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ELCDismissedNot stated in the judgment text provided· [2022] KEELC 154 (KLR)

Karingi v Migwi & 8 others (Environment & Land Case 208 of 2014) [2022] KEELC 154 (KLR)

Environment and Land Court
10 June 2022
ECE.C. Cherono
869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer couldn't serve court papers on unknown defendants because he never first tried to find and serve them personally.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th May 2021, the plaintiff/applicant sought leave to serve Justus Njiaini Githaiga, Weston Gachoki Kinuua, Julius Karimi Migwi, Anthony Muriuki Munyiri, Julius R.M Muguongo and Anne Waithera Kandege with the application dated 16/10/2020 and other pleadings by substituted service, by affixing them on the notice boards of all court stations within Kirinyaga County. The applicant had purchased two parcels of land, L.R NO. INOI/THAITA/49 and INOI/THAITA/233, and discovered after filing suit that the defendant had subdivided and transferred portions of the suit land to third parties, including subdivisions registered to Stanley Kinyua, Peter Karimi Njuiri, Geofirey Mwai Gitura and Anne Waithera Kandege. The applicant deposed that he did not know the whereabouts, addresses or telephone numbers of these purchasers, and that the area sub-chief of Thaita Location did not know them and confirmed they did not reside within his jurisdiction. Relying on Order 5 Rule 17 of the Civil Procedure Rules, E.C. Cherono, ELC Judge, held that substituted service is an alternative to personal service, permitted only after several unsuccessful attempts at personal service. The applicant had annexed no affidavit of service evidencing attempts at personal service and had not explained how notice-board service would reach defendants whose whereabouts were unknown and who may not reside within the court's jurisdiction. The application was dismissed with no order as to costs on 10th June 2022.

Key legal issues

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Whether substituted service under Order 5 Rule 17 CPR was justified on the facts

Holding

The application was dismissed because the applicant did not show attempts at personal service nor that affixing on court notice boards would reach defendants whose whereabouts were unknown

Reasoning

The court noted that substituted service is a fallback to personal service and requires proof of several unsuccessful attempts. The applicant admitted he did not know the whereabouts, addresses or telephone numbers of the intended defendants, annexed no affidavit of service, and did not explain how notice-board service would reach them. Since the defendants may not reside within the jurisdiction, affixing on notice boards would serve no useful purpose.

p. 3

Legal principles established

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  • Substituted service is an alternative mode available only where personal service has been attempted severally without success, and the applicant must demonstrate attempts at personal service
  • Summons and court processes must ordinarily be served personally unless the defendant has an agent empowered to receive service

Court orders

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  1. 1.The Notice of Motion dated 13th May 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure RulesOrder 5 Rule 12
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; application brought under Order 5 Rule 17 of the Civil Procedure Rules

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, "Karingi v Migwi & 8 others (Environment & Land Case 208 of 2014) [2022] KEELC 154 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/154/eng@2022-06-10

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