Pebler Holiday Homes Limited v Mwadago & 2 others (Environment & Land Case E048 of 2022) [2024] KEELC 6027 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#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
The objection was upheld; the documents were struck out from the Plaintiff's further list and bundle.
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.
Whether service of court documents via WhatsApp by an advocate is permissible
Service by mobile-enabled messaging applications is permitted; there is nothing barring counsel from effecting service as an officer of the court.
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.
Legal principles established
#- 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
#- 1.The objection by the 3rd Defendant is sustained
- 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.Costs to follow the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs shall follow the outcome of the main suit.
In my view this would not be evidence properly obtained by the Plaintifi and its admission would render the trial unfair.
Order 5 Rule 22C permit service by mobile enabled messaging applications such as the WhatsApp communication herein.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.