Family matters are indeed matters of the heart. Whenever parties disagree and decide to use the court process to settle their differences, a gruelling battle ensues, coupled up with a lot of challenges.
One of the challenges the parties face at the initial stage is the service or the handing over of the court papers to the other parties in the suit. People will make sure they evade service by all means.
They change their places of residence, leave the country among other things, in order to avoid being served with court documents. One such hypothetical situation that illustrates some of the foregoing is where a parent is suing another for access and custody of the children.
The parent who has custody, lives in a boat in the Indian ocean. At times, he docks the boat and at times he is out at sea. Since the institution of the suit, he has chosen to go and live at sea.
Accessing him for service has become a nightmare. There is also the danger of him moving out of the jurisdiction of the court which will defeat the jurisdiction of the Children's Court of Kenya.
On the issue of service of court papers, the rules of serving court documents will come to play. The rules of service are to be found in the civil procedure rules order five thereof.
In the case of divorce cases,the service is regulated by the Matrimonial Causes Rules. Service should be effected by a licensed court process server. A party can also use a licensed courier service or by post.
Before one uses any of the latter means, one has to seek leave/ permission from the court. The rules provide that, service should be done on the defendant in person, unless the defendant has an authorised agent who can receive the documents on their behalf.
Where a party has appointed an advocate to act for them, service can also be effected through the advocate on record.
The civil procedure rules provide that where reasonable number of attempts have been made to serve a party and the party cannot be found, service may be effected on an agent of the defendant who has been empowered to accept service or on any adult member of the family of the defendant who is residing with him.
The person who has been served, or the agent, is required to endorse an acknowledgement sign to the documents.
Where a party to be served cannot be found, or any other person whom service can be made, the rules provide that the serving officer shall affix the documents/summons on the outer door or some other conspicuous part of the house which the defendant ordinarily resides or carries on business and shall return with the copy.
The serving officer is required, after service, to swear an affidavit of service indicating the manner in which he served the papers and how the party was identified. Service should be effected within the stipulated time and in the stipulated manner.
If a party cannot be accessed for service, then a party can apply for substituted service. This is provided for in Rule 17 of Order Five of the civil procedure rules. The substituted or the alternative delivery of court documents or service can be by affixing a copy of the document in the court house, or some conspicuous place where the defendant is known to have last resided or worked for gain. Substituted service can also take the form of putting up an advertisement in the local newspapers.
On the issue of the risk of the parent moving out of the jurisdiction of the court, the best way forward would be to get an injunction, restraining him from moving the children out of the jurisdiction of the court.
This can be attained by making a formal application to the court, asking the court to issue orders directing the party not to leave the countries boundaries, until the matter is heard and determined. If the party has to travel, then they should inform and seek the permission of the court before doing so.
The applying party can further request the court to order that the flight risk party deposit their passports and travel documents with the court as a guarantee.
This will prevent the party from exiting the jurisdiction of the court, where the court does not have authority. If the party does not obey the court orders, the party can be arrested for contempt.