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ELCPartially AllowedOriginating Summons dated 13/06/2024 (filed 14/06/2024), ELC Kitale· [2024] KEELC 6667 (KLR)

Kitpui v Kibet (Environment & Land Case E023 of 2024) [2024] KEELC 6667 (KLR)

Environment and Land Court
7 October 2024
FNF. Nyagaka
1,334 words in judgment
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The bottom line

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A Kenyan court allowed a land owner to serve a missing defendant through newspaper adverts and notices on the property, but only after strict conditions were met.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale on the Plaintiff/Applicant's application dated 13/08/2024 seeking leave to serve the Defendant/Respondent, Kiptel Kibet, by substituted service in a suit in which the Plaintiff claims a declaration of title by adverse possession over Kwanza/Namanjala Block 4/Kapsitwet/352, an order compelling the Defendant to execute transfer documents (or that the original title be dispensed with), and a prohibitory injunction. The application was brought under Order 5 Rule 17 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Plaintiff deponed that despite due diligence the Defendant's whereabouts remained unknown. The court initially directed the filing of an Affidavit of Service and confirmation from the local administration. The subsequent Affidavit of Service sworn by process server George Mumali, together with a letter from the Assistant Chief of Kapsitwet Sub-location confirming the Defendant neither resided nor was known in the area, was considered. The court held that the Applicant had not strictly complied with Order 5 Rules 7, 8, 12 and 17, but, as an express exception relying on Article 159(2)(d) of the Constitution and without setting a precedent, accepted the futile attempt to trace the Defendant through the Assistant Chief as satisfying Rules 7, 8 and 12. The application was allowed as prayed but on conditions: advertisement of the summons in the Daily Nation or Standard within 21 days, affixing of A3 copies of the summons at the gate and four corners of the plot for 14 days, and a mention on 06/11/2024 to confirm compliance. Costs were to be in the course.

Key legal issues

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Whether the requirements of Order 5 Rules 7, 8, 12 and 17 of the Civil Procedure Rules for substituted service had been met

Holding

The court found the Applicant had not complied with the rules since no Affidavit of Service showing attempts at personal service was initially filed, but as an exception relying on Article 159(2)(d), accepted the futile attempt to trace the Defendant through the area Assistant Chief as fulfilment of Rules 7, 8 and 12, and granted substituted service on conditions.

Reasoning

The court set out the statutory sequence: personal service under Rule 7, service on an authorized agent under Rule 8, service on an adult family member under Rule 12, and only thereafter substituted service under Rule 17. The initial application failed because no Affidavit of Service was filed. The subsequent Affidavit of Service by the process server, plus a letter from the Assistant Chief confirming the Defendant was unknown in the area, satisfied the court, which invoked the overriding objective under Article 159(2)(d) expressly as an exception and not a precedent-setting practice.

p. 3

Legal principles established

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  • Before leave for substituted service is granted, a plaintiff must demonstrate attempts at personal service in the sequence set out in Order 5 Rules 7, 8 and 12 of the Civil Procedure Rules
  • Substituted service may be effected by advertisement or by affixing a copy of the summons in a conspicuous place including the defendant's last known residence or place of business

Court orders

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  1. 1.The Applicant shall advertise the summons to enter appearance and the pleading in either the Daily Nation or the Standard Newspaper, of a size to be specified by the Deputy Registrar, within the next twenty-one (21) days
  2. 2.The Plaintiff shall make copies of the summons to enter appearance and affix copies thereof in A3 size on the outside of his gate and conspicuous places of the four (4) corners of the plot, within the next seven (7) days for 14 days
  3. 3.The matter shall be mentioned on 06/11/2024 to confirm compliance with the orders

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rules 7, 8, 12, 13, 14, 15 and 17 (including Rule 17(4))
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of Kenya, 2010Article 159 (including Article 159(2)(d))
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Order 5 Rule 17 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kitpui v Kibet (Environment & Land Case E023 of 2024) [2024] KEELC 6667 (KLR)", Case Analysis (2024). Originating Summons dated 13/06/2024 (filed 14/06/2024), ELC Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6667/eng@2024-10-07

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