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ELCDismissedNot stated in the excerpt (ELC, Kerugoya)· [2020] KEELC 1826 (KLR)

Esther Wangechi Mwaniki v J Warui Mwaniki & 36 others [2020] KEELC 1826 (KLR)

Environment and Land Court
19 June 2020
ECE.C. Cherono
1,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to let a blind plaintiff serve court papers on notice boards, because substituted service must target where defendants actually live or work.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on a Notice of Motion dated 29th January 2019 brought under Order 45 Rule 1, Order 5 Rule 14 CPR and Section 3A of the Civil Procedure Act. The Applicant, a blind and ailing plaintiff, sought review of orders made on 30th November 2016 directing that service of summons on seventeen defendants be effected by advertisement in the Daily Nation or Standard newspapers. She stated she could not raise the approximately Kshs. 236,000 required by three media houses and instead sought leave to serve by affixing summons and pleadings on Court Notice Boards within Kirinyaga County. The application was opposed by several respondents through grounds of opposition and written submissions, who argued that no new matter or error apparent on the face of the record justified review, that there was inordinate delay, and that a genuinely indigent litigant could have sued as a pauper under Order 33. The court held that while substituted service is permissible where personal service is impractical, the proposed mode failed Order 5 Rule 14 CPR, which contemplates affixation at a place where the defendant ordinarily resides or works so as to easily see the summons. The process server's affidavit showed the defendants' whereabouts were unknown and their plots vacant, and there was no indication they lived near the courts. The application was dismissed with costs abiding the event.

Key legal issues

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01

Whether affixing summons on Court Notice Boards within Kirinyaga County is a permissible mode of substituted service

Holding

The application was dismissed because the proposed mode of service did not satisfy Order 5 Rule 14 CPR

Reasoning

The court held that substituted service by affixation is designed to enable a defendant who ordinarily resides or works near the place of affixation to see the summons easily. The process server's affidavit showed the defendants' whereabouts were unknown and their plots vacant and undeveloped, with no indication they live near the Kirinyaga Law Courts. Affixing documents on court notice boards would therefore not bring the suit to their attention, and the proposed mode failed the statutory threshold.

p. 2
02

Whether the orders of 30th November 2016 should be reviewed on account of the Applicant's inability to afford advertisement costs

Holding

No review was granted; the court found the proposed alternative service mode defective in law irrespective of the Applicant's financial circumstances

Reasoning

Although the Applicant pleaded blindness, ill-health and inability to raise Kshs. 236,000 for newspaper advertisement, the Respondents argued no error apparent on the face of the record or new matter existed, and that there was inordinate delay. The court did not engage the review grounds in detail, instead disposing of the application on the ground that the proposed substituted service mode did not meet Order 5 Rule 14 CPR.

p. 2

Legal principles established

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  • Personal service is the rule; substituted service is permitted only where personal service is impractical and the mode proposed must be one reasonably calculated to bring the proceedings to the defendant's attention
  • Substituted service by affixing summons under Order 5 Rule 14 CPR requires that the defendant ordinarily resides or carries on business at the place of affixation so as to easily see the summons

Court orders

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  1. 1.The Notice of Motion dated 29th January 2019 is dismissed
  2. 2.Costs shall abide the event

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 5 Rule 14
  • Civil Procedure RulesOrder 37 Rule 1
  • Civil Procedure ActOrder 33 (pauper suits)

Cases cited (2)

  • Kellen Karimi Nduma Ndambiri & Another Vs the Hon. Attorney General & 2 others
    ELC No. 32 of 2012 (Kerugoya) (U.R)
  • Grace Akinyi Vs Gladys Kemunto Obiri & Another
    ELC No. 193/2015 (Eldoret) (U.R)
Jurisdiction invoked
Order 45 Rule 1 CPR, Order 5 Rule 14 CPR and Section 3A Civil Procedure Act (inherent jurisdiction)

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, "Esther Wangechi Mwaniki v J Warui Mwaniki & 36 others [2020] KEELC 1826 (KLR)", Case Analysis (2020). Not stated in the excerpt (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1826/eng@2020-06-19

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