Common Mistakes That Invalidate Service of Process in Kenya
Service of process is one of the most litigated procedural issues in Kenyan courts. Even strong cases can collapse or suffer costly delays because of defective service.
Courts are clear: proper service is a constitutional and procedural right, and any shortcut or error can render proceedings irregular.
This article explains the most common mistakes that invalidate service of process in Kenya, why courts reject defective service, and how litigants and advocates can avoid these pitfalls.
Why Courts Take Service of Process Seriously
Kenyan courts view service of process as:
- A safeguard of the right to be heard
- A foundation of procedural fairness
- A prerequisite to issuing binding orders
Where service is questionable, courts often prefer to err on the side of protecting the absent party.
1️⃣ Serving the Wrong Person
One of the most frequent errors is serving documents on:
- Relatives
- Domestic workers
- Security guards
- Colleagues without authority
Unless substituted service has been authorised, personal service is often mandatory.
Courts routinely invalidate service where:
- The recipient was not properly identified
- There is no explanation why personal service was not effected
2️⃣ Failure to Properly Identify the Recipient
Courts expect process servers to:
- Clearly identify the person being served
- Explain how identification was confirmed
Mistakes occur where affidavits:
- Assume identity without verification
- Fail to explain recognition
- Contain vague statements like “a man who identified himself as…”
Such affidavits invite objections and cross-examination.
3️⃣ Vague or Incomplete Affidavits of Service
An affidavit of service must be specific and detailed.
Common defects include:
- Missing dates or times
- Unclear locations
- Failure to list documents served
- Copy-pasted or templated wording
Courts have little tolerance for affidavits that lack factual precision.
4️⃣ Serving Outside Permitted Hours or Days
Some documents must be served:
- Within specific timelines
- During lawful hours
Service effected:
- Late at night
- On restricted days
- Outside court-approved periods
may be challenged, particularly where urgency or interim orders are involved.
5️⃣ Improper Service on Corporations and Companies
Serving a company is not the same as serving an individual.
Mistakes include:
- Serving junior employees
- Leaving documents at reception without authority
- Failing to serve a director, company secretary, or authorised officer
Courts may invalidate service where corporate service does not comply with statutory requirements.
6️⃣ Failure to Follow Court Directions on Service
Where a court gives specific directions—such as:
- Personal service
- Service through advocates
- Substituted service
Ignoring or deviating from those directions renders service irregular.
Courts rarely excuse non-compliance with explicit orders.
7️⃣ Mishandling Refusal of Service
When a recipient refuses service, the process server must:
- Clearly identify the person
- Inform them of the nature of the documents
- Document the refusal accurately
Mistakes occur where:
- The refusal is not narrated
- Documents are abandoned without explanation
- The affidavit lacks detail
This weakens the credibility of service.
8️⃣ Assuming Avoidance Equals Service
Avoidance does not automatically amount to service.
Courts expect affidavits to show:
- Genuine attempts at service
- Dates and times of attempts
- Observations supporting avoidance
Without this, courts may decline applications for substituted service.
9️⃣ Using Unlicensed or Inexperienced Process Servers
Courts are increasingly sceptical of affidavits sworn by:
- Unlicensed individuals
- Persons with no understanding of court rules
Such affidavits are easily challenged and may undermine otherwise valid service.
10️⃣ Late Filing or Non-Filing of Affidavits of Service
Even where service was properly effected, failure to:
- File the affidavit on time
- Place it on the court record
can lead to adjournments or adverse orders.
Service is not complete until proof is properly filed.
Consequences of Defective Service
Invalid service can result in:
- Setting aside of interim orders
- Adjournments and delays
- Increased legal costs
- Loss of strategic advantage
In extreme cases, applications may be dismissed entirely.
How to Avoid Invalid Service of Process
To minimise risk:
- Use experienced, court-aware process servers
- Ensure affidavits are detailed and accurate
- Follow court directions strictly
- Avoid shortcuts, even under pressure
Professional service protects both the case and the client.
Need Reliable Process Service in Kenya?
If you require court-compliant service of process supported by credible affidavits, professional handling is essential.
👉 Learn more about our Process Service in Kenya, including affidavits of service and service for foreign and local clients.
Ultimate Forensic Consultants Ltd
Private & Corporate Investigations | Forensic & Legal Support Services
Common Mistakes That Invalidate Service of Process in Kenya Read More »
Uncategorized