Christopher Bwalya v Kumbele Mining Company Limited and Anor (2025/HK/245) (28 November 2025) – ZambiaLII

IN THE HIGH COURT OF ZAMBIA 2025/HK/245 AT THE DISTRICT REGISTRY HOLDEN AT KITWE (Civil Jurisdiction) BETWEEN: CHRISTOPHER BWALYA BWALYA AND KUMBELE MINING COMPANY LIMITED 15 T DEFENDANT MADISON GENERAL INSURANCE 2No DEFENDANT BEFORE THE HONOURABLE MADAM JUSTICE P. LAMBA IN CHAMBERS THIS 281 H DAY OF NOVEMBER, 2025. For the Plaintiff: Messrs Goma & Partners. For the 1st Defendant: Messrs James & Doris Legal Practitioners For the 2nd Defendant: Messrs Chali Chitala Advocates RULING Cases referred to: 1. Jahawah Sombhai Nayee v. Dobbin Mubanga Lufungulo (1980} ZR 47 SC 2. Chimanga Changa limited v. Stephen Chipango Ngombe (2010) vol. 1 ZR 3. Lukasu Properties limited v. African Banking Corporation Zambia Limited SCZ Appeal No. OS of 2023 Legislation referred to: 1. The Rules of the Supreme Court of England 1965, 1999 edition (White Book). 2. The High Court Amended Rules Statutory Instrument No. 58 of 2020. Other works referred to: J2 1. Patrick Matibini, SC MP FCIArb, Zambian Civil Procedure Commentary and Cases (Lexus Nexis, 2017, South Africa). 2. https://legalclarity.org/can-you-be-served-by-email-for-lega/ documents/ This ruling relates to the 2nd defendant's notice of motion to raise a preliminary issue on points of law as amended once without leave of Court. It was made pursuant to Order 33 rule 3, Order 33 rule 7, Order 14A rule 1 and 2 of the RS_C 1999 edition and filed into Court on 15th October 2025. The initial application was filed into Court on 2nd September, 2025 accompanied by skeleton arguments and affidavit in support deposed to by one Zebrone Banda, the Branch Manager Kitwe of the 2nd defendant. The 2nd defendant relies on the accompanying documents for the amended notice of motion. The 2nd defendant raised issue alleging that the plaintiff did not comply with Order 6 rule 1 (1) (d) of the High Court Amended Rules of 2020 in that the plaintiff did not serve the letter of demand on it via email as stated by it. The 2nd defendant also raised issue over the name of the 2nd defendant being incorrect. The plaintiff responded to the application by filing into Court an affidavit in opposition and skeleton arguments both dated 8th September, 2025. The affidavit is sworn by the plaintiff. The 2nd defendant replied to the plaintiff's process by way of an affidavit in reply sworn by the same Zebrone Banda an·d list of authorities and skeleton arguments both filed on 23rd September, 2025. I have read all the affidavits and skeleton arguments of the respective parties. I will not reproduce them for brevity of the ruling except where necessary considering that they are clearly on the Court record. J3 My view is that the matter turns on how the issue of tenability of service of the demand letter by way of email is determined; whether this form of service is valid and whether it is effectual in the absence of acknowledgment of receipt of the email as argued by the defence. The 2nd defendant in its skeleton arguments in reply contends that service by way of email is not a mode of service recognised under the Rules of Court. Order 10 rule 2 {1) was cited as such a rule of Court. It also contends that the plaintiff has failed to demonstrate acknowledgement of receipt, which is argued to be ·a mandatory requirement in the instance where service is not personal. It was argued, that where service is not personal or through substituted service, acknowledgment of such service by the recipient is mandatory. The case of Jahawah Sombhai Nayee v. Dobbin Mubanga Lufungulo {1980} ZR 47 SC was cited as supporting this position. In view of the foregoing, it was stated that in the absence of personal service or substituted service or non personal service accompanied by an acknowledgment of such service, the plaintiff's attempts of service is void ab initio. That proper service of a demand letter is a jurisdictional precondition on which a Court's ability to proceed is predicted. Order 10 rule 2 (1) cited above provides as follows: "2. (1) All writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, in respect of which personal service is not requisite, shall be sufficiently served if left at the address for service of the person to be served, as defined by Orders VII and XI, with any person resident at or belonging to such place, or if posted in a prepaid registered envelope addressed to the person to be served at the postal address for service as aforesaid: J4 Provided that, where service under this rule is made by registered post, the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof. 11 I must state that my efforts at searching for authorities dealing with service of process by way of email in our jurisdiction did not yield much, if at all, so that I resorted to the authorities that we have already generally dealing with service of process. The learned author, Patrick Matibini, S.C. in his work, Zambian Civil Procedure Commentary and Cases vol.l stated that, at page 245: "Service of process is essential because it not only lends legitimacy to the litigation process, but also manifests a fundamental principle of natural justice: audi alteram partem- no one can be condemned unheard. Thus, in practice, service entails that the party initiating the litigation, must bring the legal process to the attention of the opposing party, so that the opposing party becomes aware of the stops being taken against him and the steps whi~h need to be taken in response." In the case of Jahawah Sombhai Nayee referred to above, the Supreme Court held that: "It is sufficient to serve a document by ordinary post, as is the common practice among lawyers in Zambia, provided there is an acknowledgment ofs uch service from the recipient." It can be deduced from this that service of any process requires proof of the same even though courts are given lee way to infer such proof from the particular circumstances of the cases before them. Mr Matibini, S.C., ibid, referred to the case of Chimanga Changa Limited v. Stephen Chipango Ngombe (2010} vol. 1 ZR 208 in which the Supreme Court stated at page 217 that: "There is no sacrosanct method to prove service of process. While an affidavit of service would lay the issue ofs ervice to rest, service can be proved through endorsement on a Jett~r JS or other circumstances. A Court is at liberty to infer from the circumstances in a case whether a litigant is aware of the hearing date. 11 It is clear that, notwithstanding the said lee way, there is still need for certainty of the efficacy of this process. The authors under their site https://legalc/arity.org/can-you-be-served-by-email-for-legal-documents/ link which was published on 24th January 2025 stated as follows concerning service of process generally and also particularly by email: "Establishing valid proof of service is essential to ensure all parties are duly informed and proceedings move forward legitimately. When serving documents via email, maintainln_g verifiable records is critical. Unlike traditional methods, email service requires retaining copies of sent emails, delivery receipts and any acknowledgments from the recipient. These records must demonstrate that the email was sent and received, sometimes evidenced through read receipts or replies. Courts often require supplementary corroboration to validate email service. Affidavits from IT professionals may attest to the reliability of the email system used, including server logs confirming transmission and reception. Screenshots or digital timestamps, accompanied by sworn statements verifying their authenticity, are also commonly accepted. This documentation ensures transparency and accountability in bridging digital communication with legal formalities. [Underlining mine for emphasis] Earlier in the same link it is stated that: "Judicial discretion determines the appropriateness of email service. Judges evaluate factors such as the reliability of the email address, the likelihood of the recipient receiving the document and the nature oft he case. 11 It is also stated that: "Courts may permit email service when traditional methods are impractical, as long as it does not violate due process rights. 11 J6 It is quite obvious from the foregoing that for service of legal documents via email to meet the condition of proper service presently in our jurisdiction, it must be clearly shown that the email was not only sent but also that it was received by the recipient. It is paramount that a Court is satisfied on this. Coming to the facts of this matter, to start with, it is common cause that the affidavit of service of demand letters by the plaintiff of 24th July 2025 does not exhibit any email showing service of the demand letter on the 2nd defendant. In his affidavit in opposition, the plaintiff has exhibited a document which he argues, shows that the 2nd defendant was served with a demand letter through its email. "CBB1" therein refers, dated 21st July, 2025. The said affidavit also exhibits another document showing the 2nd defendant's contact details said to be from its website which include the email address which is indicated thereo.n as being part of the 2nd defendant's contact information and to which the letter of demand appears to have been sent. According to the plaintiff, this email confirms service of the demand letter as an attachment to the email exhibited as "CBB1". In light of the facts of this case, I find that there isn't satisfactory evidence to prove that the 2nd defendant was served with the demand letter. Even if it was accepted that the email addressed indicated on what the plaintiffs say is the website for the 2nd defendant, the email being relied on does not meet the threshold of the requirement to prove this. The plaintiff has failed to demonstrate that the demand letter was properly served on the 2nd defendant. I will not belabour the consequences of such failure suffice to say that with the guidance given in the case of Lukasu Properties Limited v. African Banki~g Corporation Zambia Limited SCZ Appeal No. 05 of 2023, the Writ of summons J7 is incompetently before Court and is set aside accordingly. I make no order as to costs. leave to appeal is granted.