By Dickson Jere
Since 2020, before one sues in the High Court, you must first serve a “Letter of Demand” on the person to be sued. When filing your case, you must prove that you indeed served the “Letter of Demand” and the person did not heed to your demand.
In this case, lawyers attempted to serve the letter on the Defendant – a Member of Parliament -but was elusive. Even attempt to physically serve the documents at his parliamentary office proved futile as they refused to accept the documents. Left without any options, the letter was served via WhatsApp to the MP after verifying his number.
But when the case was filed in Court, the MP claimed the letter was never served on him and therefore the case should be thrown out. But the Plaintiff argued that the documents were indeed served via WhatsApp after his office refused to accept them.
An affidavit of service was filed explaining why they opted for WhatsApp service and showed “blue ticks” as received.
The High Court heard the case and observed that the was no law on how the “Letter of Demand” should be served because that comes before even one goes to Court. It is pre-litigation procedure that is not covered under service of Court process.
“WhatsApp can be used as an informal or supplementary means to notify a Defendant,” the Court said.
“However, WhatsApp alone is unsafe if you intend to rely on the letter of demand in Court because if the Defendant later denies receipt, the entire action risks being declared irregular or a nullity,” the Judge added.
The Court observed that the Electronic Communications and Transaction Act of 2021 recognizes electronic communications and electronic records generally but does not override the rules of Court on service.
“So it is advisable to serve the letter of demand physically and obtain a written acknowledgment of service or file an affidavit of service proving delivery of the same, or failure to deliver as was the case in casu,” the Court guided.
“The Plaintiff took steps to personally or physically serve the letter of demand on the Defendant who made himself unavailable,” the Court said, adding that the MP was aware of the letter but was elusive to receive it.
The Court has since condemned the Defendant in costs to be taxed if he cannot agree on the amounts with the lawyers.
Case citation – Mvunga v Sampa – 2025/HP/0188
Lecture Notes;
1. This case underscores the need to amend our Court Rules to matchup with the current trends in electronic communications. Service via Postal Office is acceptable but not through texts and WhatsApp even though recently another Judge accepted email service as perfect for letter of demand.
2. This case also explains that service of letter of demand is not governed by any law or rule as it is done before litigation starts. So you cannot apply to Court for substituted service of letter when matter is not even before Court.