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Court of AppealDismissedCivil Application No. 51 of 2019· [2020] KECA 769 (KLR)

Parliamentary Service Commission v Salaries and Renumeration Commission & 4 others [2020] KECA 769 (KLR)

Court of Appeal of Kenya
24 April 2020
1,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that serving appeal papers by registered post is valid in Kenya, even without an affidavit of service.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, M'inoti and Kantai, JJA) dismissing an application by the Parliamentary Service Commission to strike out a Notice of Appeal dated 13th December 2018 lodged by the Salaries and Remuneration Commission. The notice was filed against a High Court judgment (G. V. Odunga, J.) of 10th December 2018 in Judicial Review Application No. 686 of 2017, which quashed by certiorari a Gazette Notice published by the Commission on 7th July 2017. The applicant argued that the notice of appeal was never served on it, that no return of service or affidavit of service was exhibited, and that service by registered post without prior sanction of the Court violated the rules, relying principally on Rule 77(1). The 1st respondent countered that it filed the notice and letter bespeaking proceedings timeously and, mindful of the Christmas holidays, served all parties by registered post on 19th December 2018, exhibiting five Postal Corporation of Kenya receipts. The court held that registered post is a recognized mode of service under Order 5 Rule 3 of the Civil Procedure Rules and requires no prior court sanction; that absence of an affidavit of service was not fatal since postal receipts proved service; and that, in any event, the striking-out application was filed out of time under Rule 84 on either possible date of knowledge. Invoking the overriding objective and the principle that rules of procedure are handmaidens of justice, the court dismissed the application with costs to the 1st respondent. The ruling binds lower courts on the sufficiency of registered-post service and on proof of service by means other than affidavit.

Key legal issues

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01

Whether service by registered post required prior sanction of the Court

Holding

Service by registered post is a recognized mode of service under Order 5 Rule 3 of the Civil Procedure Rules and does not require the Court's prior sanction.

Reasoning

Rule 17(1) permits service personally or by any other recognized mode of service as provided under Order 5 of the Civil Procedure Rules. Order 5 Rule 3 provides for service on corporations by registered post. The court found no requirement in Rules 17(1) and (4) or Order 5 Rule 3 that registered post service receive prior sanction; personal service is one mode among others, and the Court may allow any other mode without a mandate to sanction them.

p. 3
02

Whether absence of an affidavit of service defeated proof of service

Holding

The absence of an affidavit of service was not fatal; postal receipts exhibited by the 1st respondent sufficed as evidence of service.

Reasoning

Rule 17(4) provides that proof of service may be given by affidavit unless the Court requires oral evidence. An affidavit is one mode of proof only. The Postal Corporation receipts, rubber stamped 19th December 2018 and bearing the name of the applicant's advocates' firm, constituted evidence of service which, consistently with the overriding objective, the court could not ignore.

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03

Whether the application to strike out was filed within time under Rule 84

Holding

The application to strike out the notice of appeal was filed out of time under Rule 84 on either date of knowledge.

Reasoning

Rule 84 obliged the applicant to apply to strike out the notice of appeal within 30 days from the date of service. The applicant acknowledged awareness of the notice on 15th January 2019, and the postal receipts showed service effected on 19th December 2018. On either date, the application filed on 15th February 2019 was out of time.

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Legal principles established

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  • There is no mandatory requirement that service by registered post, as a recognized mode of service under Order 5 of the Civil Procedure Rules, must receive prior sanction of the Court.
  • An affidavit of service is only one mode of proving service; other evidence such as postal receipts can prove service and its absence is not fatal.
  • Rules of procedure are handmaidens of justice and notices of appeal should be sustained where consistent with the overriding objective.

Court orders

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  1. 1.The Notice of Motion dated 14th February 2019 seeking to strike out the Notice of Appeal dated 13th December 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
On appeal from
High Court at Nairobi
Judicial Review Application No. 686 of 2017
Jurisdiction invoked
Rules 42 and 77 of the Court of Appeal Rules (CAR)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Parliamentary Service Commission v Salaries and Renumeration Commission & 4 others [2020] KECA 769 (KLR)", Case Analysis (2020). Civil Application No. 51 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/769/eng@2020-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.