Karisa & 40 others v Husein (Environment and Land Case E009 of 2026) [2026] KEELC 4588 (KLR)
The bottom line
#A Mombasa court allowed 41 land claimants to serve an untraceable landowner by newspaper, postings and electronic means, but only after strengthening their evidence of attempts to find him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on the material presented, the Plaintiffs have laid a sufficient evidential foundation under Order 5 Rule 17 of the Civil Procedure Rules, 2010 for the exercise of the Court's discretion to authorise substituted service upon the Defendant.
- 2.If so, what mode or combination of modes of substituted service is proportionate, effective and consonant with the Defendant's rights under Article 40 and Article 50(1) of the Constitution, given the gravity of an adverse-possession suit.
- 3.What ancillary directions ought to attend the order, and as to costs.
Key legal issues
#Evidential foundation for substituted service under Order 5 Rule 17
The Plaintiffs' material was substantial but insufficient — eleven attempts by a licensed process server were accepted, but the affidavit lacked particulars, no recent official search was exhibited, and no electronic contacts were explored.
The Court accepted that the Defendant was difficult to trace, placing the Plaintiffs on the right side of Shadrack Arap Baiywo. But the affidavit of non-service gave totals without dates, addresses or enquiries; section 34 of the Land Registration Act provides a statutory point of contact never tried; and in the era of Order 5 Rule 22B it strains credulity that no plaintiff holds any phone number for the registered proprietor.
Proportionate mode of substituted service in a title-divesting suit
Newspaper publication alone rests on a low rebuttable presumption; the Court directed a layered mode of publication, pinning on the land and at the local administration, electronic service and registered post.
Because an adverse-possession decree strikes a registered proprietor's name from the register and divests Article 40-protected title, the proprietor must have a fair and honest chance to be heard under Articles 47 and 50(1). Layering modes of service redresses the weakness of each and protects the eventual decree from later attack.
Status of the interim injunction pending substituted service
The interim injunction granted on 18th June 2026 continues in force and the inter partes hearing was refixed, since the hearing could not fairly proceed before service.
To let the injunction lapse for want of a hearing made impossible by circumstances beyond the Plaintiffs' control would punish them for the Defendant's absence. Equity would not tolerate it; the injunction preserves the res.
Legal principles established
#- An affidavit grounding substituted service must descend to particulars sufficient to satisfy the Court that personal service is genuinely impracticable, not merely inconvenient; the rule is a rule of evidence before it is a rule of procedure.
- In adverse-possession suits, where a decree divests a registered proprietor of constitutional title, courts should order layered modes of substituted service rather than newspaper publication alone.
- An official search supporting substituted service must be current, and service on a stale address is service upon nothing.
Court orders
#- 1.Notice of Motion dated 2nd July 2026 allowed on conditional terms.
- 2.Plaintiffs to file and serve within 30 days a Supplementary Affidavit exhibiting a current official search (not older than 3 months) of Land Parcel No. 345/I/MN, CR No. 1767 disclosing the Defendant's registered address for service; any known electronic contacts for the Defendant and account of electronic attempts; and a further and better affidavit of non-service setting out with particularity the dates, addresses and persons encountered on each of the eleven attempts.
- 3.Upon compliance, leave granted to effect substituted service by layered modes: once-only publication in the Daily Nation or the Standard; pinning of pleadings and Ruling on the suit land and at the office of the Assistant Chief, Bamburi Sub-Location, with certificate and photographs; electronic service on disclosed contacts with affidavits of transmission; and service by prepaid registered post on the registered address.
- 4.Service deemed effected 15 days after the last of the steps is taken and evidenced by affidavit.
- 5.Defendant to have 15 days from deemed service to enter appearance and file responses.
- 6.Interim injunction granted on 18th June 2026 to continue in force pending the inter partes hearing on 28th October 2026.
- 7.Mention on 28th October 2026 for confirmation of compliance and fixing of hearing date.
- 8.If Plaintiffs fail to comply within the timelines without extension, the leave for substituted service lapses of its own force.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 5 Rule 17(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21
Relief refused
#Immediate unconditional leave to effect substituted service by newspaper publication
The affidavit of non-service lacked particulars; no current official search was exhibited; no electronic contacts were disclosed. Leave granted only conditionally upon curing these deficiencies.
Costs
Costs of this Application shall be in the cause.
Quotable passages
#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 Notice of Motion dated 2nd July 2026 is allowed on the conditional terms that follow.
Upon compliance with order (b) above to the satisfaction of the Court, the Plaintiffs are hereby granted leave to effect substituted service of the Originating Summons dated 20th January 2026
Service upon the Defendant shall be deemed to have been effected fifteen (15) days after the last of the steps directed in order (c) above has been taken and duly evidenced by affidavit filed in Court.
In the event that the Plaintiffs shall fail to comply with orders (b) and (c) within the timelines directed, and shall not have sought and obtained an extension for good cause shown, the leave to effect substituted service granted herein shall lapse of its own force
Costs of this Application shall be in the cause.
procedural generosity to the Plaintiff must not become procedural cruelty to the Defendant.
The rule is a rule of evidence before it is a rule of procedure.
Issues in the judgment
#The ruling is dated 16th July 2026 and the process server's affidavit of non-service is said to record eleven attempts 'over a period of some four months' for an Originating Summons dated 20th January 2026, yet the process server deposes he received the summons on 20th February 2026 — internally consistent, but the Motion of 17th June 2026 and ruling timeline leave the precise chronology of attempts compressed; minor dating anomalies (e.g. affidavit of service 'dated in July 2026') appear in the record.
The court cites Berkey v. Third Avenue Railway Co. as if quoting Cardozo directly in its own reasoning, but the citation is introduced as counsel-style authority; the attribution of treatment is ambiguous since no party submissions appear in the extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karisa & 40 others v Husein (Environment and Land Case E009 of 2026) [2026] KEELC 4588 (KLR)", Case Analysis (2026). ELC Originating Summons dated 20th January 2026 (Plot No. 345/I/MN, CR No. 1767). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4588/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.