[2013] KEHC 4081 (KLR)
The court found that the plaintiffs had made sufficient and reasonable efforts to serve the 2nd and 3rd defendants personally, as evidenced by the supporting affidavit, correspondence, and process server's affidavit. Given the failure of personal service and the steps taken to trace the defendants, the court...
Source-derived case information.
- Citation
- [2013] KEHC 4081 (KLR)
- Parties
- Plaintiff: Ruth Anyango Odhiambo; Plaintiff: Kennedy Aduol (Suing as personal representative of the estate of John Odhiambo Othim); Defendant: Shinsakura Enterprises Limited; Defendant: Stephen Munga Kariuki; Defendant: Charles Mukhana Wanyama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 518 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Validation and Substituted Service of Summons
- Outcome
- Application allowed in its entirety.
- Judges
- REA Ougo
- Legal Topics
- Service of Process, Substituted Service, Validation of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Anyango Odhiambo
Plaintiff
Kennedy Aduol (Suing as personal representative of the estate of John Odhiambo Othim)
Plaintiff
Shinsakura Enterprises Limited
Defendant
Stephen Munga Kariuki
Defendant
Charles Mukhana Wanyama
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Validation and Substituted Service of Summons
Legal Issues
- 1 Whether the court should validate the original summons issued against the 2nd and 3rd defendants.
- 2 Whether the court should allow substituted service of summons on the 2nd and 3rd defendants via advertisement in a local daily newspaper.
- 3 Whether the defendants should bear the costs of the application.
Ratio Decidendi
The court found that the plaintiffs had made sufficient and reasonable efforts to serve the 2nd and 3rd defendants personally, as evidenced by the supporting affidavit, correspondence, and process server's affidavit. Given the failure of personal service and the steps taken to trace the defendants, the court exercised its discretion to validate the original summons and permit substituted service by advertisement in a local daily newspaper. The court also awarded costs of the application to the plaintiffs, finding the application meritorious and justified under the Civil Procedure Rules and Act.
Court Disposition
Application allowed in its entirety.
Orders
- The original summons issued in this matter as against the 2nd and 3rd defendants are validated.
- Service of the summons to enter appearance on the 2nd and 3rd defendants is permitted by way of substituted service through advertisement in any one of the local daily newspapers.
Full Case Text
Judgment text and source record
28 paragraphs
RUTH ANYANGO ODHIAMBO.....................................1ST PLAINTIFF
KENNEDY ADUOL........................................................2ND PLAINTIFF
(Suing as personal representative of
the estate of John Odhiambo Othim)
VERSUS
SHINSAKURA ENTERPRISES LIMITED......................1ST DEFENDANT
STEPHEN MUNGA KARIUKI.........................................2ND DEFENDANT
CHARLES MUKHANA WANYAMA.............................3RD DEFENDANT
RULING
Before me is a Notice of Motion dated the 30/7/12. the application is brought under order 5 Rule 2 (2) (5), rule 17 (1), (2), (3), 4 of the Civil Procedure Rule and section 3A of the Civil Procedure Act. The plaintiffs/applicants are seeking the following orders;
1. That the honourable Court be pleased to validate the original summons issued in this matter as against the 2nd and 3rd defendants,
2. That subsequently the honourable court be pleased to allow the service of the summons to enter appearance on the 2nd and 3rd defendants by way of substituted service through an advertisement in any one of the local daily newspaper.
3. That the defendants/respondents be condemned to pay the costs of this application.
The application is grounded on 2 grounds that the plaintiffs/applicants have sought to serve the 2nd and 3rd defendants with the summons and enter appearance issued herein since the institution of the suit without success despite several attempts. That the plaintiffs/affidavit therefore seek to serve the 2nd and 3rd defendants by way of substituted service.
The application is supported by the affidavit of Mr. Sumba Oder he explains the efforts they have made to serve the 2nd and 3rd defendants at his paragraphs 2, 3, 4, 5 and 6 his averments. He has attached a letter to show they wrote to the 2nd and 3rd defendant, the process server’s affidavit of service to show the efforts made to serve the 2nd and 3rd and a letter on the investigations done to trace the defendants. The application has merit. I therefore grant prayer 1,2 and 3 of the application dated the 30/7/12.
Orders accordingly.
Dated, signed and delivered this 19th day of April 2013.
R. OUGO
JUDGE
In the presence of:
....................……...................................................Plaintiffs/Applicants
......................................................................1st , 2nd and 3rd Defendants
……………..…................................…................................Court Clerk
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