[2014] KECA 87 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GATEMBU, J.A (IN CHAMBERS)

CIVIL APPEAL (APPLICATION) NO. 4 OF 2006

BETWEEN

WILLIAM NGARE ………………………………….. 1ST APPELLANT

DAVID MIANO ……………………………....………. 2ND APPELLANT

WINNIE ROSE WANGU ……………….................. 3RD APPELLANT

EPHARAIM GIKANDI …………………………......... 4TH APPELLANT

JANE GATHIGIA …………………………………… 5TH APPELLANT

AND

THE PUBLIC TRUSTEE ………………………… 1ST RESPONDENT

MARGARET WANGUI MURIUKI ……………… 2ND RESPONDENT

PETER WANDERI MURIUKI …………………… 3RD RESPONDENT

BEATRICE WAITHIRA ………………………….. 4TH RESPONDENT

MARY NYAWIRA ……………………………….. 5TH RESPONDENT

ELIZABETH WAITHENYA MURIUKI ………… 6TH RESPONDENT

BENSON WANDERI MURIUKI ……………… 7TH RESPONDENT

JOHN MANYO KAGUNYA …………………. 8TH RESPONDENT

DAVID GITHUI KAGUNYA …………………… 9TH RESPONDENT

MARGARET WAITHERA ……………………… 10TH RESPONDENT

MARY GATHONI MUGO …………………… 11TH RESPONDENT

(REPRESENTATIVE OF JACKSON MUGO WANDERI

(An application for leave to serve the eleventh respondent with the record of appeal, the supplementary record and the amended supplementary record of appeal by substituted service from the ruling and the order of the High Court of Kenya at Nairobi (Githinji, J.) dated 29th April, 2004

in

H.C SUCCESSION CAUSE NO. 1401 of 1990)

**************

RULING

By an application dated 20th May 2013 presented under Rule 17 of the Rules of this Court and under Order 5 Rule 17(1)(4) of the Civil Procedure Rules 2010 the applicants seek leave of this Court to serve the record of appeal, the supplementary record and the amended supplementary record of appeal in this matter upon the 11th respondent, Mary Gathoni Mugo, the representative of Jackson Mugo Wanderi, deceased by substituted service by way of advertisement in the local daily newspaper.

The application is supported by two affidavits. The first affidavit is labelled “affidavit of non-service” and was sworn by Samson N. Wambua, a process server, on 20th May 2013. David Miano, the 2nd applicant swore the second affidavit.

At the hearing of the application before me, learned counsel for the applicants Mr. G.N Thiongo referred to the affidavits and stated that the process server has explained that he made several attempts to serve process on the 11th respondent unsuccessfully; that he (the process server) interviewed neighbours of the 11th respondent as well the Chief and Assistant Chief and a church minister who informed the process server that the 11th respondent had left her home early in 2010 and had not been seen since; that efforts to trace the 11th respondent through her daughter and son was fruitless as they did not have information regarding their mother’s whereabouts; that she could not be traced at her last known place of work at the National Water Corporation in Nairobi; that the process server subsequently received information that the 11th respondent may have moved to Mombasa to do business there. According to Mr. Thiongo the applicants have made all efforts had been made to effect service on the 11th respondent unsuccessfully.

Opposing the application, Dr. Khaminwa learned counsel for 6th, 7th, 8th and 9th respondents who also held brief for Mr. Kimani Muhoro for the 1st, 2nd and 3rd respondents submitted that the decision that is the subject of the present appeal was delivered in 2004; that given the long history, this litigation should come to an end; that the orders sought are discretionary and the applicants have not established sufficient grounds why that discretion should be exercised in their favour and that there has been delay in prosecuting the application.

In his brief reply, Mr. Thiongo submitted that although the application was filed on 23rd May 2013 it has previously come up for hearing and was taken out of the hearing through no fault of the applicants; that an order was given by this Court on 3rd August 2010 for the 11th respondent to be served and that it is necessary that the orders sought be granted in order for service on the 11th respondent, who is a necessary party, to be effected.

I have considered the application, the supporting affidavits and the submissions by learned counsel. Rule 17(1) of the Rules of this Court requires that service of process to be effected personally unless the Court otherwise directs. In Ephraim Njugu Njeru v Justin Bedan Njoka Muturi & 2 others [2006] eKLR the Court stated that: “Substituted service is resorted to after all reasonable and proper efforts have been made to trace the respondent but in vain.” The decision of the Court in Filimina Afwadi Yalwala v Ronald Indimuli & Another Civil Appeal No.69 Of 1987 is to the same effect.

The process server, Samson N. Wambua, has in his affidavit set out in detail the efforts made to trace the 11th respondent in vain. He visited her home, where he had previously effected service and found it deserted; he made enquiries with her neighbours, the local Chief and Assistant Chief of the administrative location from where she hails, the church minister of the Church where she was known to worship and also contacted her children none of whom knew or disclosed her whereabouts. Despite the length of time this matter has taken in the courts and mindful that the 11th respondent was brought into the matter as a representative of her deceased husband who, based on the record, died during the pendency of the matter in court, this in my view is a proper case in which service by substituted service should be allowed not withstanding that a previous application to the same effect was dismissed by the court on grounds that there was no evidence presented to the Court at the time of the efforts made to effect service on the 11th respondent.

I accordingly allow the application in terms of prayer 1 of the application dated 20th May, 2013. The applicants are at liberty to serve the 11th respondent with the Record of Appeal and the Amended Supplementary Record of Appeal by substituted service by way of Advertisement in the local daily Newspaper.

Costs of the application shall abide the outcome of the appeal.

Dated and delivered at Nairobi this 19th day of September, 2014.

S. GATEMBU KAIRU

JUDGE OF APPEAL

I certifty that this is a

true copy of the original.

DEPUTY REGISTRAR