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ELCAllowedNot stated in the judgment· [2022] KEELC 613 (KLR)

Megji Nanji Patel v Raksha Pareshkumar Shah & another [2022] KEELC 613 (KLR)

High Court of Kenya (Environment and Land Court)
23 March 2022
NMN.A. Matheka
581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa allowed a property disputant to serve court papers by email on a respondent living in England.

What this practically means

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Executive summary

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This was an application dated 2nd August 2021 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 5 Rules 21 and 22B of the Civil Procedure Rules, seeking leave to serve the Summons to Enter Appearance, Originating Summons and Supporting Affidavit upon the Second Respondent out of the jurisdiction in England, and further leave to effect such service through her email address, with costs of the application provided for. The application was grounded on the fact that the Second Respondent resides in London and that the First and Second Respondents were in breach of their obligations under an Agreement for Sale dated 17th January 2018 over Plot No. 913 Mainland North Mombasa, property situated within the court's jurisdiction and sold under an agreement entered into in Kenya. The court considered the application and submissions, and applied the Court of Appeal decision in Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 Others (2005) eKLR, which recognised that although personal service is the best form of service, other forms may be resorted to where personal service is impossible, with leave of court. The court found that a party must attempt personal service and, where that cannot be effected, must seek leave for alternative service. Since the Second Respondent does not reside in Kenya, the application was found merited and granted as prayed, with costs to be in the cause. Delivered at Mombasa on 23rd March 2022 by N.A. Matheka, Judge.

Key legal issues

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01

Whether leave for service out of jurisdiction and by electronic mail on a respondent resident in England could be granted

Holding

The application was merited; leave was granted as prayed because the Second Respondent does not reside in Kenya and the property and agreement are within the court's jurisdiction.

Reasoning

The court accepted that the Second Respondent resides in London, outside its jurisdiction, while the suit property (Plot No. 913 Section VI Mainland North Mombasa) is in Mombasa and the sale agreement was entered into in Kenya. Relying on Abu Chiaba Mohamed, the court reasoned that personal service is the preferred mode but where impossible, a party must seek leave for alternative service, which justified granting the orders sought.

p. 2

Legal principles established

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  • A party must make effort to effect personal service of process, and where personal service cannot be made, must seek leave of court to effect service by an alternative mode.

Court orders

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  1. 1.Leave granted to serve the Summons to Enter Appearance, Originating Summons and Supporting Affidavit upon the Second Respondent out of the jurisdiction in England, as prayed
  2. 2.Leave granted for alternative mode of service by electronic mail
  3. 3.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 5 Rules 21 and 22B

Cases cited (1)

  • Abu Chiaba Mohamed vs Mohamed Bwana Bakari & 2 Others
    (2005) eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 5 Rules 21 and 22B of the Civil Procedure Rules

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, "Megji Nanji Patel v Raksha Pareshkumar Shah & another [2022] KEELC 613 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/613/eng@2022-03-23

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