Civil Procedure Law: Service of Process In Kenya

Service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.

Notice is furnished by delivering a set of court documents (called "process") to the person to be served.

Service
Typically, asummons and other related documents must be served upon the defendant personally, or in some cases upon another person of suitable age and discretion at the person's residence or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims court procedures. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.

Proper service of process initially establishespersonal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. The defendant may contest the default in his or her home state. Service of process must be distinguished from service of subsequent documents (such as pleadingsand motion papers) between the parties to litigation.

Manner of service
Substituted service

When an individual party to be served is unavailable for personal service, many jurisdictions allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person ofsuitable age and discretion, such as a cohabiting adult or a teenager.

Substituted service often requires a serving party show that ordinary service is impracticable, that due diligence has been made to attempt to make personal service by delivery, and that substituted service will reach the party and effect notice.

Another method of substituted service is "service by publication" also called "constructive service"
Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, or unknown (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard).^[4] Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address. Service by publication usually involves placing the petition for divorce and the summons to a missing spouse in a local newspaper.

In divorce cases, most states that permit service by publication will require "due diligence" to locate the missing spouse to include: verifying with the post office that there is no forwarding address; contacting in writing all friends, relatives, and former employers of a spouse who may know his or her current address; checking all jails and prisons for any record of a spouse; and checking military records for a spouse

Personal service by process server

Personal service is service of process directly to the (or a) party named on the summons,complaint, or petition. In most lawsuits in the Kenya, personal service is required to prove service.
If the individual refuses to accept service, flees, closes the door, etc., and the individual has been positively identified as the person to be served, the documents may be "drop served" (placed as close to the individual as possible); this is considered a valid service.

Return of service in Kenya

Once service of process has been effected, the responsible officer or process server must typically file a return of service or proof of service or "affidavit of service" with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and place at which service was effected, the person served, and any additional information needed to establish that service was properly made. It is signed by the process server, and operates as prima facie evidence that service of process was effectively made.