Legal Aid: Are WhatsApp summons valid in court?

Dear Eric,

I read your article and would wish to know what I need to do in case the man fails to show up. I had sued the father of my girl and he was given a demand letter, he never responded and the matter was referred to children's court. The date is 6th of next month.

He was served with the letter through WhatsApp because he mad it impossible to reach him through any other means.    

Kindly advice if the WhatsApp evidence is valid in court.

Dear Reader,

Your question during this time is a testimony that you are fine, even as Covid-19 ravages the country taking with it some lives. Thanks for keeping safe and strong. You have sought to know the rights of your child and understand the court serving processes, among the other pertinent legal issues. In context you seek to understand how the Kenyan civil court functions. Additional legal issues include; jurisdiction of a court in which a matter has been filed; appearance or non-appearance by parties in a civil suit; and the use of technologically driven communication platforms as an avenue for serving a party.

The Civil Procedure Code, found at Chapter 21 of the Kenyan laws alongside Civil Procedure Rules guides the process of civil cases in Kenya. This is supported by the specific law of the issue before the magistrate. For instance, the court will invoke relevant sections of Children’s Act, if at all the matter is for juveniles, just as it would, were the issue at hand been land. It is the responsibility of each person in a civil matter, with or without legal representation to familiarise themselves with Civil Procedure Rules as they detail how civil suits are conducted.

Civil procedures

While your text doesn’t indicate the origin of the demand letter, there is clarity that the children’s court was moved. Civil procedure rules offer criterion that determine in which court a matter should be heard, often referred to as jurisdiction. Jurisdiction refers to the competency of court to adjudicate over a matter, qualified by the following: party, especially the defendant being resident in the geographic authority of the court; the issue or incident being refereed having occurred in that authority space of the court. In your situation the matter was taken to the children’s court because the issues were related to children. You have not mentioned but often cases heard in this court include child custody and maintenance, matters for children in need of care and protection, besides children in conflict with the law among others.

Parties to a civil suit are required by law to appear in court whenever their matter is listed for hearing.

The question of whether one appears or not in person is guided by provisions of section 20 to 24 of the civil procedure rules. Besides, the rules guide the court on what to look for in determining whether a litigant is aware of the suit filed.

However, should the court discern that the person being sued in unwilling to participate in the trial, the magistrate or judge may deliver a judgement in favour of the person who filed the case. 

A party can be served with suit papers through several means. Order 5 rule 8 of the civil procedure rules requires that service on a defendant in person, unless he has a designated advocate or agent empowered to accept service, in which case summons on either of these two shall be sufficient. Where a defendant cannot be served in person suit papers can be delivered in their offices where the person carries out business.

Having considered the challenges where persons being sued refuse to receive suit papers, and now in the context of public health directives related to COVID-19, the Chief Justice on 20^th March 2020, issued guidelines known as practice directions to effect service through technology. Section 5 of these guidelines states that during this period, parties are directed, whenever possible and unless otherwise directed by the court, to serve court documents and processes through electronic mail services and mobile enabled messaging applications as provided for under Order 5 Rules 22B and 22C of the Civil Procedure Rules. This, if interpreted would mean that available technology including WhatsApp may be used. It is of course necessary to show that the other party actually read or opened documents by what is commonly known as “blue tick”. The court may require this evidence either in its original form or through a certified copy.

Even as you prepare for the hearing on 6, it is important to prepare for how you respond to claims that you have not made enough effort to ensure service has been effected. You will, as a process server swear an affidavit indicating the efforts made, and manner in which the defendant responded. For the WhatsApp serving summons, you may have to offer proof that the number you used actually belongs to the specific defendant, either by registration or frequency of use. This would be the basis for requesting the court to make judgment in default (judgement in favour of party who is present).