Legal notice or messages sent through WhatsApp messaging app are valid legal evidence under law, and the blue tick over the messaging app is a valid proof that the respondent has accepted the physical copies of the communication, Law Society of Kenya (LSK) Chair Nelson Havi has clarified.
Summons are issued by a court of law requiring that a person appears before a judge on a certain date or risk being held in contempt of the court. This could carry a fine not exceeding Ksh200,000 or imprisonment for up to six months.
The proposed changes are captured in the new Civil Procedure (Amendment) Rules 2020 under Order 5 Rule 22C which would make it easier for suspects to be served without necessarily tracking them down.
“Summons may be sent by mobile-enabled messaging applications to the defendants’ last known and used telephone number,” the recommendations read in part.
Kenyans.co.ke, a local news website spoke to Law Society of Kenya (LSK) Chair Nelson Havi on the new proposal with the lawyer terming it as progressive and important to the advancement of justice.
“These amendments are most welcome because they are progressive bringing justice closer to the mwananchi,” Havi was quaoted by Kenyans.co.ke
He further addressed the question of which messaging platforms would be utilised, providing that as other changes are made, Twitter may be used to serve a summons.
“For a start, the recognised mode would be text or an email and WhatsApp. But moving forward there will be no problem serving people with verified Twitter accounts,” he provided.
The city lawyer further extolled the benefits of WhatsApp as opposed to email as delivery reports would be available.
“WhatsApp will give the sender delivery reports. If you switch off the blue ticks that is your problem.”
He concluded by expressing his optimism towards the new rules, “It’s a progressive avenue, we embrace it, and it will enable us to deliver justice quickly and widely.”
Once adopted, Kenya will join other countries such as India which in 2018 allowed service of summons to be effected through WhatsApp.
The Kenyan judiciary had previously not accepted the service of summons through WhatsApp as in the case of Omar Shallo v Jubilee Party of Kenya & another in 2017.
“Service by means of WhatsApp was outside the means recognized 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, acknowledgment of receipt of service, proof of identity of the intended recipient. Questions of authentication of such service would equally arise,” stated Justice Lesiit J. in the ruling.