[2017] KEHC 6796 (KLR)
The court found that while the Plaintiff had made some attempts to serve the Defendant, the efforts were not particularly diligent. However, given the age of the suit and the need to move the matter forward, the court exercised its discretion to allow substituted service. The court emphasized that substituted...
Source-derived case information.
- Citation
- [2017] KEHC 6796 (KLR)
- Parties
- Applicant: Njoka Nyaga; Defendant: Mathew Munyi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- Application for substituted service allowed with conditions.
- Legal Topics
- Substituted Service, Service of Originating Summons, Adverse Possession, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoka Nyaga
Applicant
Mathew Munyi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the Plaintiff has demonstrated sufficient diligence in attempting personal service of the originating summons on the Defendant.
- 2 Whether the court should grant leave for substituted service in the circumstances of this case.
- 3 What mode of substituted service is appropriate.
Ratio Decidendi
The court found that while the Plaintiff had made some attempts to serve the Defendant, the efforts were not particularly diligent. However, given the age of the suit and the need to move the matter forward, the court exercised its discretion to allow substituted service. The court emphasized that substituted service is not to be granted lightly and only after reasonable efforts at personal service have failed. The Plaintiff was directed to serve the originating summons by advertisement in a national newspaper, with the Defendant given at least 30 days to enter appearance. Costs of the application were ordered to be in the cause.
Court Disposition
Application for substituted service allowed with conditions.
Orders
- Plaintiff to serve the originating summons by advertising at least once in the Daily Nation newspaper in circulation in Kenya.
- The notice of substituted service must allow the Defendant at least 30 days to enter appearance to the originating summons.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE E.L.C COURT OF KENYA AT EMBU
E.L.C. 19 OF 2017
FORMERLY KERUGOYA E.L.C NO. 107 OF 2014
NJOKA NYAGA……………………………………….PLAINTIFF/APPLICANT
VERSUS
MATHEW MUNYI………………………………………………….DEFENDANT
RULING
1. The Plaintiff in this matter Njoka Nyaga filed an Originating Summons dated 6th May 2013 seeking determination of three questions relating to L.R No. Embu/Kithunthiri/1295 which he claimed to have occupied for a period of 49 years. Two of the questions related to adverse possession while the third one related to costs.
2. It would appear that the originating summons was not served upon the Defendant soon enough and on or about 14th August 2013 the Plaintiff filed a Notice of Motion dated 13th August 2013 seeking for an order of substituted service of the Originating Summons upon the Defendant. The Plaintiff also sought to have the Defendant to bear the costs of the application.
3. The said Motion was listed before the Hon. Justice B.N. Olao on 9th July 2014 who was not satisfied that sufficient effort had been put into tracing and serving the Defendant. He declined to allow the said application and directed the Plaintiff to make other attempts at service before re-listing the application for substituted service.
4. After the said court appearance of 9th July 2014 nothing much appears to have taken place except one attempt on 19th July 2014 to serve the Defendant. There is an affidavit of service sworn by one G.M. Karuoro on 1st September 2014 to that effect. So except for the attempted service of 19th July 2014, there is no indication of further attempts to trace and serve the Defendant.
5. The grounds advanced in seeking substituted service are that the whereabouts of the Defendant are unknown and that there is need to avoid unnecessary delay in prosecuting the suit.
6. Under the provisions ofOrder 37 Rule 14 of the Civil Procedure Rules, service of an originating summons should be effected in the same manner as a summons to enter appearance under Order 5 of the Civil Procedure Rules. It is clear from the provisions of Order 5 that diligent efforts should be made to serve a Defendant personally or his authorized agent or adult member of his family residing with him before substituted service could be resorted to. The Plaintiff should make several attempts at service or several attempts in tracing the Defendant for service.
7. So has the Plaintiff in this case demonstrated such attempts in diligently tracing the Defendant for the purpose of service? From the material on record, some attempts were made but perhaps not so diligent in tracing the Defendant. The Plaintiff attempted service only twice, that is, in May and June 2013 before filing the application for substituted service in August 2013. Even after the court advised the Plaintiff to make more efforts in tracing and serving the Defendant, the Plaintiff only made one feeble attempt on 14th July 2014.
8. I am aware that the originating summons is nearly four years old since the date of filing hence there is need to serve the Defendant, fix the originating summons for directions and proceed to hear and determine the cause. In the circumstances of this case therefore, I am inclined, with some hesitation, to allow the application for substituted service dated 13th August 2013.
9. I have noted from the application that the Plaintiff has not specified the mode of substituted service which is sought to be employed. Nevertheless, the said application is allowed in the following terms:
a. The Plaintiff shall serve the originating summons dated 13th August 2013 by advertising at least once in the Daily Nation newspaper in circulation in the Republic of Kenya.
b. The Notice of substituted service to be advertised shall allow the Defendant at least 30 days to enter an appearance to the originating summons.
c. The costs of the application dated 13th August 2013 shall be in the cause.
Orders accordingly.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 16th day of MARCH 2017
In the presence of Mr Okwaro holding brief for Mr Njiru for the Plaintiff/Applicant.
Court clerk Njue
Y.M. ANGIMA
JUDGE
16. 03. 17