counsel misled the court through nondisclosure of material facts on 25 th September 2024 that the petitioner had sought leave to serve the 2 nd , 3 rd and 4 th respondents. The petitioner’s notice of motion dated 21 st June 2024 had no prayer for substituted service.
According to John Vidovich, the court issued the order for publication in a newspaper because it was not informed that the 2 nd respondent is a foreign company on whom publication in a local newspaper would not amount to proper service under the rules.
The 2 nd respondent denied that the issue is res judicata because the issue has not been fully and finally determined on merits; the 2 nd respondent was not present when the order was made and the issue raised is jurisdictional in respect of the petitioner’s failure to apply for leave to serve outside the jurisdiction of the court.
According to the 2 nd respondent, the allegation that the petitioner’s clerk found the email address following a google search is misleading because the name of the petitioner’s clerk who searched the internet was not disclosed, maintaining, therefore, that there was no proper service.
The 1 st , 3 rd and 4 th respondents did not take part in the application.
2 nd respondent’s submissions
Mr. Esmail, learned counsel for the 2 nd respondent submits, relying on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, that this court has no jurisdiction since the petitioner did not comply with the rules on service.
Learned counsel maintains that from the petition and the affidavit of service of Mr. Evans Oningo, the petition was filed against it, a foreign company, without seeking leave of the court. He relies on the decision in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] eKLR.
Counsel argues that only when a party obtains leave to serve a foreign respondent in a particular manner in accordance with the provisions of Order 5 and effects that service in the manner prescribed, is service deemed to be properly effected and the court assumes jurisdiction over that respondent. Counsel relies on the decisions in Law Society of Kenya v Martin Day & 3 others [2015] eKLR and Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] eKLR.
According to Mr. Esmail, service is not a technicality. It is what leads a court to assume jurisdiction over a party. Where the rules have not been complied with, the court should decline jurisdiction. The application for leave must also meet the threshold in Order 5 rule 21 and thereafter service must be effected in the manner prescribed by the Court. Reliance is placed on Roberta Macclendon Fonville vs James Otis Kelly III & 3 others [2002] eKLR. He urges the court to allow the motion.
Petitioner’s submissions
Dr. Kiplagat, learned counsel for the petitioner, maintains that the 2 nd respondent entered appearance on 17 th October 2024 without protest and the petition has not materially progressed and, therefore, the 2 nd respondent has not suffered any prejudice given the means by which the court directed that the 2 nd respondent be serviced. He relies on Kanti & Co Ltd v South British Insurance Co Ltd [1981] KECA 4 (KLR).
Dr. Kiplagat asserts that the 2 nd respondent has not appealed or sought a review of the order of 25 th September 2024 which directed the manner of service on the 2 nd respondent. He relies on the decision in Joseph Ndirangu Waweru t/a Mooreland Mercantile Co. & another v City Council of Nairobi [2015] eKLR, for the proposition that the application is barred by the doctrine of res judicata.
Learned counsel maintains that the 2 nd respondent was served as directed by the court and the decisions relied on by the 2 nd respondent are from ordinary commercial suits. According to learned counsel, in constitutional petitions, focus is on substantive ends of justice arising from alleged constitutional violations and not on procedural aspects of litigation. Reliance is placed on Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others [2023] KEELRC 320 (KLR) and Meta Platforms, Inc & 2 others v Motaung & 186 others; Kenya National Human Rights and Equality Commission & 14 others (Interested Parties) [2024] KECA 1262 (KLR).
Counsel has urged the court to dismiss the application with costs.
Determination
I have considered this application, the response and respective arguments by counsel for the parties, as well as the decisions relied on. The issue is whether the court should strike out the 2 nd respondent’s name from this petition for not seeking leave to serve the petition out of jurisdiction.
The 2 nd respondent has urged the court to find that since no leave was sought to serve pleadings outside the jurisdiction of the court, this court has not assumed jurisdiction over it. This is because the 2 nd respondent being a foreign company based in the United Kingdom, service on it could only have been done with leave of the court.
The 2 nd respondent also argues that although pleadings were said to have been served through email, the email address used does not belong to it. The 2 nd respondent maintains that the court should allow the motion on grounds that it lacks jurisdiction over it.
The petitioner on its part has asserted that the 2 nd respondent was properly served following the order issued on 25 th September 2024 that service be effected through email thus, the court has assumed jurisdiction over the 2 nd respondent.
Order 5 rule 21 gives the court powers to allow a party to serve out of jurisdiction. The rule provides that service outside Kenya may be allowed by the court (e) if the suit is one brought to enforce, rectify, rescind, dissolve, annul, or otherwise affect a contract or to recover damages or other relief for or in respect of breach of a contract—made in Kenya, or made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya.
The rule is plain that the court has discretion to allow a party to serve summons (pleadings) out of jurisdiction. This is a discretionary power that the court exercises and, like all discretions, the discretion is to be exercised judicially.
The 2 nd respondent does not deny that the court has powers to allow service out of jurisdiction. The argument is that the petitioner did not seek leave of court to serve out of jurisdiction. It is for this reason that the 2 nd respondent seeks to have its name struck out. Secondly, the 2 nd respondent argues that the email address used does not belong to it.
Order 5 rule 21, is a general provision on service out of jurisdiction. However, Order 5 was amended in 2020 by introducing rule 22B on service by Electronic Mail (emails). Rule 22B provides as follows:
Summons sent by Electronic Mail Service shall be sent to the defendant’s last confirmed and used E-mail address.
Service shall be deemed to have been effected when the Sender shall receive a delivery receipt
Summons shall be deemed served on the day which it is sent, if it is sent within the official business hours on a business day in the jurisdiction sent, or if it is sent outside of the business hours and on a day which is not a business day it shall be considered to have been served on the business day subsequent.
An officer authorized to effect service shall file an affidavit of service attaching the Electronic Mail Service delivery receipt confirming service.
In Raytheon Aircraft Credit Corporation & Another v Air Al- Faraj Limited [2005] 2 KLR 47; [2005] eKLR, the Court of Appeal stated that:
[T]he High Court will not assume jurisdiction in relation to any matter arising from the contract unless the contract is of the nature specified in Order V Rule 21 (e) of the Civil Procedure Rules, that is, inter alia, the contract is made in Kenya or if it is governed by the laws of Kenya or if a breach of contract is committed in Kenya. The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country under Order V Rules 23 and after such summons are served in accordance with the machinery stipulated therein…The record does not show nor is it contended that the respondent moved the High Court for leave to serve the first appellant outside the jurisdiction and that such leave was given…Thus, there cannot be any question that Raytheon was not amenable to the jurisdiction of the High Court and the objection to jurisdiction should have been allowed on this ground alone.
(See also Fonville v Kelly III & Others [2002] 1 EA 71; [2002] eKLR).
Addressing the issue of service of summons on a foreign defendant in Law Society of Kenya v Martin Day & 3 others [2015] eKLR, the Court observed that it is not sufficient for a plaintiff to institute a suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The Summons must be served in the manner provided for by the rules to enable the defendant who has no registered office or business in Kenya to submit to the jurisdiction of the court. His knowledge of the existence of the suit is not sufficient enough to proceed against him.
These decisions were dealing with service of summons under Order 5 rule 21, a different mode of service from that in rule 22B which is a latter rule. Order 5 rule 22B seems to suggest that service can be done without leave “ if it is sent within the official business hours on a business day in the jurisdiction sent.”
It is important to note that rule 22B does not make reference to rule 21 which requires that service outside jurisdiction be done with leave of court. In that respect, service under rule 22B is an independent of the mode of service from that under rule 21 and does not require leave of the court. It provides its own way of service.
As this court observed in Ngungu v KPMG International Co-operative (Commercial Case E139 of 2019) [2022] KEHC 18125 (KLR):
I do not agree with the argument…that leave should be granted before service is effected through email under rule 22B. This is because rule 22B was introduced in response to the challenges brought about by the Covid 19 Pandemic as an alternative to the then known mode of service under rule 21 and ease pressure on litigants as people worked largely from home. It is an independent mode of service not subject to rule 21.
In the present petition, pleadings were served by email. I have perused proceedings for 25 th September 2024. On that day, the court (Mwamuye J), granted the petitioner leave to serve the 2 nd , 3 rd and 4 th respondents by substituted service by placement of advertisement in a newspaper of nationwide circulation and also by email to the 2 nd , 3 rd and 4 th respondents’ email addresses appearing on their websites or registration information. It was on that basis that pleadings were said to have been served on the 2 nd respondent.
The order of 25 th September 2024 allowed the petitioner to use email addresses appearing on the 2 nd , 3 rd and 4 th respondents’ websites or registration information. The court further granted leave to serve by advertisement in a daily newspaper of nationwide circulation. The petitioner argues that service by email was done as ordered by the court. The 2 nd respondent has not sought to set aside or a review those orders and this court has no jurisdiction to sit on appeal over a decision of a court of concurrent jurisdiction.
The other argument is that the email address used to serve the 2 nd respondent was not its email address. The petitioner maintains that the email was found in the internet as directed by the court. Whether the email address used belongs to the 2 nd respondent, is a contested issue which would require evidential proof and cannot be determined on the basis of affidavits. In any case, there is no application seeking to set aside the court order the basis of which service was effected as it was.
The petitioner has argued that service has since been effected on Nikola Vidovich and the 2 nd respondent has entered appearance without protest.
In John Akasirwa v Alfred Inai Kimuso (C.A. No. 164 of 1999) (UR), the Court of Appeal held that “ proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfies itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not.” The Court of Appeal was dealing with service of summons within jurisdiction.
In the present case, service was effected outside jurisdiction as ordered by the court. As already alluded to, my reading of Order rule 22B, shows that it does not require one to to seek leave to serve a foreign defendant as long as the summons (pleadings) is/are sent by email to the defendant’s last known and used email address. In this case, the court ordered service of the 2 nd respondent by email and how the email address was to be obtained.
The purpose of service is to bring to the defendant’s attention that a suit has been filed against him/it to enable the respondent file a response to the claim. The 2 nd respondent filed a notice of appointment of advocates dated 17 th October 2024 to act on behalf of the 2 nd respondent. The notice of appointment was not filed on protest. The 2 nd respondent has knowledge of the petitioner’s claim against it and it would not make sense to again serve the 2 nd respondent a fresh.
In the circumstances of this case, the petitioner having served following leave and directions of the court, and there being no application to set aside the orders of 25 th September 2024 and further still, the 2 nd respondent having appointed advocates to act for it without any protest, I am satisfied that the 2 nd respondent is aware of existence of the petition. I do not see the prejudice the 2 nd respondent has suffered or will suffer. Holding otherwise, would render rule 22B redundant.
Consequently, the application dated 30 th October 2024 is declined and dismissed. Costs of the application will abide by the result of the petition.
Dated and delivered at Nairobi this 27 th Day of June 2025
E C MWITA
JUDGE