How Claimants Lose Cases Against Big Tech Before Trial Begins

Suing a global technology company in Kenya is difficult enough on the merits. Many claimants never reach the merits at all, because their cases collapse on a question that seems almost administrative: how the company was served. The temptation is understandable. The company has an email address, its lawyers in Nairobi have already written letters about the dispute, and the rules now allow service by email. Why go to the trouble and expense of serving court papers in California or Dublin?

The answer is that, where the defendant is outside Kenya, the court does not acquire jurisdiction over it until the claimant has obtained leave to serve it abroad and has then served it in the manner the rules require. An email sent before that step is taken does not cure the defect. Kenyan courts have set aside judgments and upheld jurisdictional objections on exactly this ground, sometimes years into the litigation.

Leave first, service second

The Civil Procedure Rules provide that a summons may be served outside Kenya only with the leave of the court, and only where the case falls within one of the grounds listed in Order 5 rule 21, such as a contract made in Kenya, a tort committed in Kenya, an injunction sought as to something to be done in Kenya, or a foreign party who is a necessary or proper party to a suit against a defendant duly served here.¹ An application for leave must be supported by evidence that the plaintiff has a good cause of action, showing where the defendant is or may be found and demonstrating that the case is a proper one for service out of Kenya.²

The Court of Appeal has long held that the High Court assumes jurisdiction over a person outside Kenya by granting leave to serve the summons abroad.³ The sequence matters. Leave comes first, service in accordance with that leave comes second, and only then does the court have jurisdiction over the foreign defendant.

The Misnak warning

The leading illustration is Misnak International (UK) Ltd v 4MB Mining Ltd. A mining company sued a United Kingdom logistics firm in Mombasa and applied, among other things, for leave to serve the summons on the firm by email, with a copy to its English solicitors. The High Court certified the application as urgent and directed that it be served, but never ruled on the prayer for leave to serve outside the jurisdiction. The papers were emailed to the foreign company, which filed a conditional appearance and objected to the court’s jurisdiction. The High Court dismissed the objection, treating the defects as technicalities and relying on the fact that the company plainly knew about the suit.⁴

The Court of Appeal allowed the appeal. It held that a court assumes jurisdiction over a foreign defendant only upon service of the summons pursuant to leave, and not a moment sooner. By directing service before deciding whether to grant leave, the High Court had placed the cart before the horse, and the urgency of the matter did not excuse skipping the jurisdictional step. The court also adopted the view that a defendant’s awareness of a suit is not enough without service in the manner the rules require. The preliminary objection should have been upheld on that ground alone.⁵

Mwilu v BBC: email without leave

The same principle defeated a default judgment against the BBC. In Mwilu v British Broadcasting Corporation, the plaintiff sued over articles published on the BBC’s website. The summons was served on a Nairobi law firm that had corresponded on the BBC’s behalf before the suit, but the firm returned the papers, saying it had no instructions to accept service. The plaintiff then purported to serve the BBC by email in the United Kingdom, without having obtained leave, and obtained judgment in default of appearance.⁶

The High Court set the judgment aside. Applying Raytheon and Misnak, it held that because no leave had been sought or granted, the court had not assumed jurisdiction over the foreign defendant. It added that the email service was in any event unproven. The rules provide that service by email is deemed effected when the sender receives a delivery receipt, and require the affidavit of service to attach that receipt, and no such receipt had been filed.⁷ The court observed that, had leave been obtained, it would have had little difficulty in refusing to set the judgment aside.⁸

Two lessons follow. Pre-suit correspondence with a foreign company’s local lawyers does not make those lawyers its agents for service. And the email service rules govern how a defendant is served, not whether a foreign defendant may be served at all.

When the courts have been more forgiving

The case law is not uniformly strict, and the more forgiving decisions show what a claimant can do to rescue a flawed start.

In Motaung v Samasource Kenya EPZ Ltd, the Employment and Labour Relations Court accepted that leave to serve the Meta companies outside Kenya ought to have been obtained, but declined to strike out the petition. It held that substantive justice was the ultimate goal and gave the petitioner an opportunity to comply with Order 5 rule 21.⁹ According to the petitioner, leave was later granted and the Meta companies were served by international courier and email, and the Court of Appeal declined to disturb the trial court’s exercise of discretion.¹⁰ In the related moderators’ petition, the court granted leave at the outset for the Meta companies to be served at their principal offices in the United States and Ireland.¹¹

In the Worldcoin case, the foreign respondents objected to service late in the proceedings. The High Court rejected the objection. It held that where a foreign party has an authorised agent in Kenya, leave to serve outside Kenya may not be required, and that the respondents, having appeared through Kenyan advocates and participated in the proceedings without protest, had waived any irregularity. It added that courts should not insist rigidly on outdated procedures for service abroad in an era of email, while emphasising that any modernisation must respect due process, international comity and the enforceability of judgments.¹²

The difference between the strict and the forgiving cases is instructive. Where the claimant has not obtained leave and the defendant objects promptly, the objection is likely to succeed. Where the defendant has a genuine agent in Kenya, or participates in the proceedings without protest, or the claimant moves quickly to regularise service, the court is more willing to look past the defect.

The defendant’s side of the same rule

For the foreign company, the lesson is the mirror image. A defendant that wishes to rely on defective service must say so at once and must avoid conduct that amounts to accepting the court’s jurisdiction. The Court of Appeal has held that a defendant who enters an unconditional appearance submits to the jurisdiction of the court.¹³ In both Misnak and Mwilu, the foreign defendants entered appearance conditionally or under protest and raised the jurisdictional point promptly. In the Worldcoin case, by contrast, the respondents participated fully and raised service only in their final submissions, and the objection failed.

A practical checklist for claimants

Before serving a foreign technology company, a claimant should identify the ground in Order 5 rule 21 on which leave will be sought and prepare affidavit evidence that addresses each requirement of Order 5 rule 25. The application for leave should be determined before any service is attempted, and the order should specify how service is to be effected. If email service is permitted, the affidavit of service must attach the delivery receipt. If the claimant intends to serve a Kenyan law firm or agent, it should first obtain written confirmation that the firm or agent has instructions to accept service, because correspondence alone will not suffice. Finally, if a defect is discovered, the claimant should move promptly to regularise service rather than waiting for the defendant to raise it.

In cross-border litigation, the first battle is often won or lost before the merits are ever argued. For claimants suing global platforms from Kenya, the rule is that you must obtain leave before you press send.

Benson Odiwuor is a Nairobi-based dispute resolution lawyer and researcher in internet jurisdiction, who handles dispute resolution in cross-border digital, data protection and online reputation matters. He is also the editor of The BOLD, a legal newsletter focusing on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

For inquiries, contact the author at  info@bensonodiwuor.com.