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ELCAllowedChuka ELC Case No. 01 of 2019· [2019] KEELC 3967 (KLR)
James Mutugi Mwithi v Dedan Mugo Mwangi (Environment & Land Case 1 of 2019) [2019] KEELC 3967 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is an interlocutory ruling of the Environment and Land Court at Chuka in an adverse-possession suit brought by Originating Summons under Sections 7, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 8 of the Civil Procedure Rules, concerning land parcel South Tharaka/Tunyai 'A'/390. The plaintiff, James Mutugi Mwithi, applied by notice of motion dated 26th February 2019 for leave to serve the Originating Summons on the defendant, Dedan Mugo Mwangi, by advertising it once in the Daily Nation Newspaper, with costs of the application to be costs in the cause. The application was supported by the plaintiff's affidavit sworn on 21st February 2019, which explained that the suit had been filed on 22nd January 2019 and that all efforts to trace the defendant for personal service had been fruitless. Counsel for the plaintiff, Mr. Kaai Mugambi, urged that substituted service was necessary because the defendant could not be traced, and that service was a prerequisite to the hearing of the suit. P.M. Njoroge J found the application merited and allowed it. The court ordered substituted service through the Daily Nation Newspaper to be executed within 30 days, directed that the costs of the application be costs in the cause, and gave directions for 10th June 2019. The ruling disposed only of the mode of service; the substantive adverse-possession claim remains pending.
Key legal issues
#01
Substituted service of an Originating Summons on a defendant who cannot be traced
Holding
The application for leave to serve by advertisement in the Daily Nation Newspaper was allowed, the plaintiff having shown that efforts to trace the defendant for personal service were fruitless
Reasoning
The plaintiff's advocate informed the court that despite efforts since filing the suit on 22nd January 2019, the defendant could not be traced for personal service. Since service of the Originating Summons was a prerequisite to the suit being heard, the court found the application merited and granted substituted service by newspaper advertisement.
p. 1
Legal principles established
#- Where a plaintiff demonstrates fruitless efforts to trace a defendant, the court may grant leave for substituted service by newspaper advertisement
Court orders
#- 1.Leave granted to serve the Originating Summons on the defendant by substituted service through advertisement once in the Daily Nation Newspaper
- 2.Costs of the application to be costs in the cause
- 3.Substituted service through the Daily Nation Newspaper to be executed within 30 days of 8th April 2019
- 4.Directions on 10th June, 2019
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act, in a matter concerning land parcel South Tharaka/Tunyai 'A'/390 brought under Sections 7, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 8 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mutugi Mwithi v Dedan Mugo Mwangi (Environment & Land Case 1 of 2019) [2019] KEELC 3967 (KLR)", Case Analysis (2019). Chuka ELC Case No. 01 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3967/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.