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ELCAllowedNot stated in the judgment

Atieno v Change (Environment and Land Case E002 of 2025) [2025] KEELC 7965 (KLR)

Environment and Land Court
14 November 2025
1,284 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner claiming adverse possession to notify an untraceable defendant through newspaper adverts and notices posted on the disputed land.

What this practically means

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Executive summary

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This was a Notice of Motion dated 22nd October 2025 brought by the applicant, the plaintiff in an Originating Summons seeking a declaration of adverse possession over parcel Kanyada/K/Katuma B/46 in Homa Bay County, of which the respondent is the registered owner. The applicant sought leave to serve the summons and pleadings on the respondent by substituted service, namely advertisement in a newspaper of national circulation, together with costs in the cause. The application was supported by the applicant's affidavit and an affidavit of service sworn by process server Bruno Ogada Imbo, who deponed that attempts to effect personal service on 18th September 2025 failed: the Chief of Arujo location and the Assistant Chief of Arujo sub-location each stated they did not know the respondent or his whereabouts, and searches on LinkedIn, X and Facebook failed to identify the respondent's profile. Justice Fred Nyagaka framed the sole question as whether the application was merited. He set out the hierarchy of service under Order 5 of the Civil Procedure Rules - personal service, service on an agent, service on an adult family member, and lastly substituted service under Rule 17. Satisfied that the applicant had made genuine attempts and complied with Order 5 Rules 7, 8, 12, 13, 14, 15 and 17, the court allowed the application subject to conditions: advertisement of the summons within 21 days in the Daily Nation or Standard at an eighth of a page (not in the business section); affixing A3 copies of the summons on the defendant's gate and the four corners of the suit land and the court notice board within 7 days; and mention on 15th December 2025 to confirm compliance.

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 is merited or not

Key legal issues

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01

Whether the applicant had exhausted the modes of personal service so as to qualify for substituted service under Order 5 Rule 17

Holding

The application was merited; the applicant had made genuine attempts to serve and complied with Order 5 Rules 7, 8, 12, 13, 14, 15 and 17, so leave for substituted service was granted subject to conditions

Reasoning

The court set out the hierarchy of service steps under Order 5: personal service (Rule 7), service on an authorized agent (Rule 8), service on an adult family member (Rule 12), and finally substituted service (Rule 17). The process server's affidavit showed failed attempts through the Chief and Assistant Chief and social media searches. The court was satisfied these were genuine attempts and allowed the application with specific conditions on the mode and place of advertisement.

p. 3

Legal principles established

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  • Where personal service fails despite diligent attempts, a plaintiff may apply for substituted service under Order 5 Rule 17, which may be by advertisement or such other manner as the court thinks fit

Court orders

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  1. 1.The Applicant shall advertise the summons to enter appearance and the pleadings within twenty-one (21) days in either the Daily Nation or the Standard Newspaper, at least an eighth (1/8th) of a page, not in the business section
  2. 2.The Plaintiff shall affix copies of the summons to enter appearance, A3 size, on the outside of the Defendant's gate and conspicuous places at the four corners of the suit parcel, and other copies on the court notice board, within seven (7) days
  3. 3.Mention on 15th December 2025 to confirm compliance

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

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 Court formed the opinion that the Applicant had made genuine several attempts to serve the process. Thus, he complied with Order 5 Rules 7, 8, 12, 13, 14, 15 and 17 of the Civil Procedure Rules.
p. 3Compliance with Order 5 service rules
First, the Applicant shall advertise the summons to enter appearance and the pleading herein within the next twenty-one (21) days in either the Daily Nation or the Standard Newspaper of at least an eighth (1/8th) of a page in size
p. 3Final orders - mode of substituted service

Issues in the judgment

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minor

Multiple typographical errors in the judgment (e.g. 'efiorts', 'dificult', 'responded' for respondent; plaintiff and defendant names appear inconsistently as 'John Michael Chang' and 'Junichiro')

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, "Atieno v Change (Environment and Land Case E002 of 2025) [2025] KEELC 7965 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7965/eng@2025-11-14

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