https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4744

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC LOS NO. E007 OF 2026** **HUMPHREY GANDI MLEKA** ........................................ **APPLICANT** **VERSUS** **FATUMA NAPASHA SHEWE** ........................................ **RESPONDENT** **RULING** 1. Sometimes justice must travel by roads other than the ordinary highway. A party is first to be sought in the familiar places: at home, at work, through known contacts, and by the usual modes of service. But when those paths run cold, the law does not fold its hands. It permits the court, carefully and reluctantly, to direct another mode of notice so that process may still reach the person who has not been found. 2. Before court is the Notice of Motion dated **12th March 2026** brought under Order 5 rule 17 and Order 51 rule 1 of the Civil Procedure Rules, 2010, sections 1A, 1B and 3A of the Civil Procedure Act, and all other enabling provisions of the law. The applicant seeks the following orders, framed verbatim: 3. ***THAT all pleadings in this matter be served upon the Respondent by way of advertisement once in the Daily Nation or the Standard Newspaper.*** 4. ***THAT the Respondent be required to enter appearance within 15 days from the date of service.*** 5. ***THAT the cost of this application be provided for.*** 6. The motion is supported by the affidavit of **Kipkurui Ngeno Birir**, Advocate, sworn on **11th March 2026**, together with the affidavit of non-service sworn by the licensed court process server, **George Otieno**, on the same date. 7. The material placed before court shows that the process server received the originating summons and accompanying pleadings for service upon the respondent on **29th January 2026**. He depones that, while accompanied by the applicant, he made several physical attempts to trace the respondent at the premises known as **Plot MSAMWE MBELEGEZA/1207**, made inquiries from the immediate neighbourhood, and even proceeded to the Lands Office in an effort to obtain the respondent’s last known postal or physical address, all without success. Counsel for the applicant similarly depones that the respondent cannot be traced for purposes of personal service and prays for leave to serve through a newspaper advertisement. 8. The law on the point is settled**. Order 5 rule 17** of the Civil Procedure Rules empowers the court, where it is satisfied that summons cannot be served in the ordinary way, to order service in such other manner as it thinks fit, and such substituted service is as effectual as personal service once the court fixes the time for appearance. The rule provides: *“17. (1) Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.* *(2) Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally.* *(3) Where the court makes an order for substituted service it shall fix such time for the appearance of the defendant as the case may be.* *(4) Unless otherwise directed, where substituted service of a summons is ordered under this rule to be by advertisement, the advertisement shall be in Form No. 5 of the Appendix with such variations as the circumstances require.”* 1. In ***Musyoka & 2 others v Munguti & 2 others* [2023] KEELC 473 (KLR)**, the court affirmed that; “*the law that governs the grant of leave to effect substituted service is set out in Order 5 Rule 17(1) of the Civil Procedure Rules of 2010*.” It further held that substituted service is available; “*where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order*.” On the facts of that case the court was satisfied, observing that; “*the Applicant stated on oath that the 1st Defendant’s physical and postal address is unknown to them and thus they are unable to effect personal service. I am satisfied that personal service may not be possible in the circumstances raised in the affidavit*.” 1. The Court of Appeal in ***Maina v Langat & 2 others* [2024] KECA 395 (KLR)** underscored the secondary character of the remedy, holding that **“*substituted service is resorted to after all reasonable and proper efforts have been made to trace the respondent but in vain*.”** The court accepted that **“*the law allows the court to grant leave to a party to serve by substituted service if it is satisfied that for any reason the summons cannot be served personally in accordance with the provisions of Order 5 Rule 17 of the Civil Procedure Rule*,”** and concluded that **“*pursuant to Order 5 Rule 17 of the Civil Procedure Rule, leave ought to be granted so that the Respondents can be served by way of advertisement in a newspaper*.”** 2. That said, experience teaches that an order for substituted service should not issue on bare generalities. The court must insist on a real demonstration of diligent effort and should, where the circumstances permit, favour **graduated alternatives** reasonably calculated to bring the proceedings to the attention of the person to be served before resort is had to the printed page alone. In an age when people may be easier found through a telephone number, an email address, a messaging application, a relative, an agent, or a last known residence than through a formal knock on the door, procedure must remain the servant of justice and not its jailer. 3. Accordingly, this court considers that the requirements for substituted service are better met where the applicant demonstrates, in a specific and chronological affidavit, the steps taken to effect personal service, the last known physical and postal addresses explored, the inquiries made from neighbours, agents, relatives, employers, or public registries where appropriate, and any available electronic means attempted or reasonably considered, including telephone contact, SMS, email, or WhatsApp service where such contact details are known. The proposed mode of substituted service must then be one reasonably likely, in the circumstances of the case, to bring the suit to the respondent’s notice. 4. In the present matter, the affidavits disclose more than a perfunctory attempt. There were physical visits, neighbourhood inquiries, and registry follow-up, all of which yielded nothing. On the material before court, I am satisfied that reasonable efforts have been made to trace the respondent, but without success. I am equally satisfied that service through advertisement in a newspaper of national circulation, coupled with service through any last known electronic or physical contact that may be available to the applicant, will best serve the ends of justice in this matter. 5. The court must, in every case, balance two imperatives: first, that no party should be shut out unheard through stealth or evasion; and second, that no litigant should obtain orders behind the back of another without first making genuine efforts to give notice. The order that commends itself here is therefore one that permits newspaper advertisement, but also requires a graduated effort at any additional available channels of notification so that substituted service is not merely formal, but fair. **Disposal orders** 1. In the result, the application dated **12th March 2026** is allowed on the following terms: 2. ***The applicant is hereby granted leave to serve upon the respondent by way of substituted service through advertisement in either the Daily Nation or the Standard newspaper, in a reasonably sized and conspicuous part of the paper.*** 3. ***In addition to the advertisement, and as part of graduated substituted service, the applicant shall, where any last known contact is available, also transmit the pleadings or a notice of the suit by any of the following means: SMS to the respondent’s last known telephone number, WhatsApp message to that number, email to the last known email address, registered post to the last known postal address, or delivery at the last known residence or place of business addressed to the respondent.*** 4. ***An affidavit of compliance shall be filed exhibiting the newspaper advertisement and any available proof of transmission or attempted transmission through the additional modes stated above.*** 5. ***The respondent shall enter appearance within thirty (30) days from the date of publication of the advertisement, in default of which the matter may proceed in accordance with the law.*** 6. ***Costs of the application shall be in the cause.*** **It is so ordered.** This Ruling is **dated, signed** and **delivered** virtually vide Microsoft Teams at Mombasa this **23rd day of July, 2026**. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **AKELLO, B., OGW** **JUDGE** **In the presence of:** Mr. Birir — for the Applicants N/A — for the Respondent Gillian Mutamba – Court Assistant