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Personal Finance

Email, social media process service valid

Supreme Court building
The Supreme Court building in Nairobi. The law has been amended to allow service of process by social media. FILE PHOTO | NMG 

Process serving or serving of court documentation may pose a challenge in a lawsuit where the opponent cannot be found. This is due to the principle of fair administration of justice that a party cannot be condemned unheard.

Where a party cannot be found, it becomes very challenging for the case to proceed. Many litigants face setbacks in having their suits proceed when the other party cannot be physically traced.

The position was that court consent was required to have what is known as “substituted service” where the court could allow the applicant to serve his opponent through post or by advertisement in the dailies. This has been very expensive and time- consuming as a formal and technical application has to be done before the court issues its consent. This leads to increased legal fees and at times advertisement costs.

Perhaps it is with this background that the Civil Procedure Act was amended to allow for service of court process through e-mails and other mailing apps like Watsapp. As long as the process is served by a licensed process server, for example advocates, then it is legally recognised.

This is a good and practical development in the law because most business today is done through e-commerce. It is common to conduct business without any physical contact. In many cases of e-commerce and online transactions, parties seldom have details of the other party’s physical address unless this is specifically requested for. Many times when you purchase an item online, the only details you have of the seller if a phone number and rarely an e-mail.

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The transaction occurs when you order the item, pay for it digitally and have it delivered to you at your cost. In the event of a dispute it becomes difficult to locate the offending party.

The change in law will now allow you to serve the court process through the last known mobile phone number using mobile applications or through e-mail.

This new law has several impacts. Firstly it will change the operations in law firms. The companies can take advantage of this new law by opting to institute this mode of service rather than serving parties physically. The savings made will be in the form of time and disbursements such as transport. The law will make litigation easier for litigants as it will assist them overcome challenges in serving court process.

It may lead to changes in the way contracts are drafted. The “Notices” clause of most contracts provide that communication shall be via registered post. This change may also affect contract drafting to allow for mobile app and e-mail notices. This is a progressive and practical way of drafting commercial contracts.

The change in law may be emulated in other practises. For example companies may now begin to recognise e-mail and mobile app service of notices as valid.

This is a good example of the interrelationship between law and technology. The law has recognised technological changes and going forward it is a good sign that many other laws may be amended to allow for technological advancements. For example, the law may change to specifically recognise a video conferenced meeting as a validly attended one. Currently a lot of companies recognise the same.

I would recommend that businesses put in place structures to ensure that e-mails are checked regularly. Once the e-mail is sent, it is deemed to have been served. It is also important to use valid e-mails and phone numbers when signing contracts.

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