Safaricom Plc has won a significant legal reprieve after the Court of Appeal overturned a High Court decision that had upheld a personal injury claim against the telecommunications giant, ruling that the company was never properly served with court summons before a default judgement was entered against it.
In a judgement that could reshape how Kenyan courts handle disputes over service of legal documents, a three-judge bench sitting in Mombasa found glaring deficiencies in the process that led to Safaricom being condemned without participating in the proceedings.
The court stressed that the right to be heard cannot be sacrificed on the altar of procedural shortcuts.
The dispute traces its roots to a December 2018 road accident along Airport Road in Changamwe, Mombasa. Mohamed Mwinyi Ali, who was travelling as a pillion passenger on a motorcycle, sued Safaricom after alleging that one of the company’s vehicles negligently collided with the motorcycle, leaving him injured.
He sought compensation for his injuries and related losses.
High Court
When Safaricom failed to enter appearance, the Magistrate’s Court entered an interlocutory judgement before later awarding Ali KSh1.67 million in damages.
The company only became aware of the suit after auctioneers descended on its Mombasa offices to execute the decree.
That discovery triggered a legal battle spanning three courts.
Safaricom insisted it had never received the summons.
It questioned the authenticity of the affidavit of service, arguing that the documents were allegedly received by a mysterious “legal secretary”, a position the company said did not exist.
It also pointed to another inconsistency: although the company had changed its name from Safaricom Limited to Safaricom Plc in 2018, the summons bore the old corporate name.
The High Court dismissed those arguments, finding that service had been proved and allowing the respondent to amend the pleadings to reflect Safaricom’s new corporate name.
Court of Appeal
But the Court of Appeal took a markedly different view.
The judges found that the affidavit of service failed one of the most basic legal tests: it did not identify the individual allegedly served, explain how the process server established that person’s identity or authority, or demonstrate that the recipient was authorised to accept court documents on Safaricom’s behalf.
The bench found an even more troubling development.
Despite being summoned by the trial court on two occasions, the process server failed to appear for cross-examination to defend his affidavit.
That unexplained absence, the judges held, severely weakened the credibility of the claimed service.
Citing long-established precedent, the court observed that where service is disputed, cross-examination of the process server is often the surest way to establish the truth.
The appellate judges ultimately concluded that proper service had not been proved, meaning the proceedings that followed could not stand.
The ruling overturns the High Court’s decision and hands Safaricom a decisive appellate victory.
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