[2023] KEELC 15965 (KLR)
The court found that the appellant had demonstrated sufficient grounds for substituted service, namely the death of the respondents' advocate, the absence of any notice of change of advocate or intention to act in person by the respondents, and the inability to trace the respondents. The court relied on Order 5 Rule...
Source-derived case information.
- Citation
- [2023] KEELC 15965 (KLR)
- Parties
- Appellant: Construction Group Company Limited; Respondent: Anyango Ogada (Suing as the legal representative of the Estate of Debora Owande Ogada (Deceased)); Respondent: Sam Onyango Ogada; Respondent: Agnes Atieno Otieno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 29 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Substituted Service
- Outcome
- Application for substituted service allowed.
- Judges
- GMA Ongondo
- Legal Topics
- Substituted Service, Service of Process, Appeals Procedure, Estate Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Construction Group Company Limited
Appellant
Anyango Ogada (Suing as the legal representative of the Estate of Debora Owande Ogada (Deceased))
Respondent
Sam Onyango Ogada
Respondent
Agnes Atieno Otieno
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the appellant should be allowed to serve the respondents by substituted service due to inability to trace them and the death of their advocate.
Ratio Decidendi
The court found that the appellant had demonstrated sufficient grounds for substituted service, namely the death of the respondents' advocate, the absence of any notice of change of advocate or intention to act in person by the respondents, and the inability to trace the respondents. The court relied on Order 5 Rule 17 of the Civil Procedure Rules, 2010, which provides for substituted service when personal service is impracticable, and cited the importance of service as established in Baiywa v Bach (1987) KLR 89. The court also considered constitutional provisions on access to justice and fair hearing, as well as statutory provisions empowering the court to make orders for the just...
Court Disposition
Application for substituted service allowed.
Orders
- The appellant's counsel shall serve the respondents by substituted service within thirty days from the date of the ruling.
- The appeal is set for April 17, 2023 to confirm compliance and for directions.
Full Case Text
Judgment text and source record
28 paragraphs
Construction Group Company Limited v Ogada (Suing as the legal representative of the Estate of Debora Owande Ogada (Deceased) & 2 others (Environment and Land Appeal 29 of 2021) [2023] KEELC 15965 (KLR) (1 March 2023) (Ruling)
Neutral citation: [2023] KEELC 15965 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 29 of 2021
GMA Ongondo, J
March 1, 2023
(FORMERLY MIGORI ELC APPEAL NO 30 OF 2020)
Between
Construction Group Company Limited
Appellant
and
Anyango Ogada (Suing as the legal representative of the Estate of Debora Owande Ogada (Deceased)
1st Respondent
Sam Onyango Ogada
2nd Respondent
Agnes Atieno Otieno
3rd Respondent
Ruling
1. The appellant’s counsel, Ms Kiiru has applied to be allowed to serve the respondents by way of substituted service on the grounds that;a.Learned counsel, Mr Kimanga who is record for the respondents is deceased.b.There is no notice of change of advocate or intention to act in person by the respondents filed herein.c.The respondents cannot be traced.
2. The respondents’ counsel is reportedly deceased and the respondents cannot be traced.
3. This court is conscious of order 5 rule 17 of the Civil Procedure Rules, 2010 on substituted service; see also Baiywa v Bach (1987) KLR 89 on the essence of service upon a party.
4. In the spirit of articles 48, 50 (1) , 25 (c ) of the Constitution of Kenya, 2010 as well as section 3 of the Environment and Land Court Act, 2015 (2011) and sections 1A, 1B, 3 and 3A of the Civil Procedure Act chapter 21 Laws of Kenya, I find the application meritorious.
5. Accordingly, the application is allowed.
6. The appellant’s counsel shall serve the respondents by substituted service within the next thirty days from this date.
7. The appeal is set for April 17, 2023 to confirm compliance and for directions.
8. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 1ST MARCH 2023G. M. A ONG’ONDOJUDGEPRESENTa. Ms. Kiiru, learned counsel for the appellant.b. A. Okello, Court assistant.