[2021] KECA 780 (KLR)
The court found that the applicant had demonstrated, through an affidavit of service, that reasonable efforts to trace and serve the 2nd to 20th respondents and/or their advocates had failed. In the interests of justice and to ensure that all parties are notified of the pending motion for stay, the court held that...
Source-derived case information.
- Citation
- [2021] KECA 780 (KLR)
- Parties
- Applicant: Kamuthi Farmers Co-Operative Society Ltd; Respondent: Nairobi City County; Respondent: 2nd to 20th Respondents (unnamed)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E320 of 2020
- Procedural Posture
- Civil Application / Application for Leave to Effect Substituted Service
- Outcome
- Application for leave to effect substituted service granted.
- Legal Topics
- Substituted Service, Service of Process, Stay of Execution, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamuthi Farmers Co-Operative Society Ltd
Applicant
Nairobi City County
Respondent
2nd to 20th Respondents (unnamed)
Respondent
Procedural Posture
Civil Application / Application for Leave to Effect Substituted Service
Legal Issues
- 1 Whether the applicant should be granted leave to serve the motion for stay and court directions on the 2nd to 20th respondents by substituted service.
- 2 Whether reasonable efforts to effect personal service on the respondents have been demonstrated.
Ratio Decidendi
The court found that the applicant had demonstrated, through an affidavit of service, that reasonable efforts to trace and serve the 2nd to 20th respondents and/or their advocates had failed. In the interests of justice and to ensure that all parties are notified of the pending motion for stay, the court held that substituted service by advertisement in a widely circulated newspaper was appropriate. The court exercised its discretion under Rule 17 of the Court of Appeal Rules to grant leave for substituted service, emphasizing that this was the next best method to bring the proceedings to the respondents' attention.
Court Disposition
Application for leave to effect substituted service granted.
Orders
- Leave is granted to effect service of the motion for stay and the court's directions by advertisement in a local newspaper with wide circulation within 14 days of the date of this ruling.
- Costs of this motion shall be in the intended appeal.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), (IN CHAMBERS)
CIVIL APPLICATION NO. E320 OF 2020
BETWEEN
KAMUTHI FARMERSCO-OPERATIVE SOCIETY LTD.........................APPLICANT
AND
NAIROBI CITY COUNTY & 19 OTHERS............................................ RESPONDENTS
(An application seeking leave to effect service of the application dated 19thOctober, 2020 and the Court’s directions issued on 26thOctober, 2020 through substituted service)
RULING
Komingoi, J., in a judgment dated 4th June, 2020 dismissed the applicant’s suit with costs to the 1st respondent. She however allowed the 1st respondent’s counter-claim and entered judgment in the terms prayed. The dispute involves a property known as LR No. 71/7, situated in Kahawa in the City of Nairobi.
Intent on challenging that decision in this Court, the applicant took out a motion dated 19th October, 2020 under Rule 5(2) (b) of this Court’s Rules seeking an order to stay the impugned judgment and the resultant decree. Thereafter, on 26th October, 2010, this Court issued directions with regard to the disposal of the said motion which included its service on all parties.
According to the applicant’s advocates, they made all possible efforts to trace the 2nd to the 20th respondents and/or their advocates without any success. As a result, the applicant filed another motion dated 6th November, 2020 under Rule 17of this Court’s Rules seeking leave to effect service of the motion for stay and the Court’s directions upon those respondents through substituted service, by way of advertisement in a daily newspaper with a wide circulation.
On 9th March, 2021, both motions were listed for hearing before the full Court. However, by virtue of Rule 53 of this Court’s Rules only the motion for stay could be heard by the full Court. As such, the Court directed the motion for substituted service to be heard first by a single Judge of the Court. To save time and obviate delay, the Presiding Judge (the President of the Court) found it expedient to consider the application, sitting as a single Judge.
Having gone through the motion, I am satisfied that the applicant, by the affidavit of service annexed thereto, has demonstrated that not only have reasonable efforts been made by its advocates to trace the 2nd to the 20th respondents and/or their advocates but also that those efforts have come to naught. See William Ngare & 4 others vs. Public Trustee & 10 others [2015] eKLR.
I am also convinced that the next best avenue of ensuring the concerned respondents are aware of the motion for stay is through the proposed mode of substituted service.
I accordingly grant the leave sought to effect service of the motion for stay and this Court’s directions by an advertisement in a local newspaper with wide circulation within 14 days of the date of this ruling.
Costs of this motion shall be in the intended appeal.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
W. OUKO, (P)
.......................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR