[2019] KEHC 6458 (KLR)
The court found that the plaintiff had made credible and sufficient efforts to serve the defendants personally but was unable to trace them. The affidavit evidence was accepted as credible, and there was no opposition to the application. The court was satisfied that the requirements for substituted service had been...
Source-derived case information.
- Citation
- [2019] KEHC 6458 (KLR)
- Parties
- Plaintiff: Mboe Sambu Resources Ltd; Defendant: Stephen Samwel Paino; Defendant: Francis Strange
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Civil Case 23 of 2018
- Procedural Posture
- Civil Case / Interlocutory Application for Substituted Service
- Outcome
- Application granted for substituted service by advertisement. No order as to costs.
- Legal Topics
- Substituted Service, Service of Summons, Ex Parte Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mboe Sambu Resources Ltd
Plaintiff
Stephen Samwel Paino
Defendant
Francis Strange
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Substituted Service
Legal Issues
- 1 Whether the plaintiff should be granted leave to serve summons upon the defendants by way of advertisement in a newspaper of national circulation.
- 2 Whether the plaintiff has demonstrated sufficient efforts to serve the defendants personally.
Ratio Decidendi
The court found that the plaintiff had made credible and sufficient efforts to serve the defendants personally but was unable to trace them. The affidavit evidence was accepted as credible, and there was no opposition to the application. The court was satisfied that the requirements for substituted service had been met under the Civil Procedure Rules. Consequently, the court granted leave for the plaintiff to serve the summons upon the defendants by way of advertisement in a newspaper of national circulation.
Court Disposition
Application granted for substituted service by advertisement. No order as to costs.
Orders
- Leave is granted to the plaintiff to serve summons upon the defendants by way of advertisement in the Daily Nation newspaper or any other newspaper of national circulation.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CIVIL CASE NO. 23 OF 2018
MBOE SAMBU RESOURCES LTD....................................PLAINTIFF
VERSUS
STEPHEN SAMWEL PAINO...................................1ST DEFENDANT
FRANCIS STRANGE................................................2ND DEFENDANT
RULING
1. Pursuant to the provisions of Order 17 (1) (4) of the 2010 Civil Procedure Rules, the plaintiff through its ex partenotice of motion, seeks leave of the court to serve summons upon the defendant by way of advertisement in the Daily Nation newspaper or any other newspaper of national circulation. It also seeks an order to be made for the provision of costs.
2. The application is supported by the four grounds set out on the face notice of the ex parte notice of motion. The following are the major grounds. Summons were issued by this court on 8th November 2018 but they have not been served to date. All efforts to find out the location of the defendants in order to serve them with the summons have proved futile. The defendants while in hiding filed a judicial review application being Kisii High Court JR No. 1 of 2018 to stop their prosecution, but the application was dismissed.
3. Furthermore, the application is supported by a nine paragraphs supporting affidavit. He has averred to the following major matters. The plaintiff sued the defendants in respect of a liquidated sum of shs 50,000,000, being the cost of its damaged mining equipments and items that were stolen. Summons to serve the defendants were issued on 8th November 2018 by this court. The plaintiff has not been able to serve the defendants as it has not been able to trace them. The other matters are a replica of the grounds in support of the ex parte motion.
4. The application is unopposed.
5. I find the affidavit evidence of the plaintiff to be credible. I further find that it has not been possible to serve the defendants as it has not traced them.
6. I therefore grant the plaintiff’s application in terms of prayer No 1 of its ex parte notice of motion.
7. There will be no order as to costs.
Ruling dated, signed and delivered in open at Narok this 20th day of June 2019 in the presence of Mr. Langat holding brief for Mr. Njiru for the plaintiff.
J. M. Bwonwonga
Judge
20/6/2019