Shaban & another v Kyalo & another (Civil Case E072 of 2026) [2026] SCC 99 (KLR)
The bottom line
#A Mombasa court refused to let a claimant serve papers by pinning a notice on the courthouse, saying her search for the defendant was not diligent enough.
What this practically means
#Executive summary
#Key legal issues
#Whether diligent efforts to trace the respondent were demonstrated
Perusal of the police abstract and NTSA records does not amount to diligent efforts to locate a respondent
The court found the affidavit of non-service insufficient because the efforts relied on - perusal of the police abstract and NTSA records - could not establish diligence. NTSA records show ownership details of a motor vehicle while a police abstract shows brief accident facts, so neither could reveal the respondent's whereabouts or address.
Whether the Small Claims Court Act Rules permit service by affixing a notice on the court premises
They do not; rule 35 provides only for personal service or, where impracticable, service by mail to the party's last known postal address
The court traced the service regime under rule 7(1) and rule 35 of the Small Claims Court Act Rules, noting that rule 35 requires personal delivery, or where impracticable, service by mail with a certificate of posting. Affixing a notice on a conspicuous place in the court premises is not a recognised mode of service under the Rules.
Whether a witness named in the police abstract could substitute for proper service efforts
The claimant, having named the respondent, bears the burden of ensuring the respondent is informed of proceedings
The court noted that the police abstract listed one John Kyalo as a witness to the accident, together with David Bosire and PC Shadrack. Without delving into whether this was the same John Kyalo, the court held that the claimant who named the respondent as a party bears the burden of ensuring the respondent is informed of the proceedings, per section 24(b) of the Small Claims Court Act.
Legal principles established
#- Substituted service is ordered where the court is satisfied that the person to be served is avoiding service or that for any other reason the summons cannot be served in the ordinary way
- A claimant bears the burden of ensuring a respondent named in the suit is informed of the proceedings, and every statement of claim must contain the name and address of each respondent
Court orders
#- 1.The application for leave to serve via substituted service through affixing a notice on a conspicuous place in the court premises is dismissed with no orders as to costs
- Jurisdiction invoked
- Small Claims Court Act and the Small Claims Court Act Rules (rules 7(1) and 35); section 24(b) of the Small Claims Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaban & another v Kyalo & another (Civil Case E072 of 2026) [2026] SCC 99 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 23rd March 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/99/eng@2026-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.