https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4931

Mwambogo v Mwachimbi (Enviromental and Land Originating Summons E038 of 2025) [2026] KEELC 4931 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELC 4931 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Enviromental and Land Originating Summons E038 of 2025 BA Akello, J July 30, 2026 Between Ramadhan Chengo Mwambogo Plaintiff and Jackim Mwandoe Mwachimbi Defendant Ruling (Notice of Motion dated 7th May 2026) 1.Service of process is the courtesy which the law extends to a man before it lays its hand upon him. It is the knock upon the door before the entry; the summons before the sentence. Ordinarily that knock must be delivered into the defendant’s own hand. But the law is not naive. It knows that doors are shut, that men move on, and that a defendant is not always to be found where the plaintiff last saw him. Where the ordinary road is blocked, justice must be permitted to travel by another. That other road is substituted service. It is a road this court may open; but it must open it with its eyes wide, for at the far end of it stands a man who may never read the notice that binds him. The application 2.Before me is the Notice of Motion dated 7th May 2026, brought by the Plaintiff/Applicant, Ramadhan Chengo Mwambogo, 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 (Cap. 21), and Article 159 of the Constitution of Kenya, 2010. It is certified urgent by Mr. Kipkurui Ng’eno Birir, advocate, upon the single ground that the Defendant/Respondent cannot be located. The prayers are these, and I reproduce them as counsel framed them:(a)“THAT the Plaintiff/Applicant herein be granted leave to serve the Defendant/Respondent with all pleadings in this matter through substituted service by way of advertisement in the Daily Nation or the Standard Newspaper.”(b)“THAT the Defendant/Respondent be required to enter appearance within 15 days from the date of service.”(c)“THAT the cost of this application be provided for.” 3.The motion is grounded upon the averments that the suit was instituted by Originating Summons on 12th August 2025; that the process server was unable to locate the Defendant/Respondent for the purpose of personal service; that the Applicant does not know his whereabouts despite the exercise of due diligence; that the Respondent will suffer no prejudice; and that the orders sought serve the interest of justice. The evidence 4.The motion is supported by the affidavit of Mr. Kipkurui Ng’eno Birir sworn on 7th May 2026. He deposes that he has the conduct of this matter; that the suit was filed in August 2025 by the Applicant’s former advocates, Messrs. Tarus & Company Advocates; that he instructed Mr. George Otieno, a court process server, to effect personal service with the assistance of the Applicant himself; that he is informed by the process server that the Respondent cannot be traced; that the inability to trace him has stalled the progress of the suit; and that he therefore invites the court to exercise its discretion under Order 5 rule 17. 5.The engine of the application is the Affidavit of Non-Service of Mr. George Otieno, a licensed court process server, sworn on 7th May 2026 and annexed as exhibit “KNB-1”. He deposes that he received the Originating Summons, the supporting affidavit, the witness statement and the lists of witnesses and documents on 23rd April 2026; that, accompanied by the Applicant, he attempted to trace the Respondent’s residence and place of work by physically visiting his premises known as Plot 7703/I/MN and by asking the immediate neighbourhood as to his whereabouts; that further physical attempts were made at the premises on 25th April 2026 and 27th April 2026; that he also went to the Lands office in an effort to obtain the Respondent’s last known postal or physical address; and that all of this was in vain. 6.There is, in the nature of things, no reply. The Respondent has not been served, and that is the very complaint. The application therefore came before me ex parte, and I have considered it upon the papers. The question for determination 7.A single question falls for decision: has the Applicant laid a sufficient foundation for an order of substituted service; and, if he has, upon what terms should that service be ordered? The two limbs are not the same. The first is a question of proof. The second is a question of judgment, and it is the limb that courts too often pass over in silence. The governing law 8.The starting point is Order 5 rule 8(1) of the Civil Procedure Rules, 2010, which declares the rule from which all else is a departure:“Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.” 9.The exception is Order 5 rule 17, which I set out in full because its terms govern both the grant and the shape of the order:“(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 require.(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 Appendix A with such variations as the circumstances require.” 10.Three things are plain upon the face of that rule. First, the gateway is impossibility, not inconvenience: the court must be satisfied that the summons cannot be served in the ordinary way. Secondly, the manner of service is committed to the court — “in such other manner as the court thinks fit” — and not to the party. Thirdly, by sub-rule (3), the time for appearance is fixed by the court “as the case may require”, and not as the applicant may prefer. The rule confers a discretion, and discretion is not caprice. The judge who exercises it, said Cardozo in The Nature of the Judicial Process, “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” He chooses by principle, or he does not choose at all. 11.Since the amendments effected by the Civil Procedure (Amendment) Rules, 2020 (Legal Notice No. 22 of 2020), the court’s toolbox is no longer confined to the notice-board and the newspaper. Order 5 rules 22A, 22B and 22C now recognise service by courier, by electronic mail, and by mobile-enabled messaging applications upon a defendant’s last known and used telephone number. In Brian Njau & Company Advocates v Ounda & 4 others, Miscellaneous Application E021 of 2023, [2024] KEHC 14883 (KLR), Chigiti J. (as he then was) gave effect to service transmitted by WhatsApp, holding that Order 5 rule 22C “allows service of summons to be effected by use of mobile-enabled messaging Applications by sending summons to the Defendant’s last known and used telephone number.” A court exercising the rule 17 discretion in 2026 must take notice of the channels the law has since opened. The authorities 12.Substituted service is a last resort, never a first convenience. In Maina v Langat & 2 others, Civil Application E009 of 2023, [2024] KECA 395 (KLR), the Court of Appeal, per Mativo J.A., restated the settled position:“Counsel cited Wiliam Ngare vs. Public Trustee & 10 others [2015] eKLR, where this Court held that substituted service is resorted to after all reasonable and proper efforts have been made to trace the respondent but in vain.” 13.That application failed for want of proof: the learned Judge was “not satisfied that the applicant has made efforts to serve the respondents”. The lesson is that an affidavit of non-service is not a formality to be dressed in generalities. It is the evidence upon which the court acts, and it must speak in particulars — of dates, of places, of persons asked, and of answers received. 14.Why the court is so exacting appears from James Kanyiita Nderitu & another v Marios Philotas Ghikas & another, Civil Appeal No. 6 of 2015, [2016] KECA 470 (KLR), a decision of the Court of Appeal sitting at Mombasa:“In an irregular default judgment … judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right … The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” 15.That is the shadow which falls across every order of substituted service. Because such service is deemed “as effectual as if it had been made on the defendant personally”, the court is, in truth, deeming a man to know what he may not know. It is a fiction; and a fiction ought to be kept as close to the truth as the circumstances allow. The Supreme Court put the underlying principle in Sonko v County Assembly of Nairobi City & 11 others, Petition 11 (E008) of 2022, [2022] KESC 76 (KLR):“… the audi alteram partem rule requires that those who are likely to be directly affected by the outcome of a decision should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet.” 16.On the other side of the scale stands the mischief of a suit that can never move. The Supreme Court has warned in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others, Petitions 5, 3 & 4 of 2013 (Consolidated), [2013] KESC 6 (KLR), at paragraph 218, that:“The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties.”Article 159(2)(d) does not abolish service. It forbids the court from allowing an untraceable defendant to become a standing veto upon a plaintiff’s access to justice. A suit filed in August 2025 cannot be left to sleep for ever because the man against whom it is brought has not been found. 17.This court has trodden this ground before. In Musyoka & 2 others v Munguti & 2 others, Environment & Land Case 60 of 2019, [2023] KEELC 473 (KLR), Murigi J. held:“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 … Leave is granted to the Plaintiffs/Applicants to effect service of the pleadings herein upon the 1st Defendant by means of substituted service in the Daily Nation newspaper on a working day within 21 days from today. The 1st Defendant will be expected to enter appearance within 21 days of the said advertisement.” 18.And in Tek v Kibet, [2024] KEELC 6478 (KLR), Nyagaka J. stated the principle with an economy I gratefully adopt: “one ought to start with an attempt to serve in person before taking the step of substituted service”; for “Service of process is an integral part of the constitutional right to fair hearing and the rules of natural justice that every party to a dispute ought to be given an opportunity to be heard.” In Ngome & 4 others v Macdonald & 55 others, Environment & Land Case 53 of 2018, [2022] KEELC 14719 (KLR), the court at Malindi upheld substituted service of an Originating Summons in an adverse possession claim over coastal land, and deemed the summons properly served. Analysis and determination 19.I turn to the papers before me. The attempts deposed to by Mr. George Otieno were made over a period of three days, on 23rd, 25th and 27th April 2026. Counted as a tally of visits, that is not lavish. But the test is not arithmetical. The question is whether the efforts were genuine, and whether they were directed to the places where a defendant might reasonably be expected to be found. Here they were. The process server went to the suit premises, Plot 7703/I/MN, in the company of the Applicant, who knows both the Respondent and the locality; he made inquiry of the immediate neighbourhood; he returned twice; and, not content with the ground, he went to the Lands office to look for an address upon the record. That is a search of the land, of the neighbours, and of the register, deposed to on oath by a licensed officer of the court in particulars of date and place, and uncontradicted. It meets the standard of “all reasonable and proper efforts” demanded by Maina v Langat. 20.I am therefore satisfied, within the meaning of Order 5 rule 17(1), that the Originating Summons cannot be served in accordance with the preceding rules of that Order. The gateway is passed. The application is merited in principle. 21.It does not follow that I must grant it in the form in which it is asked. Prayer (a) seeks a single advertisement in one of two newspapers, and nothing more. I am not persuaded that this is enough. Let us be candid about what newspaper service is. It is a lawful fiction of notice. It satisfies the rule; it seldom reaches the man. A notice in the classified columns of a Nairobi daily is a poor messenger to a defendant in Mombasa. If a notice is to be published at all, it must be published where a man might look for it and at a size at which he might read it. Buried in the classifieds, or set beside the obituaries, it is notice to nobody — an advertisement addressed to the file rather than to the defendant. Where the rules now furnish the court with electronic and postal channels which cost the Applicant little and may reach the Respondent much, an order confined to the newspaper does the least the rule permits rather than the most that justice requires. The measure of substituted service is not whether the order is convenient to the plaintiff; it is whether it is reasonably calculated to bring the suit to the notice of the defendant. I shall therefore lay the order in layers. 22.Nor can prayer (b) stand as framed. Fifteen days is the period the Applicant prefers; but by Order 5 rule 17(3) the period is mine to fix “as the case may require”. A defendant served in his own hand knows on the day he is served. A defendant served through a newspaper must first chance upon the page, then read it, then understand that it concerns him, then find an advocate, and only then enter appearance. The one is a day; the other is a journey. Twenty-one days is the period this court allowed in Musyoka v Munguti, and twenty-one days is the period I consider the justice of this case requires. It is a small indulgence to a man who is not here to ask for it. 23.Two further matters require attention, and I raise them of the court’s own motion. First, this is an Originating Summons concerning land. Where a claim touches a parcel, the register is the natural custodian of the owner’s particulars, and I shall require that an official search be conducted within 14 days of this Ruling and filed, so that the court may see for itself what the register discloses. Secondly, the Originating Summons was filed on 12th August 2025. By Order 5 rule 2(1), summons is valid in the first instance for twelve months from issue. So that the compliance directed below is not overtaken by the expiry of that period, I shall extend the validity of the summons of the court’s own motion under Order 5 rule 2(2), it being plainly just to do so. Disposition 24.For the reasons I have given, the Notice of Motion dated 7th May 2026 is allowed, but upon terms of the court’s own framing. I make the following orders:(a)Leave is granted to the Plaintiff/Applicant to effect service of the Originating Summons dated 12th August 2025, together with the supporting affidavit, the witness statement and the lists of witnesses and documents, upon the Defendant/Respondent, Jackim Mwandoe Mwachimbi, by way of substituted service.(b)Such service shall be effected, in the first place, by at least ONE advertisement placed in the Daily Nation or The Standard newspaper, in a weekday edition, upon a reasonably conspicuous page and in a size not smaller than twelve (12) centimetres by fifteen (15) centimetres, in Form No. 5 of Appendix A to the Civil Procedure Rules with such variations as the circumstances require. The advertisement shall NOT be placed in the classifieds section, nor in the obituaries or death announcements pages.(c)In addition to, and not in substitution for, the advertisement, the Plaintiff/Applicant shall take each of the following steps that is available to him, namely —(i)transmission of the pleadings by electronic mail to any known email address of the Defendant/Respondent, if any;(ii)transmission by short message service and by WhatsApp to any last known and used telephone number of the Defendant/Respondent, pursuant to Order 5 rule 22C, if any; and(iii)dispatch by registered post to any last known postal address of the Defendant/Respondent.(d)A copy of the pleadings, together with a copy of this ruling, shall be affixed upon a conspicuous part of the premises known as Plot 7703/I/MN, upon the notice board of this court, and a further copy shall be lodged with the office of the Assistant Chief of the area in which the said premises lie.(e)The Plaintiff/Applicant shall, within twenty-one (21) days of the date hereof, conduct and file an official search in respect of the suit property; and if the search or any other official record discloses an address for the Defendant/Respondent, service shall additionally be effected at that address.(f)All the steps directed in orders (b), (c), (d) and (e) shall be completed within thirty (30) days of the date of this ruling.(g)The Plaintiff/Applicant shall, within fourteen (14) days of the last of the said steps, file an affidavit of compliance exhibiting the newspaper cutting bearing its date, proof of transmission of the electronic messages, the registered post receipt, a certificate of affixing, and the official search; or, in respect of any step not taken, an explanation on oath as to why it was not available.(h)The Defendant/Respondent shall enter appearance and file his response to the Originating Summons within twenty-one (21) days of the date of publication of the advertisement.(i)The validity of the summons issued herein is extended for a period of ninety (90) days from the date of this ruling.(j)Upon compliance being duly demonstrated, service shall be deemed good and sufficient service upon the Defendant/Respondent for all purposes of this suit.(k)This matter shall be mentioned on 2nd November, 2026, to confirm compliance and to take further directions.(l)The costs of this application shall be costs in the cause.The road to this Defendant is opened; but it is opened wide enough to be seen, and no wider than the law allows.It is so ordered. THIS RULING IS DATED, SIGNED AND DELIVERED VIRTUALLY VIDE MICROSOFT TEAMS AT MOMBASA THIS 30TH DAY OF JULY, 2026.______________________________B.A. AKELLO, OGWJUDGEIn the presence of:Mr. Birir — for the Plaintiff/ApplicantN/A — for the Defendant/Respondent (not served)Gillian – Court Assistant