https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4017

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLC NO. E001 OF 2026** **ANDREW GUYA OGALO………………………………….APPLICANT** **VERSUS** **JOSEPH OJUOK…..….......................................................RESPONDENT** **RULING** **Introduction** [1] This ruling determines the Applicant’s Notice of Motion dated May 26, 2026, brought under the provisions of Sections 1A, 1B, and 3A of the Civil Procedure Act (Chapter 21 of the Laws of Kenya), and Order 5 Rules 17, 21, and 22 of the Civil Procedure Rules, 2010. The Applicant seeks the following orders: a) Leave of this Court to serve court processes outside the jurisdiction upon the Respondent in the United Republic of Tanzania. b) Substituted service through a single advertisement in a newspaper of nationwide circulation in the United Republic of Tanzania. c) Upon publication of the advertisement, the service shall be deemed duly effected. d) Costs of the application be in the cause. [2] The dispute was commenced by an Originating Summons filed on 8th January 2026, in which the Applicant seeks a declaration that he has acquired title to land parcel Kisumu/Korando/1191 by adverse possession. The record shows that on 14th January 14, 2026, the Applicant filed a Notice of Motion under a certificate of urgency seeking similar orders for substituted service. On January 22, 2026, the Honourable Judge E. Asati declined the application, holding that the Applicant had not demonstrated sufficient efforts to trace and personally serve the Respondent. # The Application [3] According to the grounds and supporting affidavit, the drift of the application is that the Applicant instructed George Omondi Okuta, a licensed process server, to make further attempts to locate and serve the Respondent. On 23rd January 2026, the process server travelled to Akoko Village, Malunga Sub-Location, Alego East Location, Awendo Sub-County in Migori County. At that locality, the process server met Samson Otieno Masudi and George Otieno Masudi, who identified themselves as the Respondent’s brothers. [4] During the encounter, the brothers confirmed that the Respondent is their elder sibling and stated that he resides in Kijiji Tarani, Buemba District, Musoma, within the United Republic of Tanzania. The brothers declined to accept service on the Respondent’s behalf and indicated they did not possess his exact physical address, postal address, or telephone number. However, they promised to attempt to trace him and convey the information. The Applicant’s subsequent attempts to obtain an address from Samson Otieno Masudi via text messages and telephone calls were unsuccessful, as the Respondent’s exact whereabouts in Tanzania remain unknown. This state of affairs prompted the filing of the present application. **Analysis and Determination** [5] To assess the merits of the application, it is necessary to examine the relevant provisions of the Civil Procedure Rules, 2010, on substituted service and service out of Kenya. Order 5, Rule 17 of the Civil Procedure Rules governs substituted service: *“(1) Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.* *(2) Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally.* *(3) Where the court makes an order for substituted service it shall fix such time for the appearance of the defendant as the case may require.* *(4) Unless otherwise directed, where substituted service of a summons is ordered under this rule to be by advertisement, the advertisement shall be in Form No. 5 of Appendix A with such variations as the circumstances require.”* [6] Order 5, Rule 21 of the Civil Procedure Rules governs the circumstances in which service out of Kenya is permissible: *“Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever-* *(a) the whole subject-matter of the suit is immovable property situate in Kenya (with or without rents and profits);* *(b) any act, deed, will, contract, obligation or liability affecting immovable property situate in Kenya is sought to be consth was domiciled in Kenya, or for the execution (as to property situate in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to...”* [7] Order 5, Rule 22 provides for the service of other originating processes outside Kenya: *“(1) Service out of Kenya of the following process or of notice thereof may be allowed by the court by-* *(a) originating proceedings under any written law under which proceedings can be commenced otherwise than by plaint;* *(b) any summons, order or notice in any interpleader proceedings or for the appointment of an arbitrator (a); or* *(d) where the person on whom the originating summons, originating notice of motion, petition or other originating proceedings, or a summons, order or notice, is to be served is neither a Commonwealth citizen nor residing within the Commonwealth, a copy of the originating summons, petition, notice of motion or other...”* [8] Order 5, Rule 25 sets out the evidentiary requirements for an application for foreign service: “Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether...” [9] Order 5, Rule 27 provides for service where the defendant resides in a Commonwealth country: “Where leave to serve a summons or notice of summons out of Kenya has been granted under rule 21, and the defendant is a Commonwealth citizen as defined in subsections (1) and (2) of section 95 of the Constitution or resides in any of the countries for the time being mentioned in subsection (3) of that section, the summons shall be served in such manner as the Court may direct.” [10] The theme of these legal provisions is that the plaintiff must strictly comply with the statutory procedures for serving process abroad. In this case, because the Originating Summons was filed to establish ownership of the land parcel Kisumu/Korando/1191 in Kenya, it clearly falls within Order 5 Rule 21(a) and (b). Additionally, as the suit was initiated by Originating Summons, the Applicant correctly invoked Order 5 Rule 22, which incorporates Sub-rule (1)(a), the rules of foreign service, with necessary adjustments, for proceedings commenced otherwise than by plaint. Accordingly, the Court is satisfied that all legal requirements for granting permission to serve process outside the jurisdiction have been met. [11] The more contentious issue is the Applicant’s prayer to serve the Respondent by substituted service, in the first instance, through an advertisement in Tanzania’s Daily News. The Applicant argues that, because the Respondent’s physical address is unknown, personal service is impossible and that substituted service is authorised under Order 5 Rule 17. This Court’s interpretation of the procedure prescribed in Order 5 is that there is a fundamental distinction between substituted service under Order 5 Rule 17 and service outside the jurisdiction under Order 5 Rules 21 and 22. Substituted service is a domestic procedural device used when a defendant within the court’s local limits of jurisdiction cannot be personally served because of evasion or untraceability. Substituted service within the jurisdiction cannot be used to circumvent the mandatory requirements for service out of the jurisdiction, which require judicial-executive transmission channels. [12] The United Republic of Tanzania is a Commonwealth partner state. Accordingly, service is governed by Order 5 Rule 27, which requires the actual court summons to be served on the Respondent. This Court cannot order a unilateral advertisement in the Daily News of Tanzania as the primary mode of service. To do so would violate international comity and bypass Tanzania’s sovereign institutions. For a Kenyan court to order an immediate advertisement on Tanzanian soil, without first transmitting the summons to the Tanzanian judicial authorities for attempted personal service, would be procedurally incompetent and a violation of the reciprocal judicial assistance framework. [13] The Applicant's prayer to serve the Respondent by substituted service through a newspaper advertisement in the *Daily News* at first instance is legally incompetent and premature. Substituted service abroad cannot be ordered as a primary step to bypass the formal channels of international judicial assistance. The Applicant must first transmit the summons to the Office of the Chief Registrar of the Judiciary for onward presentation via the diplomatic channel to the judicial authorities in Tanzania for attempted personal service. Only when the Tanzanian authorities return an official certificate of non-service indicating that the Respondent cannot be traced personally may the Applicant apply for substituted service under Order 5 Rule 29(e) of the Civil Procedure Rules. **Final Orders and Directions** [14] Following the evaluation of the application, this Court orders as follows: 1. The Applicant is hereby granted leave to serve the Originating Summons dated January 8, 2026, and all accompanying processes, upon the Respondent, Joseph Ojuok, outside the jurisdiction of this Court, in the United Republic of Tanzania. 2. The Applicant’s prayers seeking to effect service upon the Respondent by way of substituted service through a newspaper advertisement in the *Daily News* in the first instance, and to deem such service as duly effected, are hereby denied as premature and legally untenable. 3. The Applicant shall present the Originating Summons and accompanying processes, duly signed and sealed with this Court's seal, to the Chief Registrar of the Judiciary. The Registrar shall transmit the same to the Permanent Secretary for Foreign Affairs for onward transmission through diplomatic channels to the judicial authorities of the United Republic of Tanzania for attempted service on the Respondent in Kijiji Tarani, Buemba District, Musoma, Tanzania, in accordance with Order 5 Rule 27 of the Civil Procedure Rules. 4. Pursuant to Order 5 Rule 26 of the Civil Procedure Rules, the Respondent is hereby granted sixty (60) days from the date of service of the processes to enter an appearance and file his response to the Originating Summons. 5. If the judicial or diplomatic authorities of the United Republic of Tanzania return an official declaration certifying that personal service cannot be effected on the Respondent because his exact physical address cannot be established, the Applicant shall have liberty to apply to this Court for a formal request for substituted service by newspaper advertisement in Tanzania, to be processed and transmitted diplomatically in compliance with Order 5 Rule 29(e) of the Civil Procedure Rules. 6. The costs of this application shall be in the cause. Ruling delivered virtually, signed and dated this 2nd day of July 2025. ## C. C. OLUOCH JUDGE In the presence of: Faith Court Assistant Applicant Absent