Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that serving court papers on an adult relative living with you counts as valid service, and default judgments will stand without a sworn defence.
What this practically means
#Executive summary
#Key legal issues
#Validity of substituted service on an adult family member under order 5 rule 12
Service on the appellant's son-in-law, an adult residing with him, was proper service under order 5 rule 12.
Rule 12 permits service, where the defendant cannot be found, on an agent empowered to accept service or on any adult member of the family residing with the defendant. The process server's return recorded that Jason Kipkembo Murbor introduced himself as the defendant's son-in-law, resided with him, and accepted service by signing. Multiple informants, including the defendant's wife, confirmed the relationship and co-residence, and that the defendant had in fact received the summons.
Burden of proof and the presumption of regularity of a process server's return
The party questioning a return of service bears the burden of showing it incorrect; the appellant's bare denials did not discharge that burden.
Relying on the presumption recognised in M B Automobile v Kampala Bus Service and the Indian commentators, the court held the process server's return and affidavit raised a presumption of service. The appellant's denial that Murbor was known to him or lived with him was contradicted by evidence including his own wife's confirmation of receipt, so the process server's affidavit was the much stronger evidence.
Effect of a process server's failure to detail inquiries after the defendant
Although the process server's affidavit was silent on his inability to find the defendant, that shortcoming was cured because the summons reached the defendant in time through his son-in-law.
A process server must make reasonable inquiries to serve the defendant personally, but process servers are not detectives and need only take reasonable steps. The purpose of service is that the summons reach the defendant in time to act. Here the appellant's wife told the process server the appellant had received the summons in November 1985, and that was not contradicted; the defects in stating inquiries were therefore cured.
Setting aside default judgment: affidavit of merits and appellate review of discretion
The judge's discretion was exercised correctly: the appellant asserted a good defence but filed no affidavit of merits showing a prima facie defence, so there was no ground to vary or discharge the default judgment.
Following Lord Atkin in Evans v Bartlam as applied in Mbogo v Shah and Patel v EA Cargo Handling Services, when judgment is obtained regularly a defendant must satisfy the court by affidavit that he has a prima facie defence. The appellant merely said he had a good defence without setting it out. An appellate court reviews the discretion by examining all the facts and circumstances and will interfere only where a wrong principle was applied.
Legal principles established
#- Where a defendant cannot be found, valid service may be effected on an adult member of the defendant's family residing with him, including a son-in-law living with the defendant.
- There is a qualified presumption in favour of the regularity of a process server's return of service, and the burden lies on the party challenging service to disprove it; mere denials do not discharge that burden.
- A service initially irregular (e.g. by failure to show reasonable inquiries after the defendant) is cured if the summons in fact reached the defendant in time to enable him to appear and defend.
- An appellate court will not interfere with a trial judge's exercise of discretion unless a wrong principle was applied; the court must review all the relevant facts and circumstances, whether or not they were all before the court below.
- Even where judgment is obtained regularly, if the defendant establishes a prima facie defence on affidavit of merits it would be unjust not to allow it to be heard; without such merits the default judgment should stand.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya, Kisumu
- Jurisdiction invoked
- First appellate jurisdiction over a dismissal by the High Court of a chamber summons to set aside a default judgment (appeal against that dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ruto v Bett (Environment and Land Case 392 of 2013) [2026] KEELC 5314 (KLR)[2026] KEELC 5314 (KLR)30 Jul 2026applied
- Kili v Maiyo & 4 others (Environment and Land Case E014 of 2023) [2025] KEELC 5516 (KLR)[2025] KEELC 5516 (KLR)23 Jul 2025
- Daniel Rukaria Iburi v Samson Murega Iburi & another[2025] KEELC 5180 (KLR)24 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR)", Case Analysis (1987). Civil Appeal (from High Court, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/69/eng@1987-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.