AMENDMENTS TO THE CIVIL PROCEDURE RULES,2010
BROUGHT BY THE CIVIL PROCEDURE (AMENDMENT) RULES,2020.
The Civil Procedure Rules of 2010 have been amended through Legal Notice 22 of 2020, which has introduced the Civil Procedure (Amendment) Rules of 2020. These changes have come after a decade of implementing the 2010 Rules. The amendments are conscious of the technological advancements made within the legal field in the last 10 years and strive to make civil procedure more seamless. The Civil Procedure (Amendment) Rules 2020 are geared towards the achievement of efficacy in the handling of civil suits.
Key Amendments
The following are some of the significant amendments made by the Civil Procedure (Amendment) Rules of 2020:
Third party notice
Provision of Contacts in Pleadings
Case Track Allocation; Small Claim
Collection of Summons
Service out of Kenya
Methods of Service
Authority to Act on Behalf of the Party
Case Management and Conference
9. Reinstatement of Suit under Order 12
10. Automatic Dismissal of a Suit
11. Claiming Costs from the Magistrates Court
12. Execution of a decree
13. Directions before hearing
14. Power of Registrar to sign summons
15. Application for Judicial Review
The Amendments
1. Third party notice
Order 1 rule 15 (c) provides for the third party notice obtained by the defendant after applying for leave to issue the notice via ex-parte chamber summons within 14 days after the close of pleadings. This notice was previously to be filed within fourteen days of service but this has been amended. According to the new rules, the third party notice is required to be filed and served within 14 days of leave. Therefore, time starts running once leave to issue the notice has been obtained from the court.
2. Provision of Contacts in Pleadings
A new rule has been introduced in Order 1. The new rule 26 of Order 1 introduces a new concept by expanding the media through which parties can be contacted. The rule provides a list of contact details that a party to a suit is required to provide to the Court when filing pleadings. This list includes the party’s postal address; telephone number; email address; as well as physical address. This is evidently a stride away from the previous focus on the postal and physical address. The party also is required to notify the Court should there be any changes to the contact details provided.
3. Case Track Allocation; Small Claim
Civil suits are generally classified in three categories namely: small claim, fast track and multi-track. These categories are provided for under Order 3 rule 3. The 2020 Amendment Rules have however re-defined the matters now falling under small claim. Rule 3(a) has been amended to define small claim as a simple claim whose monetary value does not exceed two hundred thousand shillings (Kshs. 200,000). This is in contrast to its previous definition which warranted a suit’s monetary value to not exceed forty nine thousand nine hundred and ninety nine shillings (Kshs. 49,999) and the suit not to involve more than two parties. The clear distinction with the new rule is the removal of the consideration of the number of parties to the suit. Also notable, is the increase in monetary value of the subject matter by one hundred and fifty thousand and one shilling (Kshs. 150,001).
4. Collection of Summons
An amendment of Order 5, rule 1(6) has been further introduced. With the Amendment Rules, summons shall be collected for service within thirty days of issue, failure of which, the suit abates. Time for collection of summons therefore starts once the summons have been issued. This amendment differs from the previous provision which gave notification as an alternative factor to be considered for time to start running.
5. Service out of Kenya
Order 5, rule 22 provides guidance on service of other process out of the jurisdiction. Sub-rule 1 has been amended by deleting the terms “neither a Commonwealth citizen nor residing within the Commonwealth” and replaced by “not resident in Kenya”. The amendment is set to do away with the adoption of service rules based on the categorization of Commonwealth and non-Commonwealth jurisdictions. A similar amendment has been effected in Order 5 rule 25 where an application for leave to serve a defendant out of Kenya must be supported by evidence of where the person may be found and whether he is resident in Kenya or not. The aspect of being a resident in Kenya has replaced the 2010 requirement of either being a Commonwealth citizen or a British protected person. Geographical considerations during service are a necessity that dictate the process that ought to be applied. The general implication of this amendment seems to be a shift of the geographical focus from criteria that was previously based on colonial determinants, to a modern and arguably, more socially acceptable variant. This is territorial delimitation based on internationally recognized state boundaries. The aspect of being a resident or non-resident in Kenya is a welcomed threshold that seeks to determine the instances in which processes for service out of Kenya may apply. It is however notable that this change does not apply across all provisions of the Civil Procedure Rules of 2010 which make reference to the distinction between Commonwealth and non-Commonwealth residents. The drafters of the Civil Procedure (Amendment) Rules 2020 left out Order 5 rule 27 as well as Order 28 rule 17 in this amendment. The two orders which make reference to processes regarding service of defendants who reside out of Kenya and commissions issued by courts respectively, are yet to be amended to reflect the afore-mentioned change. Whether intentional or an oversight on the drafter’s part, the intended effect of the amendments to Order 5 rules 22 and 25 is in my opinion, incomplete.
6. Methods of Service
New methods of service have been introduced such as;
- Service out of Kenya by Internationally Registered and Recognized Courier Services.
This had been brought under Order 5 via rule 22A. This new rule allows for summons to be sent to the Defendant through an internationally registered and recognized courier service provider to the defendant's last known physical address. However, service in this form can only be effected with the leave of the Court. Service using this method 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. 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 confirming service. Moreover, an affidavit of service will be sufficient proof that service has effected, even if the person being served declines to acknowledge receipt. The rule provides two criteria for identifying the courier service provider that should be used in service out of Kenya. It calls for the provider to be both internationally registered as well as have international recognition. Examples include: DHL, UPS, FedEX, Aramex etc. Furthermore, by tracking the delivery process, the process server will be able to know when the summons were delivered and as such, attach the way bill receipt or consignment note from the courier service provider as proof of the same.
- Service by E-mail
This has been introduced under Order 5 rule 22B. Service of summons can now be effected by Electronic Mail Service to the defendant's last confirmed and used E-mail address. Confirmation of service is done when the Sender receives a delivery receipt. The date of service is deemed to be the day on which the summons were is sent; if it is within the official business hours on a business day in the jurisdiction sent. For example, in Kenya, that would be between 8am and 5pm from Monday to Friday. In the event that the summons were emailed outside of the business hours and on a day that is not a business day, they will then be considered to have been served on the next business day. An officer of the court who is duly authorized to effect service is required to file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.
- Service by Mobile-enabled Messaging Applications
This has also been introduced in Rule 22C of Order 5. Messaging Apps such as WhatsApp and WeChat can now be used to effect service on a defendant. This has been one of the biggest moves to embrace the technological advancements in communication by the legal field. The rule signifies an acceptance of innovative ways of communication and an assimilation of the same in the legal process. As per this rule, Summons may be sent by mobile-enabled messaging applications to the defendant's last known and used telephone number. In similar fashion to service be email, summons shall be deemed served on the day which they are sent; if this is within the official business hours on a business day in the jurisdiction sent. If they are sent outside of the business hours and on a day that is not a business day, they shall be considered to have been served on the business day subsequent. Service shall also be deemed to have been effected when the Sender receives a delivery receipt. This provision is set to spark debate on the threshold that ought to be applied by courts in interpreting what would constitutes a delivery receipt in messaging app such as WhatsApp. An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the delivery receipt confirming service.
7. Authority to Act on Behalf of the Party
The Civil Procedure (Amendment) Rules of 2020 have amended Order 9 rule 2(a) to allow persons to act as recognized agents for parties if they hold an affidavit sworn by the party authorizing them to make such appearances and applications and do such acts on their behalf. This is a change from the previous provision which only allowed agents holding powers of attorney. Therefore, agents can act, subject to approval by the court, in any particular suit if they either hold powers of attorney or an affidavit sworn by the party on whose behalf they wish to act.
8. Case Management and Conference
The 2020 Amendment Rules have completely deleted Order 11 on pre-trial directions and conferences and replaced it with a new Order 11 on case management and conferences. The new Order 11 sets out detailed steps required to carry out proper case management and conferencing. The Order applies to all suits aside from small claims or such other suits as the Court may order to vary the whole or any part of this Order. With the replacement of the rules under Order 11, the appendices attached to the previous Order have similarly been replaced to coincide with the rules on case management. The amendments have also substituted appendices B, C and D by introducing forms for the case management checklist, the case management conference certificate and the case management order.
9. Reinstatement of Suit under Order 12
Order 12 on hearing and consequence of non-attendance and specifically, the effect of dismissal under rule 6 has been amended. The amendment has been made to rule 6 sub-rule 1, whose effect is to allow an application for reinstatement of suit to be made once a suit has been dismissed under this Order. Previously, the only remedy made available to the Plaintiff upon the suit’s dismissal was bringing a fresh suit. However, with this amendment, the Plaintiff is now at liberty to choose whether they would like to institute a fresh suit or apply for the reinstatement of the dismissed suit. Therefore, a suit dismissed for non-attendance can be reinstated.
10. Automatic Dismissal of a Suit
Order 17, rule 2 makes pronouncement on the need for a notice to show cause why a suit should not be dismissed where no application has been made or step taken by either party for a year. Upon issuance of this notice to the parties, the court may make such orders as it thinks fit to obtain expeditious hearing of the suit if cause has been given to its satisfaction. However, if they parties fail to show any cause, the court is then required to dismiss the suit. An amendment to this rule has been made through the introduction of two more sub-rules. Order 17 rule 2(5) and (6) have been added. Sub-rule 5 states that a suit stands dismissed after two years where no step has been undertaken. This has the implication of causing the automatic dismissal of suit after two years of dormancy. Meanwhile, sub-rule 6 allows a party to apply to court after dismissal of a suit under this Order.
11. Claiming Costs from the Magistrates Court
New rules have been introduced under Order 21 rule 9. These rules are aimed at providing guidance on the process of claiming costs at the subordinate courts and encompass the following;
Order 21, rule 9A is on the filing and service by the party, of the letter as to costs. Under this Rule, a party claiming costs at a Magistrates Court is required to file a written request, statement of costs and supporting documents with the Court and serve it on the other parties with a breakdown of the costs sought.
Order 21, rule 9B requires the Respondent to admit, partially reject or wholly reject letter once served with the written request, a statement of costs and supporting documents under sub-rule 1. Their response may be filed with the Court within seven days of service.
Order 21, rule 9C requires the Court to consider the written request, statement of costs and supporting documents filed by the parties within fourteen days of response by the respondent and make appropriate orders as to costs. Therefore, the court should make a determination within 14 days.
Order 21, rule 9D further requires that the Court be guided by the Advocates (Remuneration) Order in awarding costs.
12. Execution of a decree
Order 22 rule 7(2)(j)(ii) has been amended to make specific reference to the nature of property under this provision. The rule speaks on the applications for execution of a decree which should contain a tabular form providing particulars of the mode of assistance required from the court whether by the delivery of any property specifically decreed or by attachment and by the attachment and sale of any immovable property, or by the sale without attachment or by proclamation and sale of immovable property. Not only has reference been specifically made to immovable property, but proclamation and sale of property has also been added as an option under this provision.
13. Directions before hearing
Order 42, rule 13 on directions before hearing has been amended in sub-rule 1 to task the Registrar with causing the appeal to be listed for directions by the judge in chambers once notice has been delivered to the parties not less than twenty-one days after the date of service of the memorandum of appeal.
14. Power of Registrar to sign summons
Order 49 rule 1A has been introduced after Order 49 rule 1. Order 49 generally deals with the special powers conferred upon Registrars. Rule 1A essentially widens the scope of powers belonging to Registrars. As per the rule, a Registrar now has the power to sign summons to enter appearance.
15. Application for Judicial Review
Order 53, rule 1 requires that leave be sought before making applications for mandamus, prohibition and certiorari. Sub-rule 2 has been amended to allow an application for such leave to be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject -matter and that the cause of action relates to the applicants named in the application. The amendment makes it a requirement to plead sub judice, res judicata and locus standi in an application for leave to seek judicial review. Sub-rule 3 has been further amended to allow the judge to 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, where leave denotes stay. This differs from the previous provision where the same discretion was to be applied in the general granting of leave.
CONCLUSION
The Civil Procedure (Amendment) Rules 2020 have made several changes to existing procedures and introduced new rules to cater to various aspects of civil procedure. The new rules that have been introduced are in reference to the provision of contacts in pleadings, the introduction of courier service out of Kenya, service by e-mail, service by messaging applications, case management and conference, as well as the claiming of costs at the Magistrates Court. These amendments usher in a new decade, in which civil procedure is made more efficient.
Author: Doris Kendi, a trainee advocate at the firm of Meritad Law Africa LLP with interests in Litigation and Corporate Law. She is also knowledgeable in the field of Human Rights and International Law and loves Sudoku.
