Shaban & another v Kyalo & another (Civil Case E072 of 2026) [2026] SCC 99 (KLR) (1 April 2026) (Ruling) Neutral citation: [2026] SCC 99 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA CIVIL CASE E072 OF 2026 TN MWANGEKA, RM APRIL 1, 2026 BETWEEN ZAINAB ANYANGO SHABAN ........................................................ 1ST APPLICANT DAVID LIROY BOSIRE .................................................................... 2ND APPLICANT AND JOHN KYALO ................................................................................ 1ST RESPONDENT SIMON MWANGI NDUNGU ...................................................... 2ND RESPONDENT RULING 1. By Notice of Motion Application dated 23rd March 2026 the applicant seeks leave of court to efiect service upon the 1st Respondent by way of substituted service; by afixing the notices on a conspicuous place in the court house. 2. The application is supported by an afidavit by Zainab Anyango Shaban together with annexures sworn on 25th March 2026 the sum of which is that it has been impossible to efiect personal service upon the 1st Respondent as he is unknown to the deponent and that despite efiorts by the claimant’s/deponent’s advocates to locate the 1st Respondent or his physical address, the same have been fruitless. Further, that from the police abstract marked ZAS-2 the Respondent’s address and phone number are both unknown. The NTSA records also do not list the Respondents phone number. 3. In Ephraim Njugu Njeru v Justin Bedan Njoka Muturi & 2 others [2006] eKLR the Court of Appeal reasoned that ssubstituted service is normally ordered where the court is satisfied that there is reason to believe that the person to be served is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. Service in the ordinary way is generally personal service. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/99/eng@2026-04-01 1
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4. I have read the afidavit of non-service and find it insuficient as the efiorts referred to that is perusal of the police abstract and the NTSA records cannot be termed as diligent efiorts. NTSA records will show ownership details of the motor vehicle while the police abstract will show brief facts of an accident and the particulars of the motor vehicle involved. 5. Under rule 7(1) of the Small Claims Court Act Rules, the claimant must serve a copy of the Statement of Claim on each of the respondents named in the statement in the manner prescribed under rule 35. 6. Rule 35 thereof stipulates that service of any document under these Rules shall be made by either delivering a copy thereof personally to the party upon whom it is to be served and, where there are more than one party to be served, on each of them or an agent authorized to accept service, in which case service on the agent personally shall be suficient. 7. Further at Rule 35(4), where it is not practicable to efiect personal service of a document on a party in accordance with this rule, service may be efiected by mail addressed to the party's last known postal address, and a certificate of posting in that regard shall be attached to the Certificate of Service. 8. With the foregoing in mind, I have gone through the Notice of Motion, Supporting Afidavit and the annexures and find that the applicant has not satisfied the court as to the grant of leave to serve via substituted service through afixing a notice on a conspicuous place in the court premises. This is so as according to the police abstract marked ZAS-2 one John Kyalo is listed as a witness to the accident together with David Bosire and PC Shadrack. 9. Whether or not this is the same John Kyalo who is the Respondent herein I will not delve into save to say that it is the Claimant who named the Respondent as a party to this suit and thus bears the burden of ensuring they are informed of these proceedings. This burden is stipulated at section 24(b) of the Small Claims Court Act requiring that every statement of claim contain the name and address of each respondent. 10. Finally, Rule 35 of the Small Claims Court Act Rules does not provide for service by way of afixing notice on a conspicuous place in the court premises as such this application is dismissed with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……1ST…….DAY OF……… APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ………N/A… for Claimant; ………N/A… for Respondent C/A Sabina SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. THERESA N. MWANGEKA MOMBASA SMALL CLAIMS COURT SMALL CLAIMS COURT DATE: 2026-04-02 10:13:46 https://new.kenyalaw.org/akn/ke/judgment/scc/2026/99/eng@2026-04-01 2
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