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ELCAllowedNot stated in the extract (Notice of Motion dated 17th February 2025)

Noor v Mutai & 3 others (Land Case E002 of 2023) [2025] KEELC 4141 (KLR)

High Court of Kenya
26 May 2025
412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kapsabet allowed a plaintiff who couldn't find the defendant to serve court summons through a newspaper advertisement instead.

What this practically means

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Executive summary

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This was an ex parte notice of motion dated 17th February 2025 by the plaintiff, Abdul Aziz Noor, seeking leave to serve the 1st defendant by substituted service through advertisement of summons in a local circulating daily, with costs in the cause. The application was brought under Order 5 Rule 17 of the Civil Procedure Rules 2010 and sections 1A and 3A of the Civil Procedure Act, supported by the plaintiff's affidavit and eight grounds. The plaintiff deponed that he filed suit by plaint dated 13th July 2023, filed on 17th July 2023, but had been unable to effect service of summons and pleadings on the 1st defendant, whose identity and last known residence were unknown to him and whose efforts to trace him had proved futile. Counsel Mr Victor Kiprono urged the court to allow the application in terms of prayers 1 and 2. The court, per G M A Ongondo, J, framed one issue: whether the application was meritorious. Applying Ogada-vs-Mollin on the right of a party to be made aware of proceedings, and Ephraim Njugu Njeru on substituted service where personal service is impossible, the court found the affidavit demonstrated the impossibility of ordinary service, held the application 'cogent, firm and merited', and allowed it in terms of prayers 1 and 2, with costs in the cause. Delivered at Kapsabet on 26th May 2025.

Questions the Court framed

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

  1. 1.Whether the application for leave to serve the 1st defendant by substituted service is meritorious

Key legal issues

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01

Whether leave for substituted service should be granted

Holding

Application allowed; plaintiff granted leave to advertise summons in a local circulating daily

Reasoning

The court applied the principle that a defendant must be made aware of proceedings, and that substituted service is available where personal service is impossible. The supporting affidavit showed the plaintiff could not trace the 1st defendant, whose whereabouts and last residence were unknown, making ordinary service futile.

p. 2

Legal principles established

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  • A party to a case must be made aware of its existence to enable that party to respond or not
  • Where summons cannot be served in the ordinary way, personal service, a party may be served by substituted service

Court orders

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  1. 1.Leave granted to the plaintiff to serve the 1st defendant/Respondent through substituted service by advertising the Summons in one of the local circulating dailies
  2. 2.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.

majority

Wrote the judgment

Jurisdiction invoked
Order 5 Rule 17 of the Civil Procedure Rules 2010; sections 1A and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)

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.

A fortiori, the application dated 17th February 2025, be and is hereby allowed in terms of orders 1 and 2 sought therein
p. 2Disposition - substituted service granted
It is established law that a party to a case must be made aware of it’s existence to enable that party to either respond to it or not
p. 2Right to notice of proceedings

Issues in the judgment

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material

The 1st defendant/respondent is never named anywhere in the judgment

minor

Suit case number not stated in the judgment

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, "Noor v Mutai & 3 others (Land Case E002 of 2023) [2025] KEELC 4141 (KLR)", Case Analysis (2025). Not stated in the extract (Notice of Motion dated 17th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4141/eng@2025-05-26

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