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ELCDismissedNot stated in the judgment excerpt· [2024] KEELC 7354 (KLR)

Gichimu s/o Jimmy Wanjao v Kariuki & 3 others (Environment & Land Case E031 of 2022) [2024] KEELC 7354 (KLR)

Environment and Land Court
7 November 2024
JMJ. M. Mutungi
1,434 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 newspaper service on a possibly deceased defendant, ruling only living people can be sued and served.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 9th February 2024 under Order 5 Rule 17 of the Civil Procedure Rules seeking leave to serve the 1st Defendant by substituted service through an advertisement in the Daily Nation Newspaper, having served all other Defendants. The Plaintiff deponed that the 1st Defendant was untraceable, with no available contact information or identity card number. The 2nd Defendant opposed, arguing the Plaintiff had not demonstrated diligent efforts to trace the 1st Defendant, and further produced a death certificate showing 'Francis Njeru Kariuki' died on 2nd January 2006, plus a 1995 affidavit affirming that name and 'Francis N. Njeru' on the Green Card of parcel Mutithi/Strip/221 referred to one and the same person. The Plaintiff contended the Green Card bore 'Francis N. Kariuki' and that it was not certain the death certificate related to the same person. The court framed a single issue: whether the Plaintiff had laid a basis for substituted service. It held that a suit can only be instituted against, and summons served upon, a person who is alive; given the death certificate and 1995 affidavit, the court entertained real doubt whether the 1st Defendant was alive. The burden was on the Plaintiff to prove the 1st Respondent was alive and that personal service was impossible, which he failed to discharge. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether leave for substituted service under Order 5 Rule 17 was warranted

Holding

No - the applicant failed to demonstrate that the 1st Respondent was alive and could not be served personally

Reasoning

The 2nd Respondent produced a death certificate for 'Francis Njeru Kariuki' (died 2nd January 2006) and a 1995 affidavit affirming that name and 'Francis N. Njeru' on the Green Card referred to one person. The plaintiff argued the names differed from the Green Card entry 'Francis N. Kariuki'. The court found genuine doubt as to whether the 1st Defendant was alive, and since only living persons can be served, the burden lay on the plaintiff to prove he was alive and service was impossible, which was not discharged.

p. 3

Legal principles established

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  • A suit can only be instituted against, and summons served upon, a person who is alive; substituted service cannot issue where there is doubt the defendant is living
  • Substituted service is ordered only where the court is satisfied summons cannot be served in the ordinary way or the person is avoiding service

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion application dated 9th February, 2024 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 17

Cases cited (4)

  • Ephraim Njugu Njeru vs. Justin Bedan Njoka Muturi & 2 others
    [2006] eKLR
  • Silas Kithira –vs- Timothy Mugambi
    (2021) eKLR
  • Simon Gichangi Mugo –vs- Pierre Asabi Misambe & 2 Others
    (2013) eKLR
  • Japhet Nzila Muanga –vs- Hamisi Juma Malee
    (2022) eKLR
Jurisdiction invoked
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, "Gichimu s/o Jimmy Wanjao v Kariuki & 3 others (Environment & Land Case E031 of 2022) [2024] KEELC 7354 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7354/eng@2024-11-07

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