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ELCAllowedNot stated in the extract (Notice of Motion dated 17th February 2025)· [2025] KEELC 4141 (KLR)
Noor v Mutai & 3 others (Land Case E002 of 2023) [2025] KEELC 4141 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#The High Court in Kapsabet allowed a plaintiff who couldn't find the defendant to serve court summons through a newspaper advertisement instead.
What this practically means
#Executive summary
#This was an ex parte notice of motion dated 17th February 2025 by the plaintiff, Abdul Aziz Noor, seeking leave to serve the 1st defendant by substituted service through advertisement of summons in a local circulating daily, with costs in the cause. The application was brought under Order 5 Rule 17 of the Civil Procedure Rules 2010 and sections 1A and 3A of the Civil Procedure Act, supported by the plaintiff's affidavit and eight grounds. The plaintiff deponed that he filed suit by plaint dated 13th July 2023, filed on 17th July 2023, but had been unable to effect service of summons and pleadings on the 1st defendant, whose identity and last known residence were unknown to him and whose efforts to trace him had proved futile. Counsel Mr Victor Kiprono urged the court to allow the application in terms of prayers 1 and 2. The court, per G M A Ongondo, J, framed one issue: whether the application was meritorious. Applying Ogada-vs-Mollin on the right of a party to be made aware of proceedings, and Ephraim Njugu Njeru on substituted service where personal service is impossible, the court found the affidavit demonstrated the impossibility of ordinary service, held the application 'cogent, firm and merited', and allowed it in terms of prayers 1 and 2, with costs in the cause. Delivered at Kapsabet on 26th May 2025.
Key legal issues
#01
Whether leave for substituted service should be granted
Holding
Application allowed; plaintiff granted leave to advertise summons in a local circulating daily
Reasoning
The court applied the principle that a defendant must be made aware of proceedings, and that substituted service is available where personal service is impossible. The supporting affidavit showed the plaintiff could not trace the 1st defendant, whose whereabouts and last residence were unknown, making ordinary service futile.
p. 2
Legal principles established
#- A party to a case must be made aware of its existence to enable that party to respond or not
- Where summons cannot be served in the ordinary way, personal service, a party may be served by substituted service
Court orders
#- 1.Leave granted to the plaintiff to serve the 1st defendant/Respondent through substituted service by advertising the Summons in one of the local circulating dailies
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 5 Rule 17 of the Civil Procedure Rules 2010; sections 1A and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noor v Mutai & 3 others (Land Case E002 of 2023) [2025] KEELC 4141 (KLR)", Case Analysis (2025). Not stated in the extract (Notice of Motion dated 17th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4141/eng@2025-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.