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ELCAllowedNot stated in the judgment (E.L.C. suit at Machakos)

Richard Mululu & another v Geoffrey Oraro Obura & 3 others; Paul Masila Kimeu, the Administrator, Syokimau Farm Ltd (Interested Party) [2021] KEELC 1631 (KLR)

Environment and Land Court
5 October 2021
ANA. Nyukuri
987 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Notice of Motion dated 2nd August 2021 by the Plaintiffs/Applicants, brought under Order 5 Rules 2(1) and (2) and 17 and Order 51 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The Applicants sought an order for substituted service of summons on the 1st and 2nd Defendants/Respondents by advertisement in a local daily with national circulation. The application was supported by an affidavit of Reginald Kimeu, Advocate, who deponed that the suit was filed on 19th February 2021, summons issued on 2nd March 2021, and that despite diligent efforts, including internet searches, the Defendants could not be traced. A process server, Jacob Malelu, swore an affidavit of service confirming he served the 3rd Defendant but could not trace the 1st and 2nd Defendants. The application was unopposed. The court framed a single issue: whether substituted service was warranted. Relying on Order 5 Rule 17 and authority including Mary Mbula Mukuvi v David Mwose Mwaluko T/A Aberdeen Properties Ltd and Simon Gichangi Mugo v Pierre Asabi Misambi, the court held that personal service had proven impossible and that the essence of substituted service is bringing the suit to the defendant's personal attention. The court allowed the application, ordered substituted service by newspaper advertisement on a weekday, gave the Defendants 30 days from service to enter appearance, and directed that costs be in the cause. The ruling was delivered virtually at Machakos on 5th October 2021 by A. Nyukuri, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether service of summons on the 1st and 2nd Defendants should be effected through substituted service

Key legal issues

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01

Whether substituted service of summons on the 1st and 2nd Defendants should be ordered

Holding

Yes. The Applicants demonstrated diligent but unsuccessful efforts to effect personal service, supported by an affidavit of non-service by the process server, justifying substituted service by advertisement.

Reasoning

Order 5 Rule 17 empowers the court to order substituted service where personal service cannot be effected for any reason. The Applicants filed the suit on 19th February 2021 and summons issued on 2nd March 2021. Both counsel and the process server deponed to unsuccessful tracing efforts, including use of technology and the internet. The process server's affidavit of non-service corroborated these efforts. The court is also enjoined by section 1B of the Civil Procedure Act to determine matters justly, efficiently, timely and affordably, supporting the order sought.

p. 2

Legal principles established

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  • Substituted service may be ordered where the court is satisfied that for any reason personal service cannot be effected on a defendant
  • Substituted service is as effectual as personal service and its essence is to bring the suit to the personal attention of the defendant

Court orders

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  1. 1.Applicants to serve summons upon the 1st and 2nd Defendants/Respondents through substituted service by advertisement in one of the daily newspapers with national circulation during a week day
  2. 2.1st and 2nd Defendants/Respondents required to enter appearance within 30 days of service of summons
  3. 3.Costs of the application to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

Jurisdiction invoked
Order 5 Rule 17, Order 5 Rules 2(1) and (2), Order 51 Rule 1 of the Civil Procedure Rules and section 3A and 1B of the Civil Procedure Act (Cap 21)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Applicants have demonstrated having applied diligent efforts to effect service on the 1 st and 2nd Defendants, which attempts were unsuccessful as is evident from the process server's affidavit of non-service.
p. 2diligent efforts prerequisite to substituted service
Order 5 Rule 17 authorizes this court to order service by way of substituted service, where it is satisfied that for any reason, personal service of summons cannot be effected on a defendant.
p. 2statutory basis for substituted service
The Applicants to serve summons upon the 1 st and 2nd Defendants/Respondents through substituted service by advertisement in one of the daily newspapers with national circulation during a week day.
p. 2final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Mululu & another v Geoffrey Oraro Obura & 3 others; Paul Masila Kimeu, the Administrator, Syokimau Farm Ltd (Interested Party) [2021] KEELC 1631 (KLR)", Case Analysis (2021). Not stated in the judgment (E.L.C. suit at Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1631/eng@2021-10-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.