[2007] KEHC 191 (KLR)
The court found that the process server's affidavit did not provide sufficient detail regarding the efforts made to serve the 3rd respondent. The process server merely stated he was given documents to serve but failed to locate the 3rd respondent, without specifying dates, times, or places of attempted service. The...
Source-derived case information.
- Citation
- [2007] KEHC 191 (KLR)
- Parties
- Applicant: Salim Ouma Onditi; Respondent: Minister for Local Government & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 422 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- Application for substituted service declined. Directions to be taken for hearing of the Notice of Motion. Costs in the cause.
- Judges
- RPV Wendoh
- Legal Topics
- Substituted Service, Service of Process, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Ouma Onditi
Applicant
Minister for Local Government & Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the applicant has demonstrated sufficient attempts to serve the 3rd respondent personally to justify an order for substituted service.
- 2 Whether substituted service should be granted in the circumstances of this case.
Ratio Decidendi
The court found that the process server's affidavit did not provide sufficient detail regarding the efforts made to serve the 3rd respondent. The process server merely stated he was given documents to serve but failed to locate the 3rd respondent, without specifying dates, times, or places of attempted service. The court held that this was not a sufficient attempt to justify substituted service. However, since the 3rd respondent had previously been served with the Notice of Motion and failed to respond, the court found no necessity for substituted service and declined the application. The court directed that further directions be taken regarding the hearing of the Notice of Motion.
Court Disposition
Application for substituted service declined. Directions to be taken for hearing of the Notice of Motion. Costs in the cause.
Orders
- Application for substituted service is declined.
- Further directions to be taken as to hearing of the Notice of Motion.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
Misc Civ Appli 422 of 2006
SALIM OUMA ONDITI………………………………..………….APPLICANT
Versus
MINISTER FOR LOCAL GOVERNMENT & OTHERS………RESPONDENT
RULING
By Chamber Summons dated 12th June 2007, the Applicant seeks leave of this court to effect service of the Notice of Motion dated 3rd August 2006, by way of substituted service in one of the Local daily newspapers that is, the Daily Nation or the Standard. That the 3rd Respondent do respond to the Applicant’s Judicial Review Application and the court do fix the Notice of Motion for hearing.
The Application is supported by grounds found in the body of the Application and an Affidavit sworn by Thomas Nduku, a process server.
It is the Applicants submission that the 3rd Respondent was served with the Notice of Motion but has failed to file any papers and after the court gave directions with regard to the hearing, the Applicant has been unable to serve the 3rd Respondent.
The process server depones that the 3rd Respondent was served by Mr. Benard Okeyo and an Affidavit dated 31st August 2006 was filed in court on 7th September 1986. That thereafter, the process server received several documents from the Applicants ie skeleton arguments filed on 28th March 2007, Notice of Motion of 22nd March 2006, 18th April 2006, 7th May 2006 and 25th May 2007 to serve on the 3rd Respondent but has not been able to effect service nor trace the 3rd Respondent in his offices at the City Council of Nairobi.
That is why this order of substituted service is sought. Counsel for the Respondents Mrs. Chesire and Mr. Omotii had no objection to the Application.
I have looked at the Affidavit of the process server, Benard Okoyo and it seems the 3rd Respondent was served with the Notice of Motion but never responded by filing his papers. The court has made subsequent orders in regard to preparation of filing of the skeleton arguments with a view to setting the matter shown for hearing but none of these have been served in the 3rd Respondent. The process server Nduku states that his efforts to serve the 3rd Respondent have been futile but he has not shown the efforts made to serve the 3rd Respondent. He generally states that he was given several documents to serve but failed to get the 3rd Respondent. That is not sufficient attempt. The process server should have specified the dates he attempted to serve, the place and time. However, since it seems that the 3rd Respondent was served with the Notice of Motion, it was his duty to appear and take part in the proceedings but it seems he is not interested. I find no need to serve the 3rd Respondent by substituted service and will decline to grant that Application. However, I will direct that further direction be taken as to hearing of the Notice of Motion.
Costs to be in the cause.
Dated and delivered this 15th day of October 2007.
R.P.V. WENDOH
JUDGE