Elephant Oils Mills v Stephen Njenga Njoroge & 5 others [2021] KEELC 4107 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that defendants can serve untraceable parties through newspaper ads, just as the plaintiff had done before.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to substituted service under Order 5 Rule 17 of the Civil Procedure Rules
Leave for substituted service may be granted where the court is satisfied that summons cannot be served in the ordinary way; the applicants proved through affidavits of non-service that the process server could not trace the 1st defendant, and justice favoured granting the same remedy the plaintiff had enjoyed
Order 5 Rule 17(1) permits the court to grant leave for substituted service where service under Order 5 cannot be effected for any reason, with sub-rule 4 covering advertisement. The applicants filed an affidavit of non-service showing the process server could not locate the 1st defendant. The plaintiff itself had obtained a similar order on 13th October 2015 and advertised in the Daily Nation on 12th April 2016, and did not dispute benefiting from that process.
Right to amend a defence after service of an amended plaint
Order 8 Rule 2 gives a defendant the right to amend a defence after being served with an amended plaint; the plaintiff's amendment of 2nd October 2019 triggered the 3rd and 4th defendants' right to file their amended defence and counterclaim
The court found it undisputed that the plaintiff filed an amended plaint on 2nd October 2019. That amendment triggered Order 8, entitling the 3rd and 4th defendants to file their amended defence and counterclaim, which they did. This answered the plaintiff's objection that the amended defence and counterclaim was filed irregularly and without leave.
Reissue of summons to accompany a counterclaim
Although the rules are silent on summons accompanying a counterclaim, the power to issue summons extends to reissuing, but the applicants failed to justify reissuance on a balance of probabilities since the counterclaim was against the plaintiff and not the 1st defendant
Order 5 Rule 1 governs issuance of summons to enter appearance, and Order 5 Rule 3 requires every summons to be accompanied by a plaint; the rules say nothing about a counterclaim. The court accepted the power to reissue extends its discretion, but found the counterclaim in the amended defence was directed at the plaintiff and not the 1st defendant, so reissuance was not justified on the evidence.
Legal principles established
#- A plaintiff who has benefited from substituted service cannot fairly deny the same remedy to defendants seeking to serve a party who cannot be traced
- A defendant who has not entered appearance and against whom interlocutory judgment has been entered still has a right to be served with amended pleadings
- Although the Civil Procedure Rules are silent on summons accompanying a counterclaim, the power to issue summons extends to reissuing, and the court may exercise its discretion accordingly
Court orders
#- 1.The applicants (3rd and 4th defendants) are granted leave to serve upon the 1st defendant the amended defence and counterclaim dated 24th January 2020 by way of substituted service by advertising in one local daily newspaper with national wide circulation
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Original jurisdiction under the Civil Procedure Rules (Orders 5 and 8); no constitutional or statutory jurisdictional provision expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elephant Oils Mills v Stephen Njenga Njoroge & 5 others [2021] KEELC 4107 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4107/eng@2021-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.