Civil Procedure (Amendment) Rules, 2020 – Legal Notice Number 22 of 2020

The Civil Procedure (Amendment) Rules, 2020 (Amendment Rules) set out certain
amendments to the Civil Procedure Rules, 2010 (Principal Rules) which this paper
outlines in summary.

 Third Party Proceedings

Rule 2 of the Amendment Rules amends Order 1 Rule 15 (3) of the Principal Rules to
require defendants to first obtain leave to serve a Third Party Notice on a third party
and upon such leave being granted, serve the Notice within 14 days.

 Parties’ Contact Details

Rule 3 of the Amendment Rules amends the Principal Rules by inserting Order 1 Rule
26 which introduces the formal requirement to provide both postal and physical
address (which is common practice) and also telephone numbers and email
addresses in the pleadings. There is also a requirement to notify the court in the
event of a change of any of these contact details.

 Small Claims

Rule 4 of the Amendment Rules amends Order 3 Rule 1 (3) (a) of the Principal Rules
by increasing the value of small claims from Kshs.49,999/= to Kshs.200,000/=.

 Issue of Summons

Rule 5 of the Amendment Rules amends Order 5 Rule 1 (6) of the Principal to require
that summons be collected within 30 days of issue. There is no longer a requirement
for notification of issue of summons by the court. Parties instituting suits will
therefore have to actively pursue the issue of summons and collect the same within
30 days or risk abatement of their suits.

 Service of Summons - Companies

Rule 6 of the Amendment Rules amends Order 5 Rule 3 (b) (iii) of the Principal Rules
to provide that in cases where the defendant is a company, the summons may only
be served by leaving a copy at the place where the company carries on business if
there is no registered office or physical address.
  Service of Summons – Out of Jurisdiction

Rules 7 and 9 of the Amendment Rules amend Order 5 Rules 22 (1) (d) and 25 of the
Principal Rules to allow for an application for leave to serve summons out of the
country in any case where the defendant is not resident in Kenya as opposed to the
previous provision which included residents of the Commonwealth.

 Service of Summons – Courier Service

Rule 11 of the Amendment Rules amends the Principal Rules by inserting Order 5
Rule 22A which provides for service of summons on a Defendant by courier if the
following requirements under sub-rule (1) are met:
 The Plaintiff seeks leave of the court;
 The courier service provider is internationally registered and recognized; and
 The service is effected at the Defendant’s last known address.

Such 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.

The affidavit of service in respect of such service shall attach the way bill receipt or
consignment note from the courier service provider confirming service and shall be
proof of service.

 Service of Summons – Electronic Mail Service

Rule 11 of the Amendment Rules amends the Principal Rules by inserting Order 5
Rule 22B which provides for service of summons on a Defendant by email as follows:

 Summons 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 receives 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
and 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 business day
subsequent.
  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.

 Service of Summons – Mobile Messaging Applications

Rule 11 of the Amendment Rules amends the Principal Rules by inserting Order 5
Rule 22C which provides for service of summons on a Defendant by mobile-enabled
messaging applications as follows:

 Summons may be sent by mobile-enabled messaging Applications to the

defendant’s last known and used telephone number.

 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
and 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 business day
subsequent.

 Service shall be deemed to have been effected by mobile-enabled messaging

services 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 delivery receipt confirming service.

The High Court (Lesiit J) in the Judgment delivered on 26th May, 2017 in Omar Shallo
v Jubilee Party of Kenya & Another [2017] eKLR after considering the provisions of
Order 5 of the Civil Procedure Rules on service held that:

Considering the above Rules which are applicable to the petitions herein, service
by means of WhatsApp was outside the means recognised by the law, and
would therefore, be bad service. WhatsApp is an instant messaging service,
which uses the internet. Its use would therefore, raise questions of proof of
delivery, acknowledgement of receipt of service, proof of identity of the
intended recipient. Questions of authentication of such service would equally
arise.

It remains to be seen how these challenges will be addressed in practice as the new
amendments to the Principal Rules on service of summons are implemented.
  Case Management

Rule 13 of the Amendment Rules amends the Principal Rules by deleting and
replacing the entire Order 11. The amendment now requires parties to carry out case
management as opposed to the pre-trial procedures that were previously in place.

The new Order 11 has the following salient features:

 The new Order 11 applies to all suits except small claims (less than
Kshs.200,000/=) and any other suit as the court may order – Rule 1
 Plaintiff to file the case management checklist within 14 days of close of
pleadings – Rule 2
 Case management conference (CMC) to deal with all pre-trial issues including
possibility of settlement, formulation of a timetable to deal with pre-trial
issues and identification of issues for determination at the trial – Rule 3 (1)
 Only firm on record to appear at CMC – Rule 3 (4)
 Checklist to be served on all other parties within 14 days of filing together
with invitation to fix a date for case management – Rule 3 (7)
 Case management request to be served at least 7 days before CMC – Rule 3
(8)

Rule 27 of the Amendment Rules amends the Principal Rules by deleting Appendix B
and substituting it with a new Appendix B that sets out the form of the Case
Management Checklist and the Case Management Request.

 Dismissal for Non-Attendance

Rule 14 of the Amendment Rules amends Order 12 Rule 6 (1) of the Principal Rules
as follows:

Subject to subrule (2) and to any law of limitation of actions, where a suit is
dismissed under this Order the plaintiff may bring a fresh suit or may apply to the
court to reinstate the suit.

Order 12 Rule 6 (2) of the Principal Rules provides that when a suit has been
dismissed under rule 3 no fresh suit may be brought in respect of the same cause of
action.

Order 12 Rule 3 (1) of the Principal Rules provides that if on the day fixed for hearing,
after the suit has been called on for hearing outside the court, only the defendant
attends and he admits no part of the claim, the suit shall be dismissed except for
good cause to be recorded by the court.
As the plaintiff cannot file a fresh suit on the same cause of action in the case of a
dismissal for non-attendance the amendment cures this restriction by allowing a
plaintiff to apply for reinstatement subject to any law of limitation.

 Dismissal for Want of Prosecution

Rule 16 of the Amendment Rules amends Order 17 Rule 2 of the Principal Rules by
inserting sub-rules (5) and (6) as follows:

(5) A suit stands dismissed after two years where no step has been undertaken.

(6) A party may apply to court after dismissal of a suit under this Order.

Therefore a suit is automatically dismissed if no step has been taken for 2 years.
Although this amendment increases the time period to 2 Years (from 12 months), it
removes the requirement for a notice to show cause to be issued by the court or for
a party to make a formal application for dismissal under Order 17 Rule 2 (2).

This will be particularly useful in saving judicial time and may in practice eliminate
the need for service weeks during which matter that have not been prosecuted are
listed for Notice to Show Cause why they should not be dismissed.

 Appeals

Rule 22 (a) of the Amendment Rules amends Order 42 Rule 11 of the Principal Rules
to require the High Court to give directions on the appeal within 30 days of filing of
the appeal.

Rule 22 (c) of the Amendment Rules amends Order 42 Rule 13 (1) of the Principal
Rules to require the Registrar of the High Court to list the appeal for directions within
21 days from the date of service of the Memorandum of Appeal. This amendment
shifts the obligation to list the appeal for directions from the appellant to the court.

 Judicial Review

Rule 25 of the Amendment Rules amends Order 53 Rule 1 (2) of the Principal Rules
to include a requirement that the affidavit filed together with an application for leave
to institute judicial review proceedings must verify the facts [in the Statement of
Facts] and include averments that:
 there is no other cause pending;
 there have been no previous proceedings in any court between the applicant
and respondent, over the same subject matter; and
 the cause of action relates to the applicants named in the application.
Rule 26 of the Amendment Rules amends Order 53 Rule 1 (3) of the Principal Rules
to provide that where leave denotes stay, impose such terms as to costs and as to
giving security as he thinks fit including cash deposit, bank guarantee or insurance
bond from a reputable institution.