[2019] KEELC 3967 (KLR)
The court found that the plaintiff had made reasonable and unsuccessful efforts to serve the defendant personally with the originating summons. Given the necessity of service before the suit can proceed and the inability to trace the defendant, the court held that substituted service by advertisement in the Daily...
Source-derived case information.
- Citation
- [2019] KEELC 3967 (KLR)
- Parties
- Plaintiff: James Mutugi Mwithi; Defendant: Dedan Mugo Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2019
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Substituted Service
- Outcome
- Application allowed.
- Judges
- FM Njoroge
- Legal Topics
- Substituted Service, Service of Process, Limitation of Actions, Originating Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Mutugi Mwithi
Plaintiff
Dedan Mugo Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application for Substituted Service
Legal Issues
- 1 Whether the plaintiff should be granted leave to serve the originating summons on the defendant by substituted service through advertisement in the Daily Nation Newspaper.
- 2 Whether the plaintiff has demonstrated sufficient efforts to serve the defendant personally.
Ratio Decidendi
The court found that the plaintiff had made reasonable and unsuccessful efforts to serve the defendant personally with the originating summons. Given the necessity of service before the suit can proceed and the inability to trace the defendant, the court held that substituted service by advertisement in the Daily Nation Newspaper was justified and in accordance with the Civil Procedure Rules. The application was therefore allowed, with costs to be in the cause, and the plaintiff was directed to effect substituted service within 30 days.
Court Disposition
Application allowed.
Orders
- Leave is granted to the plaintiff to serve the originating summons on the defendant by advertisement in the Daily Nation Newspaper.
- Service by way of substituted service to be executed within 30 days of the order.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 01 OF 2019
IN THE MATTER OF LAND PARCEL NO. SOUTH THARAKA/TUNYAI ‘A’/390
IN THE MATTER OF SECTIONS 7, 37 AND 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER 37 RULE 8 OF THE CIVIL PROCEDURE RULES
BETWEEN
JAMES MUTUGI MWITHI............................................PLAINTIFF
VERSUS
DEDAN MUGO MWANGI...........................................DEFENDANT
RULNIG
1. This application is dated 26th day of February, 2019and seeks orders:
a) That the plaintiff/applicant be given leave to serve the Originating Summons in this case on the defendant, Daniel Mugo Mwangi by advertising it once in the Daily Nation Newspaper.
b) That the costs of this application be costs in the cause.
2. The application is supported by the affidavit of JAMES MUTUGIMWATHI sworn on 21st February, 2019 and has the following grounds:
1. This suit was filed on 22nd January, 2019 by my advocates on my instructions.
2. Since filing the same I have made efforts to trace the defendant and have him served with the originating summons, but my efforts have been fruitless.
3. It is imperative that the originating summons must be served before this suit is heard, hence the necessity for the order sought.
3. Mr. Kaai Mugambi, the plaintiff’s advocate, asked the court to allow service by way of substituted service because he had not been able to trace the defendant.
4. I have considered the circumstances surrounding the application and find it has merit.
5. The application is allowed with costs to be in the cause.
6. Service by way of substituted service through the Daily Nation Newspaper to be executed within 30 days of today.
7. Directions on 10th June, 2019.
Delivered in open Court at Chuka this 8th day of April, 2019
in the presence of:
CA: Ndegwa
Mr. Kaai Mugambi for the plaintiff
P.M. NJOROGE
JUDGE