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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether service of the summons to enter appearance on the appellant's son-in-law, residing with him, was valid service under order 5 rule 12 of the Civil Procedure Rules
- 2.Whether a process server's failure to demonstrate inability to find the defendant personally rendered service irregular and whether any such irregularity was cured
- 3.Whether the learned judge's refusal to set aside the ex parte default judgment should be interfered with, having regard to the appellant's alleged good defence on the merits
- 4.Whether the judge erred in relying on the affidavits rather than matters said in chambers (ground 3, abandoned/left aside)
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment: service on the appellant's adult son-in-law residing with him was valid under order 5 rule 12; any shortcoming in the process server's statement of inquiries was cured because the summons reached the defendant in time; and no affidavit of merits showing a prima facie defence was offered, so the judge's discretion to refuse to set aside the default judgment was correctly exercised.
In the result, the service was effected and so any short comings in stating what inquiries were made, were cured. The service was proper.p. 4
Agreed that a son-in-law living with the appellant answers the description of an adult member of the family, that the appellant had no answer on the merits, and that the judge's discretion was correctly exercised.
It seems to me that the appellant had no answer to the respondent’s case on the merits. Had he one, he would not have sought to set the judgment aside, on what strikes me as a bare technicality.p. 5
Agreed that there was overwhelming evidence of valid service and that the appellant failed to show any basis for interfering with the High Court decision.
Notwithstanding strenuous argument to the contrary, there was overwhelming evidence in support of valid service.All in all, the appellant failed wholly to show that the decision of the High Court should be interfered with.p. 5
- 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)
Relief refused
#Setting aside the default judgment of April 8, 1986 for Kshs 210,000 entered under order IXA rule 10
Service was proper, any defect in stating the inquiries made was cured because the summons reached the defendant in time, and the appellant failed to show a prima facie defence by affidavit of merits
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the service was effected and so any short comings in stating what inquiries were made, were cured. The service was proper.
Unless there is a statutory definition of a member of family, common sense suggests to me that a son-inlaw who lives with the appellant and who is not shown to be an infant, answers the description of “an adult member of the family”.
If there are merits in the defence, it would be unjust not to allow them to be heard, even if judgment had been obtained regularly. On the other hand if there are no merits, judgment should stand.
In the light of these principles it is the duty of this court to review all the circumstances whether or not they were all taken before the High Court.
As Apaloo JA also agrees, the appeal is dismissed with costs as Platt JA proposes.
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 & another24 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.