https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3588

Njue & 10 others v Njue & 9 others (Enviromental and Land Originating Summons E038 of 2021) [2026] KEELC 3588 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3588 (KLR) Republic of Kenya In the Environment and Land Court at Embu Enviromental and Land Originating Summons E038 of 2021 EC Cherono, J June 11, 2026 Between Philemon Njue & 10 others Applicant and Njeru Njue & 9 others Respondent Ruling 1.What is before me is the Notice of Motion Application dated 20th February, 2026 brought under Order 5 Rules 12 and 13 of the Civil Procedure Rules, 2010 and all enabling provisions of the law, seeking leave to serve the 2nd and 3rd Defendants/Respondents by way of substituted service. The Application is supported by the Affidavit of James Peterson Kinyua sworn on even date. 2.The Applicant, James Peterson Kinyua, the 6th Plaintiff/Applicant, acting with the authority of the remaining Plaintiffs/Applicants, deposes in his supporting affidavit that he has made all reasonable efforts to trace and effect personal service upon the 2nd and 3rd Defendants/Respondents but has been unable to do so. He avers that a licensed process server was procured and, together with him, they canvassed the entire suit land in a bid to trace the said Defendants but their area of residence remains unknown, as they were mere purchasers of portions of the suit land and do not reside thereon. 3.The Applicant further deposes that when the suit was originally instituted, the 1st Plaintiff did not personally effect service on the 2nd and 3rd Defendants, as evidenced by the Affidavit of Service sworn on 8th December, 2021. Notwithstanding, on 9th December, 2021 when the matter came before the court for directions, Advocate Kimanzi held brief for Mr. Victor Andande for, inter alia, the 1st, 2nd, 3rd, 5th and 9th Defendants as reflected in the court record. The said Firm of Victor Andande Advocates subsequently filed a Notice of Appointment dated 3rd April, 2022 indicating that it was thenceforth acting only for the 1st and 10th Defendants, thus leaving the 2nd and 3rd Defendants unrepresented. 4.Further, the Applicant annexed an Affidavit of Service dated 4th February, 2026 confirming that attempts at personal service have been unsuccessful. The Application is not opposed by the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 10th Defendants/Respondents. 5.The issue for determination is whether the Applicants have met the legal threshold for the grant of leave to serve the 2nd and 3rd Defendants/Respondents by way of substituted service. 6.Substituted service is provided for under Order 5 Rule 13 of the Civil Procedure Rules, 2010, which provides:“If it is proved that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order substituted or other service to be effected in such manner as it thinks fit.” 7.The import of this rule is that before the court exercises its discretion to order substituted service, the applicant must demonstrate two limbs: first, that diligent attempts at personal service have been made; and second, that those attempts have been unsuccessful either because the defendant is evading service or because for other good reason personal service cannot be effected. This position was affirmed by the Court of Appeal in Josephat Murimi Gacohi v Mary Wangari Kibiro [2018] eKLR, where the court held that an applicant must demonstrate to the satisfaction of the court that it has made sufficient efforts to personally serve the respondent before seeking the indulgence of substituted service. 8.Similarly, in Boniface Kariuki Kimani v David Njoroge & Another [2016] eKLR, the court observed that the purpose of the provision on substituted service is to ensure that proceedings are not frustrated by the inability to locate a party, provided that all reasonable efforts have first been exhausted to effect personal service. The court noted that it would be contrary to the interests of justice to allow a matter to stall merely on account of the non-traceability of a party where there is satisfactory evidence that service cannot reasonably be effected in the ordinary way. 9.The court in Nairobi Civil Case No. 293 of 2007, Equity Bank Limited v John Kinyanjui Njoroge (unreported), further held that in determining an application for substituted service the court must be satisfied that: (a) attempts at personal service have been made; (b) the defendant is aware of the proceedings or is deliberately evading service; and (c) the proposed mode of substituted service is reasonably likely to bring the proceedings to the attention of the defendant. 10.Casting the present facts against the foregoing legal standard, I am satisfied as follows. First, the Applicant engaged the services of a licensed process server and, together with the 6th Plaintiff/Applicant, personally canvassed the entire suit land in an effort to trace the 2nd and 3rd Defendants/Respondents. This is supported by the Affidavit of Service dated 4th February, 2026 filed in support of the Application. The efforts made are sufficiently diligent so as to satisfy the first limb. 11.Second, the evidence on record discloses that the 2nd and 3rd Defendants are mere purchasers of portions of the suit land and do not reside thereon, rendering their current addresses unknown. There is nothing to suggest that they have been actively participating in the proceedings since the withdrawal of their erstwhile counsel, Victor Andande Advocates. Their present whereabouts are unascertainable notwithstanding the best efforts of both the process server and the 6th Plaintiff/Applicant. 12.Third, it is noteworthy that when the matter first came before the court for directions on 9th December, 2021, an advocate held brief for, inter alia, the 2nd and 3rd Defendants, which is indicative that they were or ought to have been aware of the existence of these proceedings. The subsequent disengagement of their advocates, without substitution, cannot be allowed to prejudice the Applicants or to indefinitely stall the prosecution of the suit. The interests of justice demand that the proceedings be moved forward. As was held in Petition No. 2 of 2015, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the overriding objective principle requires the court to ensure that proceedings are conducted in a just, expeditious, and proportionate manner. 13.Furthermore, the Application is uncontested by the other Defendants/Respondents who have indicated that they do not oppose the orders sought. The court takes this into account as a circumstance supporting the grant of the orders. 14.As regards the mode of substituted service, I am minded that in order to bring the proceedings to the attention of the 2nd and 3rd Defendants/Respondents, service should be effected by publication in a newspaper of wide circulation within the Republic of Kenya, as this is the mode best calculated to reach parties whose whereabouts are unknown. Publication in at least one issue of a widely circulating daily newspaper shall suffice. A copy of the summons, the plaint, and all filed pleadings shall simultaneously be posted on the notice board of this court, together with the order for substituted service. 15.In the foregoing premises, I am satisfied that the Applicants have met the requisite legal threshold for the grant of substituted service. The Application dated 20th February, 2026 is accordingly allowed in terms of the following orders:i.Leave is hereby granted to the Plaintiffs/Applicants to serve the 2nd and 3rd Defendants/Respondents by way of substituted service.ii.Substituted service shall be effected by publication of a notice, together with the summons and a summary of the Plaint, in either the Daily Nation or the Standard newspapers. The said notice shall set out the nature of the suit, the orders sought, and shall call upon the 2nd and 3rd Defendants/Respondents to enter appearance within fifteen (15) days of publication.iii.Simultaneously with the newspaper publication, a copy of the summons, the Plaint, and all filed pleadings shall be posted on the notice board of this court.iv.Service shall be deemed to have been effected on the date of publication in either of the newspaper.v.The Plaintiffs/Applicants shall file and serve proof of publication within seven (7) days of publication.vi.Costs of this Application shall be in the cause.It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 11TH DAY OF JUNE, 2026HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;M/S Maina for the Plaintiff/ApplicantKinyua H/B for Kalamu Ndolo for the 4th-8th Defendants/Respondents.Mr. Muchangi Gichuki for the proposed Interested partiesM/S Chepkorir H/B for Kariuki for 1st & 10 RespondentsRuth C/A