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Court of AppealAllowedNot stated in the judgment (application dated 20th May 2013)· [2014] KECA 87 (KLR)

William Ngare & 4 others v Public Trustee & 10 others [2014] KECA 87 (KLR)

Court of Appeal of Kenya
19 September 2014
SKS. Gatembu Kairu
853 words in judgment
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The bottom line

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The Court of Appeal allowed service of appeal documents by newspaper advertisement after detailed evidence showed all attempts to personally trace the respondent had failed.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi delivered by S. Gatembu Kairu, JA, on 19th September 2014, in a long-running matter in which the applicants sought leave to serve the record of appeal, supplementary record and amended supplementary record upon the 11th respondent, Mary Gathoni Mugo, by substituted service through advertisement in a local daily newspaper. The 11th respondent is the representative of Jackson Mugo Wanderi, deceased, and could not be traced. The application was supported by an affidavit of non-service sworn by a process server, Samson N. Wambua, detailing extensive but unsuccessful efforts: visits to her deserted home, enquiries of neighbours, the Chief and Assistant Chief, a church minister and her children, and checks at her last known place of work. Counsel for some respondents opposed the application, arguing the litigation stemming from a 2004 decision should end, that the orders were discretionary and the applicants had not justified the discretion, and that there was delay. Applying Rule 17 of the Court's Rules, which requires personal service unless the court otherwise directs, and its earlier decisions holding that substituted service follows failed reasonable efforts to trace a respondent, the court held this a proper case for substituted service, notwithstanding the earlier dismissal of a similar application for want of evidence. The application was allowed in terms of prayer 1, with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether substituted service was warranted

Holding

Substituted service by advertisement was granted because detailed evidence showed all reasonable efforts to trace the 11th respondent personally had been exhausted and failed.

Reasoning

The process server's affidavit detailed repeated attempts: visits to her deserted home, enquiries of neighbours, the Chief and Assistant Chief, a church minister and her children, all fruitless; she could not be traced at her workplace. Although a previous similar application was dismissed for lack of evidence, the present evidence justified the order. The court relied on its prior decisions that substituted service follows failed reasonable efforts.

p. 2

Legal principles established

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  • Personal service is the default requirement under Rule 17(1), and substituted service is granted only after all reasonable and proper efforts to trace the respondent have failed

Court orders

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  1. 1.The application dated 20th May 2013 is allowed in terms of prayer 1
  2. 2.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
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 17
  • Civil Procedure Rules 2010Order 5 Rule 17(1)(4)

Cases cited (2)

  • Ephraim Njugu Njeru v Justin Bedan Njoka Muturi & 2 others
    [2006] eKLR
  • Filimina Afwadi Yalwala v Ronald Indimuli & Another
    Civil Appeal No.69 Of 1987
On appeal from
Not stated
Jurisdiction invoked
Rule 17 of the Rules of this Court (Court of Appeal Rules) and Order 5 Rule 17(1)(4) of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "William Ngare & 4 others v Public Trustee & 10 others [2014] KECA 87 (KLR)", Case Analysis (2014). Not stated in the judgment (application dated 20th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/87/eng@2014-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.