[2008] KEHC 1166 (KLR)
The court found that the plaintiff had demonstrated sufficient effort to effect personal service on the 3rd defendant without success. The affidavit evidence and submissions established that the 3rd defendant could not be traced despite engaging a process server. In such circumstances, the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2008] KEHC 1166 (KLR)
- Parties
- Plaintiff: Hassan Asaria; Defendant: Sarbjit Singh Rai; Defendant: Registrar of Titles; Defendant: Michael Ombalo Ungonda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 604 of 2006
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Extension and Substituted Service
- Outcome
- Application allowed.
- Judges
- JL Osiemo
- Legal Topics
- Service of Process, Substituted Service, Extension of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Asaria
Plaintiff
Sarbjit Singh Rai
Defendant
Registrar of Titles
Defendant
Michael Ombalo Ungonda
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Extension and Substituted Service
Legal Issues
- 1 Whether the court should extend the validity of summons in respect of the 3rd defendant.
- 2 Whether the court should allow substituted service by advertisement in a newspaper.
Ratio Decidendi
The court found that the plaintiff had demonstrated sufficient effort to effect personal service on the 3rd defendant without success. The affidavit evidence and submissions established that the 3rd defendant could not be traced despite engaging a process server. In such circumstances, the Civil Procedure Rules empower the court to extend the validity of summons and to order substituted service. The court was satisfied that substituted service by advertisement was necessary and appropriate in this case, and therefore granted the orders sought by the plaintiff.
Court Disposition
Application allowed.
Orders
- The validity of summons in respect of the 3rd defendant is extended.
- Service of summons on the 3rd defendant to be effected by advertisement in one edition of the Daily Newspaper.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 604 of 2006
HASSAN ASARIA……………….........……………………….PLAINTIFF
VERSUS
SARBJIT SINGH RAI……………...…………………..1ST DEFENDANT
REGISTRAR OF TITLES…………………………….2ND DEFENDANT
MICHAEL OMBALO UNGONDA…………..………..3RD DEFENDANT
R U L I N G
Before me is a Chamber Summons brought by the plaintiff under Order 5 Rule 1 and 7 of the Civil Procedure Rules for orders that the validity of summons in respect of the 3rd defendant herein be extended and that service of summons on the 3rd defendant be effected by advertisement in one edition of the Daily Newspaper. In support of the application Hassanari Asaria has sworn an affidavit giving grounds. He avers that efforts to effect service on the 3rd defendant have been unsuccessful.
Miss Ambani appearing for the plaintiff submitted that the plaintiff filed this suit on 9th June 2006 and has been able to service the 1st and 2nd defendants but efforts to effect service on the 3rd defendant has been unsuccessful. The plaintiff engaged the services of one David Ochieng, a process server employed by Doel Investments but his efforts to trace the 3rd defendant were fruitless.
Having considered the application in light of the affidavit evidence on record and the submissions by counsel, I am satisfied that the plaintiff has demonstrated that it is not possible to effect personal service on the 3rd defendant and therefore substituted service is necessary.
Accordingly I allow the plaintiff’s application in terms of prayers 1 and 2 of the Chamber Summons dated 5th May 2008. The first service to be repeated after 14 days.
Dated and delivered at Nairobi this 17th day of June 2008.
J. L. A. OSIEMO
JUDGE