[2021] KEELC 1001 (KLR)
The court found that the applicant had demonstrated sufficient grounds for substituted service, as the respondent's whereabouts were unknown and personal service was not possible. The court has both statutory and inherent jurisdiction to grant such orders to ensure that justice is served and the respondent is given...
Source-derived case information.
- Citation
- [2021] KEELC 1001 (KLR)
- Parties
- Applicant: Clement Lawrence Odhiambo; Respondent: Omol Chuma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E002 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- application allowed
- Legal Topics
- Substituted Service, Adverse Possession, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Lawrence Odhiambo
Applicant
Omol Chuma
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the applicant should be allowed to serve the respondent by way of substituted service through a newspaper publication.
- 2 Whether the court has jurisdiction and inherent power to grant the orders sought in the interest of justice.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for substituted service, as the respondent's whereabouts were unknown and personal service was not possible. The court has both statutory and inherent jurisdiction to grant such orders to ensure that justice is served and the respondent is given an opportunity to be heard. The application was therefore meritorious and allowed, with the applicant permitted to serve the respondent by way of publication in the Standard newspaper. Costs of the application were ordered to be in the cause.
Court Disposition
application allowed
Orders
- The applicant is granted leave to serve the respondent by way of substituted service through publication in the Standard newspaper.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT HOMABAY
ELC OS NO. E002 OF 2021
CLEMENT LAWRENCE ODHIAMBO.............................................APPLICANT
-VERSUS-
OMOL CHUMA................................................................................RESPONDENT
RULING
1. On 10th November, 2021, the applicant, Clement Lawrence Odhiambo through M/S. Nyauke and Company Advocates filed an application by way of a Notice of Motion dated at November 2021, pursuant to Order 51 Rules 1 and 2 Orders 41 Rules 1 and 2 as well as section 3A, 1A of the Civil Procedure Act . He is seeking the orders infra:
a) The honourable court be pleased to allow the Applicant to serve the respondent by way of substituted service through the Standard newspaper.
b) The costs of this application be provided for in favour of the Plaintiff/Applicant.
2. The application is further anchored on a nine (9) paragraphed supporting affidavit of the applicant annexed thereto. The applicant deposed interalia, that he has filed the present suit by way of an originating summons dated 26th October, 2017 together with summons to enter appearance to be served on the Respondent whose physical address, Postal address and telephone number are unknown. That the application be granted in the interest of justice.
3. I have considered the application in its entirety. So, are the orders sought therein merited?
4. Indeed, this court has the inherent and special powers to grant orders to meet the best ends of justice as noted in all the provisions of the law cited on the face of the application, See also section 3 of the Environment and Land Court Act, 2015 (2011).
5. By the originating summons, the applicant is claiming to have acquired a portion measuring Zero decimal four two hectares (0. 42 Ha) in area of the suit land, LR. No. Kanyada/Kalanya/Kanyango/881 by way of adverse possession. Pursuant to the provisions of the law cited on the originating summons and section 13(1) of the Environment and Land Court (ELC) Act 2015(2011), this court has the requisite mandate to entertain this dispute.
6. The instant matter has to be heard and determined on its merits; see Philip Keipto Chemwolo and another –versus Augustine Kubende (1986) eKLR.
7. On that score, the Respondent Omol Chuma has to be served with the suit papers to enable him appear or decline to appear herein; see the case of Ogada versus Mollin (2009) KLR 620
8. Moreover, expeditious delivery of justice is bound to be realized by the mode of service sought in the application commanded by Article159(2) (b) and (e) of the constitution of Kenya 2010.
9. A fortiori, I find the application dated 9th November, 2021 and duly filed on 11th November 2021 meritorious. I proceed to allow the prayer for substituted service in the terms sought therein and as stated at paragraph 1 (a), hereinabove.
10. Costs of the application be in the cause.
G.M.A ONG’ONDO
JUDGE
DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 15TH DAY OF NOVEMBER, 2021.
In the presence of;
Applicant:-Absent
Respondent: Absent
Court Assistant: Okello -Present
G.M.A ONG’ONDO
JUDGE