Civil Procedure Codes and rules made there under in East Africa demand that service of court process must be in person. Where a person cannot be found, court process may be served at the person’s last known address, on an adult of sound mind found at his residence, through the post office by registered mail or through a widely circulated newspaper.
Service of court process is relevant because when someone is accused or sued, justice demands that he must be notified of the accusation and given an opportunity to put in their defense. The process is also done in the spirit of the right to a fair hearing, which is a non-derogable right.
For example, when Ruth sues Dorothy, natural justice demands that Dorothy be given notice of the suit filed against her and that she be given an opportunity to respond to the accusations leveled against her by Ruth. That way, Dorothy is given a fair hearing. A fair hearing facilitates the dissemination of justice.
Technology however, has changed the modalities of service of court process. For example, some courts openly permit the use of a known email address to serve court process. The most recent and revolutionary mode of service of court process is by use of the popular social media chat application, WhatsApp.
Recently, while at court, I got into an interesting conversation with colleagues regarding service of court process through WhatsApp. One advocate’s contention was that a colleague had asked the court to consider that he had served a certain document on opposing counsel because there were blue ticks on the WhatsApp text he had sent. This one advocate found fault with the call by his colleague that court should consider those blue ticks as proof that indeed, service had been effected. He was not happy, that a court document, an affidavit of service seemed on the risk of extinction simply because of blue ticks on a chat application.
He argued that sometimes, children play with their parent’s phones and may open a message thus creating a false impression that the opposing party has got notice of that court document. He also said that someone may actually see the message, but not open it.
In rebuttal, my good friend Ms. Muturi said that the advocate’s reasons against the use of WhatsApp as a means of service were petty and untenable. She pointed out that there are children at people’s homes and that no one is openly apprehensive that when court process is served at their residence, that the children will open the envelope, tear up the papers and make paper airplanes. She said that it is the duty of everyone to check their phone and to read their messages.
She also rejected the submission that one may see the message but not open it. She likened such a scenario to receiving a letter, but not opening it. How many people surely do that? So, how many people receive messages on WhatsApp and don’t read them? Granted, one may not read their messages in even more than a day, but how long can they keep it up?
Personally, I am for service of court process using WhatsApp. It comes with its advantages. It is fast and very efficient. It is as good as service in person. There are instances where a person evades service of court process. WhatsApp would remedy such instances.
Earlier this month, the High Court of India at Delhi allowed service by WhatsApp, email and text in a matter that was very contentious. The court was convinced to allow such service on ground that, “After several failed attempts to serve the summons…the contact number of the producers and verified it via the app Truecaller, and then sent the intimation and information about the case through WhatsApp”
Rajiv Sahai J ruled, “It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion”
True caller, another mobile application features in the discussion on service of court process through WhatsApp because the application is often used to ascertain the identity of a given phone number. In ordinary service of court process, the process server is also tasked to have identified the person on whom court process is being service. That is why in swearing an affidavit, a court process makes oath and states that he either knew the person on whom he was directed to serve court process or that the person was identified by someone else to be the person on whom he was directed to serve, and that he had a good ground to believe that indeed, he was such person.
Change is inevitable. We must embrace technology and work with it. We must incorporate it in the many court processes there are.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 3 of May 19th, 2017
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