[2023] KEELC 15912 (KLR)
The court found that the plaintiff had demonstrated sufficient grounds for substituted service, including the inability to trace the 3rd defendant and the prolonged pendency of the suit. Guided by Article 159(2)(b) of the Constitution, which mandates that justice shall not be delayed, and Order 5 Rule 17 of the...
Source-derived case information.
- Citation
- [2023] KEELC 15912 (KLR)
- Parties
- Plaintiff: County Government Of Homabay; Defendant: Keysan Auctioneers Services; Defendant: Equity Bank; Defendant: Peres Atieno Mirura; Defendant: Chief Land Registrar; Defendant: National Land Commission; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2021
- Procedural Posture
- Environment and Land Case / Interlocutory Application for Substituted Service
- Outcome
- Application for substituted service allowed.
- Judges
- GMA Ongondo
- Legal Topics
- Substituted Service, Service of Process, Delay of Justice, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
County Government Of Homabay
Plaintiff
Keysan Auctioneers Services
Defendant
Equity Bank
Defendant
Peres Atieno Mirura
Defendant
Chief Land Registrar
Defendant
National Land Commission
Defendant
Attorney General
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application for Substituted Service
Legal Issues
- 1 Whether the plaintiff should be allowed to serve the 3rd defendant by substituted service.
- 2 Whether prolonged delay in service justifies substituted service under the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff had demonstrated sufficient grounds for substituted service, including the inability to trace the 3rd defendant and the prolonged pendency of the suit. Guided by Article 159(2)(b) of the Constitution, which mandates that justice shall not be delayed, and Order 5 Rule 17 of the Civil Procedure Rules, the court held that the interests of justice required granting the application. The court therefore allowed the plaintiff to serve the 3rd defendant by substituted service within thirty days and directed service on the 3rd, 4th, and 5th defendants by the plaintiff's counsel.
Court Disposition
Application for substituted service allowed.
Orders
- Plaintiff to serve the 3rd defendant by substituted service within thirty (30) days.
- Plaintiff's counsel to serve the 3rd, 4th, and 5th defendants.
Full Case Text
Judgment text and source record
34 paragraphs
County Government of Homabay v Keysan Auctioneers Services & 5 others (Environment & Land Case 21 of 2021) [2023] KEELC 15912 (KLR) (22 February 2023) (Ruling)
Neutral citation: [2023] KEELC 15912 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 21 of 2021
GMA Ongondo, J
February 22, 2023
Between
County Government Of Homabay
Plaintiff
and
Keysan Auctioneers Services
1st Defendant
Equity Bank
2nd Defendant
Peres Atieno Mirura
3rd Defendant
Chief Land Registrar
4th Defendant
National Land Commission
5th Defendant
Attorney General
6th Defendant
Ruling
1. Learned Counsel, Mr. S.O Nyauke for the plaintiff has applied for service of the 3rd defendant, Peres Atieno Mirura by way of substituted service on the grounds as follows;a.The matter has been pending in court for a long time.b.The 3rd defendant cannot be traced.c.In the interest of justice
2. Mr. Ondade Learned Counsel for the 1st and 2nd defendants has no objection to the application.
3. Indeed, this suit has been pending in court for along period of time. Article 159(2) (b) of the Constitutionof Kenya 2010, reads:“Justice shall not be delayed”
4. This court is guided by Order 5 Rule 17 of the Civil Procedure Rules, 2010on substituted service.
5. So, the plaintiff’s application is satisfactory and is hereby allowed under Order 5 Rule 17 (supra).
6. The applicant’s Counsel to serve the 3rd respondent by substituted service within the next thirty (30) days from this date.
7. Also, the 3rd, 4th and 5th respondents be served by the plaintiff counsel.
8. The matter is fixed for further directions on April 17, 2023.
9. Orders accordingly.
VIRTUALLY DELIVERED AND DATED AT HOMABYA THIS 22ND DAY OF FEBRUARY 2023. G.M.A ONG’ONDOJUDGEPRESENTMr. S.O Nyauke, learned counsel for the plaintiffMr. Odande learned counsel for the 1st and 2nd defendants.