[2007] KEHC 936 (KLR)
The court found that the applicant had made sufficient and reasonable efforts to serve the defendant personally, but these efforts were unsuccessful as the defendant had not been seen for 16 years and his whereabouts were unknown. In the interests of justice and to enable the suit to proceed, the court exercised its...
Source-derived case information.
- Citation
- [2007] KEHC 936 (KLR)
- Parties
- Plaintiff: Harrison K. Ndundi; Defendant: Samuel Kiiru Kamau
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 74 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Substituted Service
- Outcome
- Application for substituted service granted.
- Judges
- CA Ombija
- Legal Topics
- Substituted Service, Service of Process, Summons, Adverse Possession
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Harrison K. Ndundi
Plaintiff
Samuel Kiiru Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the court should grant leave for substituted service of summons on the defendant.
- 2 Whether sufficient efforts have been made to serve the defendant personally.
Ratio Decidendi
The court found that the applicant had made sufficient and reasonable efforts to serve the defendant personally, but these efforts were unsuccessful as the defendant had not been seen for 16 years and his whereabouts were unknown. In the interests of justice and to enable the suit to proceed, the court exercised its discretion to allow substituted service by advertisement in a widely circulated newspaper. The court was satisfied that this mode of service was appropriate in the circumstances and would ensure that the defendant is notified of the proceedings.
Court Disposition
Application for substituted service granted.
Orders
- Summons to enter appearance to be served upon the defendant by way of substituted service through advertisement in the Daily Nation or Standard Newspaper on a working day.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT
MALINDI
CIVIL CASE 74 OF 2007
HARRISON K. NDUNDI …………………..…….PLAINTIFF
VERSUS
SAMUEL KIIRU KAMAU……………………..DEFENDANT
R U L I N G
By an application by way of Chamber Summons pursuant to the provisions of Order V Rule 17(1) and Order XLVIII Rule 5(1) (d) (ii) of the Civil Procedure Rules, the applicant seeks orders:
i) That the summons to enter appearance herein be served upon the defendant by way of substituted service.
ii) That costs of this application be provided for.
The application is based on the grounds that:
1) All efforts made to trace and serve the defendant have come to nought.
2) The defendant has not been seen for the last 16 years.
3) Substituted service to issue to enable the speedy conclusion of this suit.
The application is predicated upon the annexed affidavit of Omagwe E. Angima sworn on the 5th day of October 2007.
For the applicant it was argued that upon being instructed to lodge claim of adverse possession by the plaintiff he filed suit and prepared summons to enter appearance.
That subsequently he has endeavoured to serve the defendant with summons to enter appearance in vain. The physical and location of the defendant are unknown, hence this application.
I have carefully analysed and considered the application and the affidavit in support in addition to counsel’s oral submission. In my view the application is merited.
Accordingly, there shall be orders in terms of prayer 1. The advertisement to be on Daily Nation or Standard Newspaper on a working day. Costs shall be in the cause.
DATED and delivered at Malindi this 26th day of November 2007
N. R. O. Ombija
JUDGE