[2019] KEELC 1330 (KLR)
The court found that the objection to substituted service by advertisement was baseless, as no evidence was provided to show that the 2nd defendant was within a foreign jurisdiction. The 1st defendant's counsel had not objected at the time the application for substituted service was made or granted, and had even...
Source-derived case information.
- Citation
- [2019] KEELC 1330 (KLR)
- Parties
- Plaintiff: Oliver Gachuhu; Defendant: Peter Wamwaki Gichimu; Defendant: Peter Gachuhu Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 157 of 2016
- Procedural Posture
- Land Case / Ruling on Objection to Substituted Service
- Outcome
- Objection dismissed; suit to proceed to hearing.
- Judges
- FM Njoroge
- Legal Topics
- Substituted Service, Service of Process, Objection to Service, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oliver Gachuhu
Plaintiff
Peter Wamwaki Gichimu
Defendant
Peter Gachuhu Njoroge
Defendant
Procedural Posture
Land Case / Ruling on Objection to Substituted Service
Legal Issues
- 1 Whether the objection to substituted service by advertisement was valid.
- 2 Whether there was evidence that the 2nd defendant was within a foreign jurisdiction.
Ratio Decidendi
The court found that the objection to substituted service by advertisement was baseless, as no evidence was provided to show that the 2nd defendant was within a foreign jurisdiction. The 1st defendant's counsel had not objected at the time the application for substituted service was made or granted, and had even indicated that the 2nd defendant was available. The court held that substituted service through advertisement was proper in the circumstances and dismissed the objection, directing that the suit proceed to hearing.
Court Disposition
Objection dismissed; suit to proceed to hearing.
Orders
- The objection to substituted service by advertisement is dismissed.
- The suit is set down for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 157 OF 2016 (O.S)
OLIVER GACHUHU.................................................PLAINTIFF
VERSUS
PETER WAMWAKI GICHIMU....................1ST DEFENDANT
PETER GACHUHU NJOROGE...................2ND DEFENDANT
RULING
1. The plaintiff’s application dated 15/4/2019brought underSection 1A, 1B and3A of the Civil Procedure ActandOrder 5, Rule 17of theCivil Procedure Rules 2010seeking leave to serve summons and plaint upon the 2nd defendant/respondent by way of substituted service was granted on 30/4/2019 and the 2nd defendant was ordered to file defence within 14 days of such advertisement.
2. The suit came up for further directions on 25/7/2019 when Ms. Arunga counsel for the 1st defendant orally opposed the advertisement through local newspaper on the basis that the service should have been of the nature employed in respect of a person within a foreign jurisdiction.
3. I have noted that on the 9/4/2019 when the court directed the plaintiff to file an application for substituted service the 1st defendant was represented and no objection was raised. No objection was also raised on 30/4/2019 when the court granted that application. Indeed Ms. Arunga for the 1st defendant is on record has having stated as follows:
“The 2nd defendant is available.”
4. With respect I do not seem to understand the basis of Ms. Arunga’s oral objection. No evidence has been placed before court that the 2nd defendant is within a foreign jurisdiction. I therefore dismiss the objection and order that this suit be set for down for hearing.
Dated, signed and delivered at Kitale on this 30thday of September, 2019.
MWANGI NJOROGE
JUDGE
30/9/2019
Coram:
Before: Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Ms. Arunga for the Defendant
Plaintiff in person present
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/9/2019