[2005] KEHC 2613 (KLR)
The court found that the plaintiff had made diligent and unsuccessful efforts to serve the defendant, including by registered post, which was returned undelivered. The defendant had no known fixed place of business, and there was no reasonable expectation of tracing the defendant for personal service within the...
Source-derived case information.
- Citation
- [2005] KEHC 2613 (KLR)
- Parties
- Plaintiff: Total Kenya Limited; Defendant: Marsmam Concrete Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1593 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substituted Service
- Outcome
- Application allowed. Leave granted for substituted service by advertisement.
- Judges
- CM Njagi
- Legal Topics
- Substituted Service, Service of Summons, Leave of Court, Service by Advertisement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Total Kenya Limited
Plaintiff
Marsmam Concrete Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substituted Service
Legal Issues
- 1 Whether the plaintiff should be granted leave to serve summons on the defendant by way of advertisement in a daily newspaper.
- 2 Whether the defendant should be required to enter appearance within fifteen days of advertisement.
Ratio Decidendi
The court found that the plaintiff had made diligent and unsuccessful efforts to serve the defendant, including by registered post, which was returned undelivered. The defendant had no known fixed place of business, and there was no reasonable expectation of tracing the defendant for personal service within the validity period of the summons. In these circumstances, the court held that it was fair and proper to grant leave for substituted service by advertisement in a daily newspaper, as provided under Order V Rule 17 of the Civil Procedure Rules. The court further ordered that the defendant must file and enter appearance within fifteen days of the advertisement, and that the costs of the...
Court Disposition
Application allowed. Leave granted for substituted service by advertisement.
Orders
- The plaintiff/applicant is granted leave to serve the summons upon the defendant by way of advertisement in the Daily Nation Newspaper.
- The defendant shall file and enter appearance within fifteen days of the date of the advertisement.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT
MILIMANI COMMERCIAL COURTS, NAIROBI
HCCC NO. 1593 OF 2001
TOTAL KENYA LIMITED………………….………PLAINTIFF
V E R S U S
MARSMAM CONCRETE LIMITED…………..DEFENDANT
R U L I N G
By a chamber summons application dated and filed on 7th April, 2005, and expressed to be brought under O.V rule 17 of the Civil Procedure Rules, and S.3A of the Civil Procedure Act, the plaintiff/applicant seeks from the court the following orders-
1. THAT the Honourable Court be pleased to grant leave to the plaintiff/applicant to serve the summons in this suit upon the defendant by way of an advertisement in a daily newspaper.
2. THAT the Honourable Court be pleased to order that the defendant do file and enter appearance within fifteen (15) days of the date of the advertisement.
3. THAT the Honourable Court be pleased to make all such further orders and/or directions as it deems fit and just to grant.
4. THAT the costs of this application be in the cause.
The application is supported by the annexed affidavit of REBECCA MBITHI, advocate, and is premised on the following grounds-
(a) THAT the defendant has no fixed place of business known to the plaintiff.
(b) THAT as a result of the foregoing the plaintiff, through their advocates, have been unable to effect service on the defendant
(c) THAT there is no expectation that the defendant will be traced for purposes of service before the expiry of summons or at any time soon.
Canvassing the application before the court, Ms. Mbithi for the applicant traced the history of the suit from the date of filing to the date of extension of the summons on 31st January, 2005. In between, gallant efforts were made to serve the defendant, but they all went begging. An attempt was made to serve the defendant by way of registered post, and the letter was returned undelivered. Copies of the envelope duly addressed to the defendants and marked “RTS” and the certificate of registered postal article are attached to Ms. Mbithi’s supporting affidavit and marked “RM-1”. Consequent upon this state of affairs, I am satisfied for the above reasons that the summons herein cannot be served on the defendant in person. In the circumstances, I am further satisfied that it s fair and proper to order substituted service.
I accordingly make the following orders-
1. That the plaintiff/applicant be and is hereby granted leave to serve the summons in this suit upon the defendant by way of an advertisement in the Daily Nation Newspaper.
2. That the defendant do file and enter appearance within fifteen (15) days of the date of the advertisement.
3. That the costs of this application be in the cause.
Dated and delivered at Nairobi this 12th day of May 2005
L. NJAGI
JUDGE