Email Delivery and Contractual Notices: Lessons from Court Practice on Proof of Service
Introduction
In April 2025, the High Court of Kenya delivered a decision in BOD County Referral Hospital Kitale & another v DN (Suing through her next friend & Grandmother SK) (Civil Appeal E043 of 2023) [2025] KEHC 5344 (KLR) (30 April 2025) that deserves close attention—particularly for those involved in drafting or interpreting contractual notice provisions.
Although the case arose in the context of service of court summons, not commercial contracts, the Court’s analysis offers a clear and technically precise distinction that sharpens how we think about email delivery in contract frameworks.
The Court’s Position: “Sent” Is Not the Same as “Delivered”
The issue before the Court was whether a party had been validly served with a hearing notice via email. The applicable rule—Order 5 Rule 22B(4) of the Civil Procedure Rules—requires that service via email be evidenced by a delivery receipt, not merely a copy of the email sent.
The Court clarified:
“An email delivery receipt is a notification confirming that an email message was delivered to the recipient’s mailbox… different from an email read receipt, which confirms that the email was opened and/or read by the recipient.”
In other words, proof of dispatch alone was insufficient. The affidavit of service failed to demonstrate that the email was actually delivered to the recipient’s mailbox — no delivery receipt was annexed. As a result, and in the absence of confirmation of receipt of the email by the other party, the Court held that without an email delivery receipt on record, there was no evidence of service.
To receive a delivery receipt when sending an email, the sender must activate the appropriate settings in their email application. In Microsoft Outlook, this can be done by:
- Opening a new email
- Clicking on “Options”
- Checking the box for “Request a Delivery Receipt” under “Tracking”
- Once this setting is enabled, a notification will be automatically received confirming that the message has been delivered to the recipient’s mailbox (though not necessarily read).
This distinction relating to delivering an email—well established in technical terms—is not always adequately reflected in how contracts are drafted.
Implications for Commercial Contract Drafting
While the Civil Procedure Rules apply specifically to the service of legal pleadings, not contractual notices, the judgment prompts a relevant drafting question: What counts as delivery under your contract, and how will you prove it?
Many commercial agreements now rely on email as a formal method of giving notice. The preferred approach is to build in a “deemed received” provision, which creates a contractual presumption of receipt once certain criteria are met—irrespective of whether the notice is read or acknowledged.
Strengthening Your Notice Clauses
When drafted properly, notice clauses reduce uncertainty and pre-empt disputes about when a notice “took effect.” A well-considered notice clause does three important things:
- Recognises the limits of tracking actual receipt.
- Defines what kind of failure (e.g., bounce-back) undermines the presumption.
- Shields the sender from silence or non-responsiveness by the recipient.
To ensure clarity and avoid unnecessary risk:
- Specify designated email addresses for notice within the contract.
- Define a clear deemed receipt rule based on delivery, not acknowledgment.
- Carve out service of legal proceedings, which must comply with the relevant procedural rules under the governing law.
- Include a fallback method where delivery fails or confirmation is not received.
In today’s environment, where legal rights and commercial leverage often depend on timing, these small distinctions can have outsized consequences.
Final Thought
Contract risk often stems from the clauses that were missing when it mattered most; the provisions that could have closed ambiguity or insulated a party from procedural gaps. Well-crafted notice provisions should be more than operational conveniences; they are structural safeguards, critical to the enforceability and reliability of a commercial agreement.
