https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4588

Karisa & 40 others v Husein (Environment and Land Case E009 of 2026) [2026] KEELC 4588 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4588 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E009 of 2026 BA Akello, J July 16, 2026 IN THE MATTER OF: LAND PARCEL NO. 345/I/MN, CR. 1767 (INCLUDING ALL SUB-DIVISIONS THEREFROM). AND IN THE MATTER OF: AN APPLICATION FOR DECLARATION THAT THE PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THREE DECIMAL ONE SIX (3.16) ACRES OR THEREABOUT OF THE ABOVE SAID PARCEL OF LAND BY WAY OF ADVERSE POSSESSION Between Omari Kenga Karisa & 40 others & 40 others Plaintiff and Abdi Husein Defendant Ruling A. Introduction 1.“Vigilantibus, non dormientibus, jura subveniunt” — the law aids the vigilant, not those who slumber. That old maxim is, in truth, the philosophical soil in which the doctrine of adverse possession takes root. It rewards the vigilant occupier and, by the same breath, disciplines the sleeping proprietor. And yet — and here lies the tension I must resolve today — the very same law that rewards the vigilant is jealous, protective, almost tender, of the registered proprietor’s right of title enshrined in Article 40 of the Constitution of Kenya, 2010. Two great principles meet in this file: the equity that answers long, open, notorious occupation, and the constitutional promise that no one shall be deprived of property save through the due process of law. Between them, the humble question of service of process is not a mere procedural formality; it is the bridge on which those two principles must walk in step. 2.The Plaintiffs, forty-one of them, are residents of Bamburi in Mombasa County. They say they have lived, built, planted and buried their dead upon 3.16 acres out of Plot No. 345/I/MN, CR No. 1767 for well over twelve years. By an Originating Summons dated 20th January 2026 they seek this Court’s declaration that they have, in the fullness of time and by force of long possession, become the owners of the said 3.16 acres, and that the register be altered accordingly, in place of the Defendant Abdi Husein. The Defendant is nowhere to be found. It is that fact — the absent proprietor — that has provoked the present interlocutory application, which is the sole matter now before me. 3.By Notice of Motion dated 2nd July 2026, brought under Order 5 Rule 17(1) and (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010, and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21, the Plaintiffs seek leave of this Court to effect service of the Originating Summons dated 20th January 2026, and of the injunctive application dated 17th June 2026, upon the Defendant by way of substituted service through one of the daily newspapers of wide circulation. The Application is supported by the affidavit of Omari Kenga Karisa, the 1st Plaintiff, sworn on 2nd July 2026, and by the affidavit of non-service of Paul Odhiambo Outah, a licensed court process server, of even date, annexed as exhibit OKK-1. B. Background 4.The origins of this dispute lie in the coastal soils of Bamburi. The Plaintiffs plead a long, uninterrupted occupation of the suit land — sufficient, they say, to have ripened into a title good against the world, and certainly against a proprietor who has, for reasons known only to himself, been absent from the land these many years. That case awaits its day of trial. It is not the case I must decide today. 5.On 17th June 2026 the Plaintiffs moved this Court ex parte by a Notice of Motion supported by a Certificate of Urgency, alleging that police officers had, on 16th June 2026, verbally intimated an imminent demolition of their houses and their eviction from the suit land. On 18th June 2026, sitting in chambers, I declined to certify that Motion as urgent — for I do not certify applications as urgent lightly — but, mindful that the res had to be preserved lest the substantive suit be reduced to an argument over ruins, I granted a temporary injunction in terms of prayer 2 of that Motion pending the inter partes hearing which I then fixed for 7th July 2026, together with the usual directions for extraction, service, response and any supplementary affidavit. 6.Service of that Order upon the Officer Commanding Station, Bamburi Police Station, was effected on 19th June 2026 by William C. Kenga, Advocate having conduct of the matter, whose affidavit of service dated in July 2026 is on the file. Service upon the Defendant himself, however, has proved elusive — and it is that elusiveness that has driven the Plaintiffs back to this Court, hats in hand, seeking leave to serve him not in person, but through the pages of a newspaper. C. The Application and the Evidence in Support 7.The Plaintiffs’ case, in the affidavit of the 1st Plaintiff, is short and orthodox. They filed the Originating Summons. They handed the pleadings to a licensed process server. He tried, and he could not find the Defendant, either in Mombasa or in Nairobi. Personal service is therefore impracticable. Substituted service through a widely-circulated daily newspaper is the only avenue open. No prejudice, they say, will be occasioned to the Defendant; but the Plaintiffs will suffer irreparable loss if the matter is stalled. 8.The evidential linchpin of the Application is the affidavit of non-service of Paul Odhiambo Outah, a licensed court process server trading as Kipingi Service of P.O. Box 40374-80100, Mombasa. He deposes that on 20th February 2026 he received the Originating Summons from Kenga & Company Advocates with instructions to serve the Defendant at Mombasa; that using the contacts supplied by the 1st Plaintiff he traced the Defendant at both Mombasa and Nairobi, where the Defendant was said to reside; that he made seven attempts in Mombasa and four attempts in Nairobi — eleven attempts in all — and that each was fruitless. He accordingly returned the Originating Summons unserved. 9.The Application is ex parte in fact, and necessarily so; there is no Defendant on record to answer it. It falls therefore to this Court to be, so to speak, the Defendant’s guardian at the door — to test the material with a scrupulous eye, precisely because he cannot test it himself. D. Issues for Determination 10.Cardozo, J. once observed in Berkey v. Third Avenue Railway Co., 244 N.Y. 84 (1926), that “metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” The same is true of issues in a ruling. A judge who frames the questions loosely at the threshold enslaves the reasoning that follows. I therefore frame them tightly. From the Motion, the affidavits and the file as a whole, a trilogy of issues arises for determination:(a)Whether, on the material presented, the Plaintiffs have laid a sufficient evidential foundation under Order 5 Rule 17 of the Civil Procedure Rules, 2010 for the exercise of this Court’s discretion to authorise substituted service upon the Defendant.(b)If so, what mode or combination of modes of substituted service is proportionate, effective and consonant with the Defendant’s rights under Article 40 and Article 50(1) of the Constitution of Kenya, 2010, given the peculiar gravity of an adverse-possession suit.(c)What ancillary directions ought to attend the order, and as to costs. E. Analysis and Determination The Tension at the Heart of this Application 11.Before I take up the trilogy of issues one by one, I must name the tension that pulls this Application in two directions at once — for it is that tension, and not any doctrinal doubt, that produces the disposition I shall arrive at. 12.On the one hand, the doctrine of adverse possession is, by its very nature, a doctrine of the absent proprietor. A claim under section 38 of the Limitation of Actions Act, Cap. 22 presupposes that the registered owner has, for twelve unbroken years, been out of possession, out of touch, and out of assertion of his rights. To require personal service upon such a proprietor in every case would be to demand of the Plaintiff the impossible and to lock the doors of the Court against a class of claims the law has expressly created. It is for that reason that the Kenyan courts have, as a matter of settled practice, been generous with orders of substituted service in adverse-possession suits — see Mwachilangu v Quadco Two Hundred and Forty Four Limited, ELC Originating Summons E002 of 2023, [2025] KEELC 615 (KLR), where substituted service by the Standard Newspaper was allowed on 22nd January 2024 after the process server failed to trace the respondent, and the eventual decree stood. To that extent, the Plaintiffs push at an open door. 13.On the other hand, and pulling firmly the other way, is the constitutional weight of what an adverse-possession decree does. Such a decree does not order the payment of money, or the doing of an act. It goes to the very foundation of property; it commands the Land Registrar to strike out the name of a registered proprietor and to substitute the name of another. It divests title. And title, in this Republic, is guaranteed by Article 40 of the Constitution of Kenya, 2010. Coupled with the guarantee of fair administrative action under Article 47 and the right to be heard under Article 50(1), the constitutional posture demands that a proprietor about to be so divested must — must — have had a fair and honest chance to appear and be heard. Anything less imperils not only the decree but the fabric of registered title itself. 14.The tension, put plainly, is this: procedural generosity to the Plaintiff must not become procedural cruelty to the Defendant. The Plaintiffs must not be shut out for a technicality that can be cured; the Defendant must not be extinguished by a fiction that will not stand scrutiny. That is the equilibrium a conditional order alone can hold. As Lord Denning, MR observed in Re Pritchard (deceased) [1963] 1 Ch. 502, and as our Court of Appeal has echoed on more occasions than I can here recite, service is not a ritual to be performed for its own sake but a means to a substantive end — that the party to be affected shall have notice, real notice, of the proceedings against him. The order I make today must serve that substantive end, not merely tick a procedural box. 15.Cardozo, J. captured the same idea, though in a different context, in Meinhard v. Salmon, 249 N.Y. 458 (1928), when he spoke of “the punctilio of an honour the most sensitive.” The words were addressed to fiduciaries, but they apply with equal force to a court which is about, on ex parte material, to authorise the service of process which may in due course cost a registered proprietor his title. Such an order is the punctilio of a court’s conscience, and it deserves a punctilious inquiry. It is with that inquiry that I now turn to the trilogy. (a) Has the Court’s Discretion Under Order 5 Rule 17 been Engaged? 16.Order 5 Rule 17(1) of the Civil Procedure Rules, 2010 is the pivot on which this Application turns. It provides that 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 order the summons to be served by affixing a copy in a conspicuous place in the court-house, upon the last-known dwelling of the defendant, “or in such other manner as the court thinks fit.” The gateway to the discretion is the word satisfied. Satisfaction is not a formality. It is a state of mind reached only on evidence. 17.The evidential yardstick was laid down by our own courts in Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, where it was held that an affidavit grounding substituted service must descend to particulars sufficient to satisfy the Court that personal service is genuinely impracticable, and not merely inconvenient (emphasis mine). That principle has been repeatedly re-affirmed — most recently in the ELC decision in Mwachilangu (supra) and in the High Court’s treatment of Order 5 Rule 17 in Bilha Ngonyo Isaac v Kembi Gitura & 2 Others [2018] eKLR. The rule is a rule of evidence before it is a rule of procedure. 18.Applying that yardstick to the material before me, I find the Plaintiffs’ case substantial but not yet sufficient. That the Defendant is difficult to trace, I am prepared to accept. Eleven attempts by a licensed process server — seven in Mombasa, four in Nairobi — over a period of some four months are not the acts of a claimant who has slumbered. In that respect the Plaintiffs are on the right side of Shadrack Arap Baiywo and the line of authority following it. 19.But — and here I speak plainly, as the file demands — the affidavit of non-service is thin at three points. First, Mr. Outah gives totals but no particulars: no dates of the attempts, no addresses at which they were made, no landmarks, no persons encountered, no enquiries made of neighbours, no enquiries made of the local administration. In an application which will, if granted, be the foundation of a decree divesting title, that is a gap the Court cannot in good conscience overlook. Secondly, no recent official search of the title has been placed before the Court. The Defendant is said to be the registered proprietor of Plot No. 345/I/MN, CR No. 1767. Section 34 of the Land Registration Act, 2012 provides the machinery by which the address for service of a registered proprietor is disclosed; and section 96 imposes upon the proprietor a duty to keep it current. An address so registered is not a whisper on the wind — it is a statutory point of contact. To have failed to try it, or at least to have obtained and exhibited it, is a striking omission. Thirdly, the era in which service was confined to the physical door has been overtaken by events. Order 5 Rule 22B and the Judiciary’s successive practice directions since 2020 have recognised electronic service — WhatsApp, email, SMS. In a neighbourhood dispute between forty-one Plaintiffs and one Defendant over 3.16 acres of Bamburi coastal land, it strains credulity that not a single Plaintiff has a phone number, however old, for the man whose name sits on the title. Silence on that point is a silence I must break. 20.The correct posture of the Court in these circumstances is not to slam the door, but neither is it to open it without inquiry. It is to open the door a crack — to give the Plaintiffs a short, defined opportunity to cure the deficiencies, and, upon cure, to grant the order. That is the shape of the middle path this Court has taken in comparable adverse-possession matters, and it is the shape I take today. (b) The proportionate Mode of Substituted Service 21.If newspaper publication alone were the gold standard of substituted service, this file would be quickly disposed of. It is not. Publication in a daily newspaper is, as courts and commentators have long acknowledged, a legal fiction more than a factual notice. The learned Judge in Bilha Ngonyo Isaac (supra) put it well: substituted service is founded on a rebuttable presumption that the defendant will see the advertisement — a presumption whose strength varies with the quality of the newspaper, the location of the defendant, and the age of the reading habits of the class to which he belongs. A judge who orders publication and nothing more is content with a low presumption. A judge minded to protect an eventual decree from later attack does more. 22.The modern Kenyan practice, particularly in the ELC where property rights are directly in issue, is to layer the modes: publication of the notice, service at the address disclosed by the register, pinning at the office of the local administration and on the land itself, and, where possible, electronic service. Each mode redresses the weakness of the others; together they satisfy both the letter of Order 5 Rule 17 and the spirit of Articles 40 and 50 of the Constitution. That is the mode I shall direct in the disposition below. (c) Ancillary Directions and Preserving the Interim Injunction 23.Two ancillary matters call for mention. The first is the status of the interim injunction I granted on 18th June 2026 and the inter partes return date of 7th July 2026. Since the Plaintiffs have not, until this moment, been able to serve the Defendant, the inter partes hearing cannot fairly proceed. It must be re-fixed to a date safely beyond the completion of the substituted service now to be ordered. Meanwhile, the injunction — which was granted to preserve the res — must remain in force. To let it lapse for want of a hearing which has not been made possible by circumstances beyond the Plaintiffs’ control would be to punish the Plaintiffs for the Defendant’s absence. Equity would not tolerate it, and I do not. 24.The second matter concerns the shelf-life of the material on which any grant of substituted service must rest. An official search of a title is a photograph in time; the register may change tomorrow. A search that is stale may point to an address that is stale, and service upon a stale address is service upon nothing. I shall therefore direct that the official search to be exhibited must be current — not older than three (3) months from the date of this Ruling — so that this Court may rest its order on a photograph that is still true to life. That, in my respectful view, is what the punctilio of the Court’s conscience demands. A Note of Caution 25.Before I dispose of the Application, one caution. An order for substituted service is not a licence to careless prosecution. Once obtained, it must be executed with dispatch and with faithful accuracy — the wording of the notice, the correct file number, the correct name of the Defendant, the correct description of the suit land, and, above all, the strict observance of the timelines the Court sets. Any deviation will not be treated lightly. The Plaintiffs have crossed a difficult threshold; they must not stumble at the finish line. F. Disposition 26.For the reasons I have endeavoured to give, the Plaintiffs’ Application deserves to be answered — but conditionally, and with directions calibrated to hold the balance between the equity of the long occupier and the constitutional dignity of the registered proprietor. In exercise of the discretion conferred by Order 5 Rule 17 of the Civil Procedure Rules, 2010, and by section 3A of the Civil Procedure Act, Cap. 21, I make the following orders:a.The Notice of Motion dated 2nd July 2026 is allowed on the conditional terms that follow.b.The Plaintiffs shall, not later than thirty (30) days of the date of this Ruling, file and serve upon the Court a Supplementary Affidavit exhibiting:(i)A current official search of Land Parcel No. 345/I/MN, CR No. 1767 obtained under section 34 of the Land Registration Act, 2012, being a search not older than three (3) months from the date of this Ruling, and disclosing the registered address for service of the Defendant;(ii)Any known telephone number(s), email address(es), or other electronic contacts for the Defendant that the Plaintiffs, or any of them, hold or have held, together with a short account of what electronic attempts, if any, have been made to reach him thereon and with what outcome; and(iii)A further and better affidavit of non-service by the licensed process server, Paul Odhiambo Outah, setting out with particularity the dates, addresses and persons encountered on each of his eleven attempts in Mombasa and Nairobi, and the specific enquiries, if any, made of neighbours, the local administration or the Land Registry.c.Upon compliance with order (b) above to the satisfaction of the Court, the Plaintiffs are hereby granted leave to effect substituted service of the Originating Summons dated 20th January 2026, of the Notice of Motion dated 17th June 2026, of the Court Order of 18th June 2026, and of all annexures thereto, upon the Defendant Abdi Husein by way of the following layered modes, all of which shall be complied with:(i)Publication of an advertisement, in Form No. 5 of Appendix A to the Civil Procedure Rules with such variations as are necessary, in one daily newspaper of wide national circulation, namely, the Daily Nation or the Standard, once;(ii)Pinning of a copy of the pleadings and this Ruling upon a conspicuous point of the suit land at Bamburi, and at the office of the Assistant Chief, Bamburi Sub-Location, Kisauni Sub-County, the process server to file a certificate of pinning with photographs annexed thereto;(iii)Electronic service upon any telephone number(s) or email address(es) disclosed under order (b)(ii) above, by transmission of a legible copy of the Originating Summons, the Notice of Motion, the Court Order and the present Ruling, the fact of transmission and any delivery or read receipts to be exhibited to the Court by affidavit;(iv)Service by prepaid registered post upon the address for service of the Defendant disclosed by the official search exhibited under order (b)(i) above, the postal receipt to be exhibited by affidavit.d.Service upon the Defendant shall be deemed to have been effected fifteen (15) days after the last of the steps directed in order (c) above has been taken and duly evidenced by affidavit filed in Court.e.The Defendant shall have fifteen (15) days from the date of deemed service within which to enter appearance to the Originating Summons and to file and serve any response to the Notice of Motion dated 17th June 2026 and to the Originating Summons itself.f.The interim injunction granted on 18th June 2026 restraining the Defendant, his relatives, agents, employees, servants and any persons acting on his behalf from entering upon, invading, demolishing houses on, evicting the Plaintiffs from, or in any other manner dealing to the Plaintiffs’ detriment with Land Parcel No. 345/I/MN, CR No. 1767, measuring approximately 3.16 acres, situate at Bamburi in Mombasa County, shall continue in force pending the inter partes hearing of the Application on 28th October, 2026.g.The matter shall be mentioned before this Court on 28th October, 2026 for confirmation of compliance with orders (b) and (c) above and for fixing of a hearing date for the inter partes Motion.h.In the event that the Plaintiffs shall fail to comply with orders (b) and (c) within the timelines directed, and shall not have sought and obtained an extension for good cause shown, the leave to effect substituted service granted herein shall lapse of its own force, without further order of this Court, and the Originating Summons shall be listed for such further directions as the Court may then think fit.i.Costs of this Application shall be in the cause.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT MOMBASA THIS 16TH DAY OF JULY, 2026.……………………………………………HON. LADY JUSTICE B. AKELLO, OGWJUDGEIn the presence of:Gillian — Court AssistantKenga for the Plaintiffs/ApplicantsNo appearance for the Defendant