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ELCPartially AllowedELCLC E026 of 2025

Kebenei & another v Sawe & another (Environment and Land Case E026 of 2025) [2026] KEELC 4494 (KLR)

Environment and Land Court
16 July 2026
GOG M A Ongondo
399 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kapsabet court allowed a land dispute plaintiff to serve court papers on a missing defendant by newspaper advertisement after direct service failed.

What this practically means

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Executive summary

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This was a chamber summons application dated 17th May 2026 in Kapsabet Environment and Land Court Case E026 of 2025, in which the plaintiffs/applicants sought an order for substituted service of summons on the 1st Defendant by advertisement in any of the daily newspapers, together with costs. The application was supported by a six-paragraph affidavit of Lantz K Serem, learned counsel for the applicants, on the grounds that all attempts to effect service had failed and that the 1st Defendant's whereabouts were unknown despite reasonable and diligent efforts. Mr. Victor Kiprono, learned counsel for the applicants, urged the court to allow the application by its nature and for the ends of justice. The court, per Hon. G M A Ongondo, Judge, held that the orders sought are provided for under Order 5 Rule 17 of the Civil Procedure Rules 2010, and that sections 3 and 3A of the Civil Procedure Act as read with section 3 of the Environment and Land Court Act mandate the court to grant them. Applying the decision in Ephraim Njugu Njeru vs Justin Bedan Muturi (2006) eKLR, that personal service is the ordinary way, the court was satisfied that service could not be effected through the ordinary way. The court allowed the application in terms of order number 1, directing substituted service by newspaper advertisement, and made no orders as to costs. The ruling was delivered at Kapsabet on 16th July 2026.

Questions the Court framed

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

  1. 1.Whether the applicants' application for substituted service of summons on the 1st Defendant by advertisement in daily newspapers is merited

Key legal issues

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01

Entitlement to substituted service under Order 5 Rule 17

Holding

The application for substituted service was allowed where all attempts to trace and serve the 1st Defendant had failed

Reasoning

The court noted the orders sought are provided under Order 5 Rule 17 of the Civil Procedure Rules 2010 and that sections 3 and 3A of the Civil Procedure Act with section 3 of the Environment and Land Court Act mandate the court to grant them. Relying on the Ephraim Njugu Njeru decision that personal service is the ordinary way, the judge was satisfied service could not be effected in the ordinary way, rendering substituted service by newspaper advertisement just, fair and equitable.

p. 3

Legal principles established

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  • Personal service is the ordinary mode of service, but substituted service is available where service cannot be effected in the ordinary way

Court orders

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  1. 1.Application dated 17th May 2026 allowed in terms of order number 1 - substituted service of summons on the 1st Defendant by advertisement in any of the daily newspapers
  2. 2.No orders as to costs

The bench

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

GO
majority

Wrote the judgment

Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (Cap 21) read with Order 5 Rule 17 of the Civil Procedure Rules 2010 and section 3 of the Environment and Land Court Act

Relief refused

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Costs of the application

The court declined to award costs, granting only the substituted service order

p. 3

Costs

No orders as to costs.

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.

It is borne in mind that orders sought in the application are provided for under Order 5 Rule 17 of the Civil Procedure Rules 2010.
p. 2statutory basis for substituted service
Accordingly, the application dated 14 th May 2026 is merited. The same is hereby allowed in terms of order number 1 for substituted service upon the defendants as stated in paragraph 1 (a) hereinabove with no orders as to costs.
p. 3final orders - substituted service granted, no costs

Issues in the judgment

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minor

The application is described as dated 17th May 2026 at paragraph 1, but the court's disposition refers to an application dated 14th May 2026

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, "Kebenei & another v Sawe & another (Environment and Land Case E026 of 2025) [2026] KEELC 4494 (KLR)", Case Analysis (2026). ELCLC E026 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4494/eng@2026-07-16

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