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ELCAllowedNot stated in the judgment

Pebler Holiday Homes Limited v Mwadago & 2 others (Environment & Land Case E048 of 2022) [2024] KEELC 6027 (KLR)

Environment and Land Court
17 September 2024
1,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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In an ongoing land suit, the 3rd Defendant filed a notice of objection against the Plaintiff's further list and bundle of documents dated 12/2/24, specifically item 11 comprising WhatsApp correspondence between the Plaintiff's advocate, Mr. Moses Omulanya, and the 3rd Defendant. The messages were exchanged when the advocate effected service of pleadings and a hearing notice by WhatsApp, the 3rd Defendant's telephone number having been obtained from a DCI officer. The Plaintiff, through a replying affidavit of its CEO, argued the communication was pivotal to pleaded allegations of fraud against the 1st Defendant and that the advocate, as an officer of the court, lawfully effected service. The court held that service by WhatsApp was proper under Order 5 Rule 22C and that the affidavit of service was duly filed. However, it rejected the Plaintiff's assertion that the messages shed light on the pleadings, holding that the WhatsApp platform was not the proper forum for the 3rd Defendant to respond to pleadings, and that using service communications as the Plaintiff's evidence would render the trial unfair, invoking Article 50(4) of the Constitution and the exclusionary test in Philomena Mbete Mwilu and Gumede vs. S. The objection was sustained and the impugned documents struck out. Costs were reserved to follow the outcome of the main suit. The court also noted the Plaintiff would have ample opportunity to cross-examine the 3rd Defendant at trial based on his pleaded defence and filed documents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 3rd Defendant's objection to the inclusion of the WhatsApp correspondence in the Plaintiff's further list and bundle of documents should be upheld

Key legal issues

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01

Whether WhatsApp correspondence between the Plaintiff's advocate and the 3rd Defendant, obtained during service of documents, is properly admissible as part of the Plaintiff's evidence

Holding

The objection was upheld; the documents were struck out from the Plaintiff's further list and bundle.

Reasoning

The court accepted that counsel could lawfully effect service by WhatsApp under Order 5 Rule 22C and that the advocate was an authorised officer of the court. However, the 3rd Defendant's responses on WhatsApp were not the proper forum for his defence; his evidence belongs in his pleaded defence and documents. Using service-related communications as the Plaintiff's evidence would render the trial unfair, engaging Article 50(4) of the Constitution and the exclusionary principle in Mwilu and Gumede. Fraud was already adequately pleaded, so the material was unnecessary.

p. 3
02

Whether service of court documents via WhatsApp by an advocate is permissible

Holding

Service by mobile-enabled messaging applications is permitted; there is nothing barring counsel from effecting service as an officer of the court.

Reasoning

The court found Order 5 of the Civil Procedure Rules apposite, particularly Rules 1(b), 3 and 22C which permit service by mobile-enabled messaging applications. The affidavit of service was duly filed under Order 5 Rule 22C(4) by the advocate as an authorised officer of the court, and the court attributed no ill motive since the conversation was initiated by the 3rd Defendant.

p. 2

Legal principles established

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  • Evidence obtained in violation of rights in the Bill of Rights must be excluded if its admission would render the trial unfair or be detrimental to the administration of justice (Article 50(4)).
  • Advocates may lawfully effect service of court documents by mobile messaging applications under Order 5 Rule 22C, but communications obtained during service may not be deployed as the party's evidence at trial.

Court orders

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  1. 1.The objection by the 3rd Defendant is sustained
  2. 2.The documents forming item 11 of the Plaintiff's further list and bundle of documents dated 12/2/24 are struck out from the said list and bundle
  3. 3.Costs to follow the outcome of the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil suit; notice of objection to documents filed under the Civil Procedure Rules (Order 5) and Evidence Act, Cap 80

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the objection is sustained and the documents forming item 11 on the Plaintifis further list and Bundle of documents dated 12/2/24 be and is hereby struck out from the said list and bundle.
p. 3Final orders - striking out of impugned documents
Costs shall follow the outcome of the main suit.
p. 3Costs order
In my view this would not be evidence properly obtained by the Plaintifi and its admission would render the trial unfair.
p. 3Exclusion of improperly obtained evidence
Order 5 Rule 22C permit service by mobile enabled messaging applications such as the WhatsApp communication herein.
p. 2Service by WhatsApp

Issues in the judgment

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minor

Judgment states the plaint was 'dated 26th October 2022 and filed on 20th October 2022' - the filing date precedes the dating date, an apparent internal inconsistency.

minor

The 3rd Defendant's submissions are dated 15/03/23, which precedes the objection filed 6th March 2024; the judgment itself flags this with '(sic)'.

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, "Pebler Holiday Homes Limited v Mwadago & 2 others (Environment & Land Case E048 of 2022) [2024] KEELC 6027 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6027/eng@2024-09-17

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