https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1266

Safaricom Plc v Ali (Civil Appeal E002 of 2024) [2026] KECA 1266 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1266 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E002 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 3, 2026 Between Safaricom Plc Appellant and Mohamed Mwinyi Ali Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th May 2023inHCC Appeal No. E032 of 2022 Civil Appeal E32 of 2022 ) Judgment 1.The instant appeal arose from the judgment and decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th May 2023 in Mombasa HCC Appeal No. E032 of 2022. The genesis of the appeal to the High Court and the subsequent appeal to this Court is the respondent’s suit against the appellant in Mombasa SRM Civil Case No. 916 of 2019 in which the respondent (Mohamed Mwinyi Ali) sued the appellant (Safaricom PLC), therein described as “Safaricom Limited”, vide a plaint dated 3rd May 2019. 2.The respondent’s case was that, on or about 11th December 2018, he was travelling as a pillion passenger on a motorcycle along Airport Road in Changamwe area of Mombasa when the appellant’s servant or agent drove a motor vehicle owned by the appellant negligently, recklessly and/or dangerously that it collided with the said motorcycle as a result of which he sustained injuries. The particulars of the alleged negligence and injuries were set out in his plaint. Accordingly, the respondent contended that the appellant was liable for general damages and special damages in the sum of Kshs. 7,000, which he particularised in the plaint. He also prayed for costs of the suit and interest. 3.The appellant having failed to enter appearance and file a defence, interlocutory judgment was entered against it on 13th February 2002, whereupon the matter proceeded to formal proof, culminating in the judgment dated 22nd March 2021 in which the respondent was awarded Kshs. 1,667,250, following which he commenced execution proceedings leading to attachment of the appellant’s properties located at Rex House Mombasa vide the Proclamation of Attachment dated 20th May 2021. 4.Jolted by the attachment, the appellant filed an application dated 20th May 2021 and supported by the affidavit of Daniel Ndaba, its Senior Manager – Litigation, sworn on even date, seeking orders: that execution of the judgment entered on 22nd March 2021 and the resultant decree issued on 30th March 2021 be stayed pending hearing and determination of the application; that the court do set aside the said judgment and decree; that the respondent’s suit be declared as having abated on the grounds that the summons to enter appearance issued on 20th June 2019 were not served within one year from the date of issue; that, in the alternative, the appellant be granted unconditional leave to defend the suit; and that the costs of the application and of the unlawful proclamation be borne by the respondent. 5.The appellant’s case was that it had never been served with any court process prior to entry of judgment and the resultant decree;that, upon the proclamation aforesaid, it instructed its counsel to peruse the court file; and that, from perusal, it was clear that the Affidavit of Service sworn by one Peter Ogweno on 22nd January 2020 was fictitious and fraudulent because the stamp affixed on the summons on the alleged service in June 2019 referred to Safaricom Limited, yet the appellant had changed its name to Safaricom PLC with effect from 1st January 2018. According to the deponent, the process server deponed that he proceeded to the appellant’s headquarters without disclosing to which of the two buildings housing the headquarters he visited to effect service. 6.Daniel Ndaba further deponed that the process server stated that he served a “legal secretary” without disclosing how he knew that the person he allegedly served was a legal secretary; that the appellant does not have any legal secretary within its ranks; that the process server gave the impression that this “legal secretary” was readily available, yet access to the legal department was highly restricted; and that all court process was usually received elsewhere before being internally transmitted to the legal department. 7.The appellant further contended that, even after entry of the interlocutory judgment on 1st February 2021, the court directed the respondent to serve the appellant with a notice for the mention fixed for 11th February 2021, but no notice was served in that regard; that all the proceedings and resulting judgment were a nullity for violating the rules of natural justice enshrined in Article 50(1) of the Constitution; that, having failed to effect service of summons to enter appearance, the summons became invalid after 12 months of its issuance; that there was therefore no suit for the appellant to respond to; that, even if there was proper service and the suit still existed, the appellant had a reasonable defence to the claim; that, in the circumstances, it was necessary for the appellant to have its day in court before being condemned to pay the damages awarded; and that it was in the interests of justice and fairness that the reliefs sought be granted. 8.In response, the respondent filed his replying affidavit sworn on 27th May 2021 deponing that Daniel Ndaba had no authority to make or swear the supporting affidavit on behalf of the appellant, and that it should be expunged from the proceedings; that the appellant was duly served with the summons and plaint which their legal secretary received, signed and stamped with their official stamp; that the appellant had not changed its name in the vehicle’s logbook; that the process server introduced himself and the purpose of his visit, and that the legal secretary, a man as disclosed in the affidavit of service, must also have introduced himself; that, after interlocutory judgment was entered and the court gave a hearing date of 11th February 2021, the respondent served a hearing notice to the appellant on 16th February 2021; that the appellant had not filed a draft statement of defence to demonstrate that they had a defence that raised triable issues; that the appellant had chosen not to defend the suit since service in 2019, and only reacted when auctioneers served the proclamation; and that the application did not meet the threshold for setting aside the judgment. Accordingly, the respondent urged the court to dismiss the application with costs. 9.Subsequently, the appellant filed an affidavit sworn by its learned counsel, Kongere Billy of M/s/ Muriu, Mungai & Company, on 9th August 2021. Mr. Kongere deponed that the firm had been retained by HFC Limited to act in Mombasa ELC Case No. 126 of 2021; that, while acting in the said case, counsel came across an Affidavit of Service sworn by Peter O. Omogi on 9th July 2021; that it was visibly evident, even to the naked untrained eye, that the signature on the Affidavit of Service sworn on 9th July 2021 was markedly distinct from the signature appearing on the Affidavit of Service filed in the present case and sworn on 22nd January 2020 apparently by the same Peter O. Omogi; that, given the obvious disparities in the signatures, there was a great possibility that Peter O. Omogi was not the one who swore the Affidavit of Service filed in the present case; that it must have been a case of forgery which the court should keenly look into; and that the appellant’s counsel brought the foregoing facts to the respondent’s advocates vide a letter dated 30th July 2021, but that there had been no response thereto. 10.Pending determination of the appellant’s application, the respondent filed an application dated 9th August 2021 supported by an affidavit sworn by the respondent on even date, seeking to set aside the judgment and decree; and leave to amend its plaint within 14 days. The grounds on which the application was made were that the respondent sued Safaricom Limited while the company had changed its name to Safaricom PLC; that, upon learning of the change of the appellant’s name through the appellant’s application dated 20th May 2021, the respondent wished to amend its plaint to substitute the name Safaricom Limited for Safaricom PLC; and that, in the interest of justice, the judgment and decree ought to be set aside and the plaint amended in terms of the draft amended plaint annexed to the application. 11.The court issued summons to the process server to attend court on 10th August 2021 as well as on 10th November 2021 for cross- examination on the Affidavit of Service filed by the respondent. However, the process server did not appear on any of the two dates, and no reasons were given for his non-attendance. The two applications were eventually canvassed by way of written submissions. 12.In a ruling delivered on 16th February 2022, the Resident Magistrate’s Court (Hon. C. N. Ndegwa, SPM), having considered the rival applications by the parties, took the view that both sought the setting aside of the judgment and, on that basis, set it aside. The court observed that, upon the filing of the amended plaint, the same be served upon the defendant (the appellant herein), who would thereupon enjoy the automatic right to defend the suit. Accordingly, leave was granted to the plaintiff (the respondent herein) to amend, file, and serve the amended plaint within fourteen days, with a corresponding direction that the defendant files its defence within seven days of service. The court further ordered that each party bear their own costs. 13.Aggrieved by the learned Magistrate’s decision, the appellant preferred an appeal to the High Court against the said ruling on the grounds that the learned Magistrate erred in failing to consider whether summons to enter appearance had been served, and the effect of failure to serve summons after 12 months; and in allowing an amendment not sought bona fide, and in the absence of a suit. 14.In its judgment dated 4th May 2023, the High Court (Olga Sewe, J.), upon considering the appeal, first addressed the question whether the suit had abated for want of service of summons. The learned Judge found, as a matter of fact, that the summons had been duly served upon the appellant on 12th November 2019, approximately five months after their issuance. The court rejected the appellant’s contention that service had not been effected, holding that the challenge mounted, premised on the authenticity of the stamp affixed to the summons and the signature on the affidavit of service, rested on mere surmise rather than cogent proof, and was therefore insufficient to displace the presumption of proper service. In the result, the court concluded that there existed no basis upon which the suit could be said to have abated. 15.Turning to the complaint regarding the amendment of the plaint, the learned Judge observed that the respondent’s application was confined to correcting the appellant’s name upon being apprised, by the appellant itself, of its change of name from Safaricom Limited to Safaricom PLC. In those circumstances, the court held that the trial magistrate had properly exercised judicial discretion in allowing the amendment. Finding no merit in the appeal as a whole, the High Court dismissed it with costs. 16.Still dissatisfied, the appellant moved to this Court on the instant appeal from the High Court’s judgment vide a Memorandum of Appeal dated 28th December 2023 on the grounds that the learned Judge erred in law: in failing to find that the suit had abated for lack of service of summons to enter appearance within one (1) year from the date of issue of the summons; and in shifting the burden of proving non-service of the summons to the Appellant. Accordingly, the appellant prays that the appeal be allowed with costs; and that the impugned judgment be set aside and substituted for an order allowing the appellant’s appeal in the High Court. In addition, the appellant prays that its Motion dated 20th May 2021 be allowed; that the respondent’s Motion dated 9th August 2021 be dismissed; and that it be awarded costs of the proceedings in the two courts below. 17.In support of the appeal, learned counsel for the appellant, M/s. Muriu, Mungai & Company, filed written submissions and a list of authorities dated 2nd January 2025 while, in rebuttal, learned counsel for the respondent, M/s. J.K. Mwarandu & Co. filed written submissions dated 14th January 2025, all of which we have considered. 18.In our considered view, only one issue commends itself for our determination, namely whether the learned Judge was at fault in failing to find that the respondent’s suit in the subordinate court had abated for lack of service of summons to enter appearance within twelve (12) months from the date of issue. 19.In the impugned judgment, the learned Judge made the following findings upon consideration of the record of the lower court. According to the learned Judge, the court below issued Summons to Enter Appearance on 20th June 2019, which were thereafter served upon the appellant on 12th November 2019, a period of approximately five months following issuance. Critically, nothing on the face of the record indicated that the Summons had not been collected within thirty days of issuance for purposes of service. In those circumstances, the learned Judge found no basis upon which to fault the respondent, and consequently held that Order 5 rule 1(6) of the Civil Procedure Rules to be inapplicable to the facts as presented. 20.On the question of proof of service, the learned Judge relied upon the Affidavit of Service sworn by one Peter Ogweno as establishing that the Summons were duly served on 12th November 2019. It followed, therefore, that the contention advanced by Mr. Kongere that the suit had abated was wholly without foundation, having been premised upon the assumption that no service whatsoever had been effected as at 20th May 2021 when the appellant filed its application to set aside the judgment. 21.Having subjected the appellant's arguments in support of non- service to due consideration, the learned Judge found them insufficient to sustain that position. The suggestion that the appellant, having undergone a change of name, could not have affixed its stamp on the Summons in the name of Safaricom Limited, and the invitation extended to the court to impugn the authenticity of the signature appearing on the Affidavit, were found to amount to no more than conjecture. They fell far short of established fact and could not, therefore, form the foundation of any definitive conclusion that service of the Summons had never been effected. Accordingly, the learned Judge found no basis for holding that the suit had abated. 22.Taking issue with the findings of the learned Judge, counsel for the appellant advanced the following submissions in support of the appeal. On the fact and validity of service, counsel submitted that the appellant had stated on oath that it was never served with the summons, whether as alleged or at all. It was further contended that at the time service was purportedly effected in June 2019, the appellant had already transitioned its corporate stamps to read "Safaricom PLC," rendering it an impossibility for the Summons to have been stamped in the name of Safaricom Limited. Counsel further challenged the identity of the alleged recipient, submitting that no officer bearing the designation of “legal secretary” existed within the appellant's establishment, and that the appellant's legal department was not situated at the reception, making it inconceivable that any such officer could have been served thereat. 23.With regard to the sufficiency of the Affidavit of Service, counsel urged the court that a process server is under a legal duty to disclose, in the affidavit of service, the means by which he identified the person upon whom service was effected. In the instant case, the process server had failed entirely to explain how he came to identify the person purportedly served as the “legal secretary.” That omission, it was submitted, rendered the affidavit of service fatally deficient. In support of this proposition, counsel placed reliance on the decisions in Daniel Namayi Ambunya v Juma Iddi Hamisi [2015] KEHC 278 (KLR); and Said Abdala Azubedi v Samuel Mbugua Ikumbu [2018] KEELC 4390 (KLR), both of which affirmed the principle that a failure by a process server to disclose the basis upon which he identified the person served renders the service invalid. 24.On the authenticity of the Affidavit of Service, counsel drew the court's attention to a further matter impugning the integrity of the affidavit of service. It was submitted that the process server had previously sworn an affidavit in Mombasa ELC No. 126 of 2021, and that a comparison of the signature on that affidavit with the signature on the affidavit of service in the present matter revealed a visible and material discrepancy — one apparent even to the untrained eye. This, counsel contended, seriously undermined the authenticity of the affidavit of service and warranted the rejection of its contents. 25.Regarding the process server's failure to attend court, counsel submitted that the conduct of the process server further reinforced the case against the validity of service. Witness summons had been served upon him requiring his attendance for cross-examination on 10th August 2021 and again on 7th November 2021. On both occasions, he failed to appear and offered no apology or explanation for his absence. Counsel contended that a process server with nothing to hide would have been eager to clear the air; and that his conspicuous and unexplained failure to do so spoke volumes. The inference to be drawn, it was submitted, was that the respondent was fully aware that no service had in fact been effected, and that the process server was unwilling to compound the position by subjecting himself to cross-examination. In this regard, counsel relied on the decision in Reuben Nzuve Mwangangi v Mukene Musau & Ndele Mutuku [2019] KEELC 3169 (KLR), where the court drew an adverse inference from a process server's refusal to avail himself for cross- examination, holding such refusal to be among the clearest indications that a false affidavit of service had been filed. Counsel also cited Serraco Limited v Attorney General [2014] KEHC 4284 (KLR) for the broader proposition that, where a party has custody or control of evidence but fails or refuses to produce it, the court is entitled to draw an adverse inference that the evidence, if produced, would have been unfavourable to that party. 26.With regard to the standard of proof and the weight of evidence, counsel submitted that the learned Judge had erred in characterising the appellant's averments as mere surmises. On the contrary, it was urged, those averments constituted proven facts, supported by evidence on oath and uncontroverted by any credible counter- evidence. Counsel invoked the decision in Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR) for the proposition that, in civil proceedings, proof on a balance of probabilities requires no more than that the evidence tips the scales in favour of one party, however narrowly. Where, as in the instant case, there existed credible grounds to doubt the authenticity of the process server's signature, and where the process server had plainly refused to submit to cross-examination despite being summoned by the court, counsel contended that it could not properly be held that the presumption in favour of valid service remained intact. 27.On abatement of the summons, and flowing from the foregoing, counsel submitted that service of the summons had not been effected within twelve months of their issuance. In those circumstances, and consistent with the applicable provisions of the Civil Procedure Rules, the suit had abated by operation of law, and that the learned Judge ought to have so held. They urged us to allow the appeal. 28.In answer to the appeal, learned counsel for the respondent urged the court to uphold the findings of the learned Judge and advanced the following submissions in that regard. On the fact and validity of service, counsel submitted that Summons to Enter Appearance were duly issued by the lower court on 20th June 2019, and were thereafter served upon the appellant on 12th November 2019, approximately five months from the date of issuance. In proof of service, an affidavit of service was filed in court accompanied by a copy of the Summons bearing the signature of the recipient and the appellant's own stamp. Counsel contended that the Summons were valid and that the suit had not abated. 29.With regard to the appellant's change of name and corporate stamps, counsel squarely addressed the appellant's contention that, having changed its name, it could not have affixed the stamp appearing on the Summons. In rebuttal, counsel drew the court's attention to motor vehicle records obtained from the National Transport and Safety Authority, which had been exhibited in the respondent's replying affidavit. Those records disclosed that as at 22nd January 2019, the accident vehicle remained registered in the name of Safaricom Limited and had not been transferred to Safaricom PLC. This, counsel submitted, was compelling evidence that the appellant had continued to conduct its affairs, including the registration of its vehicles, under the name Safaricom Limited, and had not in fact transitioned its stamps to reflect the new name. Counsel further observed that the appellant had not produced any sample of a stamp bearing the name Safaricom PLC to substantiate its claim, and that a mere change of corporate name did not, without more, establish a corresponding change of stamps. 30.Addressing themselves to the appellant's allegations generally, counsel submitted that the various allegations advanced by the appellant in challenge of the service fell short of the threshold of proven facts. They amounted, at best, to unsubstantiated surmises, unsupported by any credible evidence capable of displacing the affidavit of service duly filed before the court. 31.On the exercise of judicial discretion, counsel submitted in conclusion that the learned Judge had correctly and properly exercised her discretion in upholding the ruling of the trial court; that the respondent had discharged the burden of demonstrating that service of the Summons had been duly effected upon the appellant; and that the learned Judge had been entirely justified in so finding. Accordingly, there was no basis, it was urged, for this Court to interfere with that exercise of discretion. Counsel asked us to dismiss the appeal. 32.We take to mind the provisions of Order 5 rule 2(1) of the Civil Procedure Rules, which provides for the duration of validity of summons in the following words:2.Duration and renewal of summons [Order 5, rule 2](1)A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons. 33.In addition to the foregoing, Order 5 rule 15(1) of the Civil Procedure Rules stipulates the contents of an affidavit of service, following service of summons, thus:15.Affidavit of service [Order 5, rule 15](1)The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require. 34.The respondent filed an Affidavit of Service sworn by one Peter Ogweno, a process server, as proof that it had indeed served the appellant with summons to enter appearance. In the Affidavit of Service, the process server deponed as follows:3.That on 12th November 2019, I proceeded to the headquarters of SAFARICOM LIMITED in Nairobi. Upon arrival I met [the] legal Secretary. I introduced myself and purpose of the visit. I served him with copies [of the] Summons and Plaint. He accepted service by signing and stamping on the principal copy.4.That I hereby return copies of the said documents duly served.” 35.On the face of the record, the Affidavit of Service fell short of the mandatory requirements of Order 5 rule 15. In particular, the deponent failed to identify, with any degree of specificity, the officer of the appellant alleged to have been served with the summons. Nor did the affidavit disclose the basis upon which the recipient was described as a “legal secretary” or otherwise shown to be a person duly authorised to receive service on behalf of the appellant. 36.The appellant, for its part, squarely controverted the alleged service and impugned the veracity of the affidavit. It was contended that the stamp affixed on the summons had long been discontinued; that no position designated as “legal secretary” existed within its establishment; that, in any event, summons were not ordinarily received through its legal department at the first instance; and that the signature attributed to the process server differed materially from that appearing in another affidavit sworn by the same process server in separate proceedings. In light of these matters, the appellant invoked the provisions of Order 5 rule 16 of the Civil Procedure Rules and sought the attendance of the process server for purposes of cross-examination, but all in vain. 37.We take to mind the provision of Order 5 rule 16, which reads:16.Examination of serving officer [Order 5, rule 16]On any allegation that a summons has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. 38.In Karatina Garments Ltd v David Nyanarua [1976] KECA 11 (KLR), this Court held that, where one party to proceedings denies having been served with a relevant document, it is proper for the court to look into the matter; and, if the court is faced with conflicting affidavits as to the alleged service process, it is proper that the deponents should be examined on oath in order to establish the truth. 39.Likewise, in Shadrack Arap Baiywo v Bodi Bach [1987] KECA 69 (KLR), Platt, JA. held that:“There is a qualified presumption in favour of the process server recognized in M B Automobile v Kampala Bus Service, [1966] EA 480 at page 484 as having been the view taken by the Indian Courts in construing similar legislation. On Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670, the learned commentators say:3.Presumption as to service – There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.’” 40.Despite having been served with summons to appear in court on two different occasions for cross-examination, the process server failed to attend court, in obedience to the summons, without apology or sufficient reasons for non-attendance. His unexplained absence and disregard of the summons significantly dented the credibility of the Affidavit of Service attributed to him. 41.As persuasively observed by Gikonyo, J. in Fidelity Commercial Bank Ltd v Linear Coach Co. Ltd & 2 others [2015] KEHC 8202 (KLR) -“How can the process server, who is an officer of the court, file an Affidavit of Service and also a Replying Affidavit to defend a service of summons he carried out but fail or avoid to appear when called upon by the court to be cross-examined on the service of summons in question? With tremendous respect, he should know that a process server is an officer of the court, serves process of the court and is accountable to the court on such service. His accountability to the court is through the return he makes under the Civil Procedure Rules and therefore, he must be faithful and be prepared, almost in a conditioned reflex manner, to respond to any call made by the court on any service he has carried out.” 42.The process server having failed to appear on two different occasions for cross-examination on the fundamental issue of service of the summons, the trial court ought to have made an inference that facts adverse to the averments made in the Affidavit of Service could have been established through the cross-examination. 43.In Kimotho v Kenya Commercial Bank [2003] 1 EA 108, Mbaluto, J. observed that:“In Cross and Tapper on Evidence (8 ed) at 40 the Learned Authors refer to a decision of O’Donnell v Reichard Supreme Court [1975] VR 916 at 929 where it is stated:Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favorable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless, it is open to the jury to infer that that person’s evidence would not have helped the party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again with respect to matters to which the person not called as a witness could have spoken’.” 44.Having considered the submissions of counsel and the record as a whole, we are firmly of the considered view that the cumulative weight of the evidence, and the inferences properly drawn therefrom, admits of only one conclusion: that the affidavit of service was beset with fundamental deficiencies. It failed to identify, with any particularity, the person upon whom the Summons were purportedly served, the designation which that person held, or the precise place at which service was effected. Those omissions were not technical irregularities of a curable character; they went to the root of whether service had been validly effected at all. The appellant, for its part, raised cogent and sworn averments casting serious doubt upon the authenticity of the signature on the affidavit, the alleged manner in which service was conducted, and the stamp affixed upon the Summons. Those averments stood uncontroverted on the record. 45.Most significantly, the process server, the one person possessed of direct and firsthand knowledge of the circumstances of the alleged service, was summoned to court to submit to cross-examination on two separate occasions. On each occasion, he was conspicuously absent and proffered no explanation for his failure to attend court. 46.The law is well settled that where a party who has it within his power to produce evidence that would resolve a contested issue deliberately withholds that evidence, the court is entitled to draw the adverse inference that the evidence, if produced, would have told against him: see Kimotho v Kenya Commercial Bank [(supra). The process server's studied evasion of cross-examination is, in our judgment, one of the most telling features of this case. As was observed in Reuben Nzuve Mwangangi v Mukene Musau & Ndele Mutuku [2019] KEELC 3169 (KLR), a process server's refusal to avail himself for cross-examination is among the clearest indications that the affidavit of service he swore was false. We have no hesitation in drawing that adverse inference in the circumstances of this case. 47.Taken individually, each of these matters would have warranted anxious scrutiny. Taken together, they converge upon an inescapable conclusion. The standard applicable in civil proceedings is proof on a balance of probabilities, a standard which, as this court affirmed in Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions (supra), requires no more than that the evidence preponderate in favour of the party bearing the burden, however narrowly. Measured against that standard, the appellant has more than discharged the burden of demonstrating that the Summons were not validly served within a year of their issuance. The respondent's evidence, anchored as it was on a deficient and unauthenticated affidavit of service, could not withstand scrutiny and falls manifestly short of proof. 48.It is a foundational principle of our civil procedure that valid service of summons is the act by which the court acquires jurisdiction over the defendant, and by which the defendant is given the opportunity to be heard, a right which lies at the very heart of natural justice. Where, as here, that act is not demonstrated to have been properly performed, the court cannot proceed as though it were. 49.The suit having failed to achieve valid service of summons within twelve months of their issuance, it abated by operation of law under Order 5 Rule 1(6) of the Civil Procedure Rules, and the learned Judge ought to have so held. As the court pronounced in Shah v Mbogo and another [1967] 1 EA 116, discretion in matters of this nature must be exercised judicially and in a manner that safeguards the integrity of the process; to hold otherwise on the facts of this case would be to place a seal of approval upon a process that the evidence would not sustain. 50.Having carefully considered the record of appeal, the grounds on which it is anchored, the impugned judgment, the rival submissions of learned counsel, the cited authorities and the law, we find that the appeal succeeds and is hereby allowed. Consequently:a.the Judgment and Decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 4th May 2023 is hereby set aside;b.the respondent’s suit in Mombasa SRM Civil Case No. 916 of 2019 is hereby declared to have abated; andc.the respondent shall bear the costs of this appeal.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 3RD DAY OF JULY, 2026.A. K. MURGORJUDGE OF APPEAL...................................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL...................................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is a true copy of the originalsignedDEPUTY REGISTRAR