[2014] KEHC 47 (KLR)
The court found that the plaintiff had demonstrated an inability to locate the 2nd defendant, as there was no information on his address or whereabouts. Given the absence of any means to effect personal service, and in light of the provisions of Order V Rule 9(1) and Rule 17 of the Civil Procedure Rules, the court...
Source-derived case information.
- Citation
- [2014] KEHC 47 (KLR)
- Parties
- Applicant: Aaron Kiplangat Kamoing; Respondent: Major Wilson Koitaba; Respondent: Joel Kibet Koech
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 167 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Substituted Service, Service of Process, Amended Originating Summons, Land Title Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aaron Kiplangat Kamoing
Applicant
Major Wilson Koitaba
Respondent
Joel Kibet Koech
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the plaintiff should be granted leave to serve the 2nd defendant by substituted service through newspaper advertisement.
- 2 Whether sufficient attempts at personal service have been made or are practicable given the circumstances.
Ratio Decidendi
The court found that the plaintiff had demonstrated an inability to locate the 2nd defendant, as there was no information on his address or whereabouts. Given the absence of any means to effect personal service, and in light of the provisions of Order V Rule 9(1) and Rule 17 of the Civil Procedure Rules, the court held that it would be futile to require further attempts at personal service. The court was satisfied that the circumstances justified granting leave for substituted service by advertisement in a local daily newspaper. The application was therefore merited and allowed.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to effect service on the 2nd defendant by way of advertisement once in either The Daily Nation Newspaper or The Standard Newspaper, once on a week day.
- The costs of the application shall be in cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.167 OF 2008 (OS)
IN THE MATTER OF PLOT NO.20 MEASURING 40
ACRES IN LAND REFERENCE NO.548 KERINGET, MOLO, OTHERWISE KNOWN AS LAND TITLE NUMBER OLENGURUONE/KERINGET BLOCK 1/20
BETWEEN
AARON KIPLANGAT KAMOING.............................PLAINTIFF/APPLICANT
AND
MAJOR WILSON KOITABA ……….......1ST DEFENDANT/ RESPONDENT
JOEL KIBET KOECH……………............2ND DEFENDANT/RESPONDENT
RULING
The application dated 22/11/2012 is made pursuant to provisions of Order V Rule 17 Civil Procedure Rules, and seeks that leave be granted to the plaintiff to effect service of summons upon the 2nd Defendant/Respondent, by way of substituted service through an advertisement in ANY of the local daily newspapers
This is because all efforts by the plaintiff to serve the 2nd defendant with the amended originating summons dated 18th November 2009 have not been successful. The plaintiff has not been able to establish the whereabouts of the 2nd defendant's place of business or residence.
In the supporting affidavit sworn by the plaintiff, he explains that he filed suit in the year 2008, in respect of land No.Olenguruone/Keringet/Block l/20 against the 1st defendant. After institution of the suit, he got to learn that the 1st defendant had transferred the same parcel of land to one JOELKIBET KOECH as evidenced by a copy of the search certificate. So he enjoined the said JOELas the 2nd defendant in the suit on 19th November 2009 by amending the originating summons, upon obtaining leave of court to do so.
The plaintiff has been unable to trace the 2nd defendant.
No affidavit demonstrating attempts at service on the 2nd defendant has been annexed. I think this is easy to understand, without an address of any sort to give a hint as to where to physically find the 2nd defendant, then attempts at personal service would be only chasing after the wind. I make this observation fully aware that Order V Rule 9(1) provides that:-
"Wherever it is practicable, service shall be made on the defendant in person….."
I am satisfied that, given the scenario obtaining here, with almost zero information on where to locate the 2nd defendant, the application is merited, and leave is granted to the plaintiff to effect service on the 2nd defendant by way of advertisement once in either The Daily Nation Newspaper or The Standard Newspaper, once on a week day.
The costs of the application shall be in cause.
Delivered and dated this 25th day of July, 2014 at Nakuru.
H.A. OMONDI
JUDGE
N/A for parties