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ELCDismissedNot stated in the judgment· [2026] KEELC 1514 (KLR)

Gikonyo v Mburu & another (Enviromental and Land Originating Summons E024 of 2025) [2026] KEELC 1514 (KLR)

Environment and Land Court (presumed, Murang'a; court not expressly named)
16 March 2026
MGM.N. Gicheru
735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.N. Gicheru, Judge, delivered virtually at Murang'a on 16 March 2026, determines a notice of motion dated 2 February 2026 brought by the Applicant under Orders 5 rule 17 and 51 rule 1 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act. The Applicant sought leave to serve the Respondents with an originating summons - by which he seeks to be declared owner of land he says he occupied rather than bought - by way of substituted service by advertisement in a daily newspaper of nationwide circulation, together with a fixed time for appearance and costs. The application was supported by an affidavit of the Applicant's counsel recounting unsuccessful attempts by a process server at the Respondents' last known locations in Nairobi and Kenol town. The court framed three issues: sufficiency of the service efforts, whether advertisement service should be allowed, and the way forward. It found the affidavit deficient: the process server was not named, the Respondents' exact residences were not stated, and no inquiries were made of the chief, village elder, churches, employers or neighbours. The court reaffirmed that personal service under Order 5 rule 8(1) is the rule and advertisement an exception, and was not satisfied under Order 5 rule 17(1) that every effort at personal service had been made. The motion was therefore refused. The court directed the Applicant to obtain the Respondents' registration particulars from the Land Registrar Murang'a or the National Registration Bureau, then serve them personally in the presence of the area Chief or assistant Chief, with the service photographed, and ordered those officers to grant access to the records. No costs order was made.

Key legal issues

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01

Whether the Applicant demonstrated sufficient efforts to serve the Respondents personally before seeking substituted service

Holding

The Applicant did not do enough; the affidavit failed to identify the process server, the exact places of residence in Kenol and Nairobi, or steps such as inquiries from the chief, village elder, churches attended or neighbours.

Reasoning

The court held that an application for substituted service must be supported by concrete particulars of the attempts made. The affidavit was silent on the process server's identity, the respondents' exact residences, their workplaces, churches, neighbours and whether inquiries were made from the chief or village elder. Such omissions left the court unable to find that every effort to serve personally had been exhausted.

p. 2
02

Whether service by newspaper advertisement should be permitted

Holding

Refused. Personal service under Order 5 rule 8(1) is the rule; advertisement is an exception, and Order 5 rule 17(1) requires the court to be satisfied the summons cannot be served under the rules of Order 5, which was not established.

Reasoning

The court emphasized that personal service is the norm under Order 5 rule 8(1) of the Civil Procedure Rules. Because the Applicant's claim concerns land he says he merely occupied rather than bought, the highest standard of diligence in service was required. On the affidavit evidence, the court could not be satisfied under Order 5 rule 17(1) that service could not be effected personally.

p. 2
03

The way forward

Holding

The Applicant was directed to obtain the Respondents' registration particulars from the Land Registrar Murang'a or the National Registration Bureau and then serve them personally in the presence of the area Chief or assistant Chief, with the service photographed.

Reasoning

Rather than ending the matter, the court crafted a practical pathway to achieve proper personal service. It directed the Applicant to obtain full registration particulars, including village, sub-location, location, sub-county, county/district and identity card numbers, and ordered the Land Registrar and the National Registration Bureau to grant access to those records to facilitate service.

p. 2

Legal principles established

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  • Service of process should always be physical and personal; substituted service by advertisement is an exception permissible only where the court is satisfied that every effort to effect personal service has been made.
  • An applicant seeking substituted service must demonstrate, with specificity, the efforts made by the process server to trace the defendants.

Court orders

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  1. 1.The Applicant's notice of motion dated 2-2-2026 seeking leave to effect substituted service by newspaper advertisement was not granted - the Court declined substituted service
  2. 2.The Applicant to obtain the registration particulars of the two Respondents from the Land Registrar Murang'a or the Director, National Registration Bureau, including village, sub location, location, sub county or division and county or District and Identity Card numbers
  3. 3.Using those particulars, the Applicant to serve the Respondents personally and physically with the originating summons and accompanying documents in the presence of the Chief or assistant Chief of the area where they reside, and such service to be photographed
  4. 4.The Land Registrar Murang'a and the in charge National Registration Bureau to accord the Applicant access to the Respondents' particulars and records necessary to enable him to effect service
Jurisdiction invoked
Orders 5 rule 17 and 51 rule 1 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act (inherent/enabling provisions invoked by the Applicant's motion)

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, "Gikonyo v Mburu & another (Enviromental and Land Originating Summons E024 of 2025) [2026] KEELC 1514 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1514/eng@2026-03-16

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