Kubai v Mwingirwa & another (Environment & Land Case E009 of 2021) [2023] KEELC 357 (KLR)
The bottom line
#A Kenyan land court allowed a plaintiff to serve a missing defendant through newspaper adverts, despite finding the plaintiff had misled the court.
What this practically means
#Executive summary
#Key legal issues
#Substituted service where personal service is impossible
The court may allow substituted service upon satisfaction that personal service has been impossible after due diligence; despite the plaintiff having misled the court, the application was allowed
The court noted the law permits substituted service when personal service is impossible after due diligence. The earlier affidavit of service by Koome B Kaithu remained valid and only its maker could withdraw or supplement it. The plaintiff's disavowal amounted to misleading the court, a grave infraction, but the court nonetheless permitted substituted service in the interest of expeditious disposal under sections 1A and 1B of the Civil Procedure Act.
Validity of affidavit of service and duty of candour
A process server's affidavit remains valid until withdrawn by its maker; disowning service without the maker clarifying is a grave infraction
The process server Koome B Kaithu swore he served the 2nd defendant at Kithiiri village in the plaintiff's presence. The plaintiff disowned being the source of that information but the deponent did not clarify. The court held that only the maker can withdraw or supplement an affidavit, condemned false affidavits by process servers as anarchy and obstruction of justice, and flagged an unclarified certificate of search regarding ownership of LR No Uringu II/1873.
Legal principles established
#- Only the maker of an affidavit may withdraw it or swear a supplementary affidavit; an affidavit remains valid otherwise
- Swearing a false affidavit or misleading the court, especially by a process server, is a grave infraction of the law
Court orders
#- 1.The application dated May 12, 2022 allowed
- 2.Plaintiff granted leave to serve the 2nd defendant by substituted service through the print media
- 3.Service of summons to be effected within 45 days from the date of the order
- Jurisdiction invoked
- Inherent power to allow substituted service upon satisfying the court that personal service has been impossible after due diligence; sections 1A & 1B Civil Procedure Act invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kubai v Mwingirwa & another (Environment & Land Case E009 of 2021) [2023] KEELC 357 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/357/eng@2023-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.