[2017] KEELC 2329 (KLR)
The court found that the plaintiffs had demonstrated sufficient efforts to serve the defendants personally, as evidenced by the process server's affidavit and attempts to trace the defendants at their last known residence. However, the court was not satisfied that service by registered mail to a postal address last...
Source-derived case information.
- Citation
- [2017] KEELC 2329 (KLR)
- Parties
- Plaintiff: Ramadhan Saidi; Plaintiff: Hamadi Iddi; Plaintiff: Pauline Ogenga; Plaintiff: Benedict Mwakio; Plaintiff: Thomsa Maku Baru; Plaintiff: Syslvester Joshua; Defendant: Sudi Hafidhi; Defendant: Rukia Binti Soud
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 325 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- application allowed with amendment
- Judges
- CK Yano
- Legal Topics
- Substituted Service, Service of Process, Affidavit of Service, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramadhan Saidi
Plaintiff
Hamadi Iddi
Plaintiff
Pauline Ogenga
Plaintiff
Benedict Mwakio
Plaintiff
Thomsa Maku Baru
Plaintiff
Syslvester Joshua
Plaintiff
Sudi Hafidhi
Defendant
Rukia Binti Soud
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the plaintiffs have demonstrated sufficient efforts to serve the defendants personally.
- 2 Whether the court should grant leave for substituted service and the appropriate mode for such service.
Ratio Decidendi
The court found that the plaintiffs had demonstrated sufficient efforts to serve the defendants personally, as evidenced by the process server's affidavit and attempts to trace the defendants at their last known residence. However, the court was not satisfied that service by registered mail to a postal address last used over 25 years ago would constitute proper service. Instead, the court held that advertisement in a daily newspaper with nationwide circulation was the most reasonable and proper mode of substituted service in the circumstances. The application was therefore allowed, but with the amendment that service be effected by newspaper advertisement rather than by registered mail.
Court Disposition
application allowed with amendment
Orders
- Leave is granted for substituted service of summons upon the defendants by advertisement in a newspaper with nationwide circulation.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC325 OF 2016
1. RAMADHAN SAIDI
2. HAMADI IDDI
3. PAULINE OGENGA
4. BENEDICT MWAKIO
5. THOMSA MAKU BARU
6. SYSLVESTER JOSHUA...............................PLANTIIFFS
VERSUS
SUDI HAFIDHI
RUKIA BINTI SOUD.......................................DEFENDANTS
RULING
1. By a Notice of Motion dated 26th May, 2017, brought under the provisions of Sections 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act, Order 5 Rule 17 of the Civil Procedure Rules, and Articles 22 and 50 of the Constitution, the plaintiffs seek leave to serve the defendants herein by way of registered mail through their last known address of post office box number 87214, Mombasa.
2. The application is based on the grounds that all efforts have been made to serve the defendants personally but have been unsuccessful and that it is only fair and just in the circumstances that the application be allowed. The application is supported by the affidavit of Nyange Sharia counsel for the plaintiffs sworn on 26th May 2017.
3. In the said affidavit, Mr. Nyange Sharia deposes that he was instructed by the plaintiffs to file that suit together with an application for an injunction. He deposes that he instructed one Timothy Kitsao a Process Server to effect service upon the defendants and the Process Server managed to serve the 1st defendant only. He further deposes that the Process Server made numerous attempts in tracing the 2nd defendant but all efforts have been unsuccessful. A copy of the process server’s affidavit of service is attached to the supporting affidavit. In his affidavit, the Process Server has deponed that in the company of the 1stplaintiff; he went to the 2nd defendant’s last known place of residence at Changamwe within Mombasa County and made enquiries from the tenants who informed him that they were not aware of the place the 2nd defendant stays currently. He depones that he has been tracing the physical location of the 2nd defendant with the help of the plaintiffs but he has been unsuccessful. The applicants have also attached a copy of a letter dated 14th May 1992 from the Estate of Sood Bin Ali Bashir, P. O. Box 87214 which refers to plot No.1997 and signed by the 2nd defendant and another .plot No.1997 is one of the suit properties herein.
4. I have considered the application herein and the affidavit in support. order 5 Rule 17 (1) of the Civil Procedure Rules provides that:
“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 a gain, or in such other manner as the court thinks fit.”
5. The plaintiffs have demonstrated and shown the efforts made to effect service upon the 2nd defendant. A copy of a letter from the 2nd defendant containing their last known postal address has been attached and is in reference to part of the suit property and dated 14th May 1992. From the material placed before me, I am satisfied that personal service has been unsuccessful for good reasons. I note however that the letter attached was written in 1992, a period of over 25 years ago. I am not convinced that service by way of postal address upon the defendants herein using a postal address that was last used over 25 years ago will constitute proper service. In my view the only reasonable and proper mode of service in the circumstances would be by advertisement in one of the daily newspapers with a nationwide circulation.
6. As a result of the foregoing, the application is allowed but amended to the effect that service shall be by advertisement in one of the newspapers with nationwide circulation.
7. Costs of this application shall be in the cause.
Dated, delivered and signed at Mombasa this 10th day of July, 2017.
C. YANO
JUDGE