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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 1930 (KLR)

Kasera v Ndege (Sued as the legal representative of the Estate of Leornard Ndege - Deceased)v & another; Onyango (Interested Party) (Land Originating Summons E062 of 2025) [2026] KEELC 1930 (KLR)

High Court of Kenya (sitting at Migori)
19 March 2026
FNF. NYAGAKA
1,094 words in judgment
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The bottom line

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The High Court allowed a land party to serve court papers through newspaper ads and notices fixed on the property after the other side could not be traced.

What this practically means

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Executive summary

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This ruling of the High Court at Migori (F. Nyagaka, J) determined an application dated 13th February 2026 by the Defendant, Norah Akinyi Kasera, seeking leave to serve the Plaintiff/Respondent by substituted service in a land dispute over Kanyada/Kotieno Katuma A/1180. The Defendant had filed a defence amended to include a counterclaim for adverse possession and had joined an Interested Party whom she could not trace for service. She deponed that the Plaintiff, previously resident within Homa Bay County, had disappeared after his mother's death; efforts to trace him through the Area Chief and other means failed, stalling the suit. The application was anchored on Article 159 of the Constitution, Order 5 Rule 17 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The court framed a single issue: whether the Applicant had demonstrated entitlement to substituted service. Reviewing Order 5, the court held that personal service (Rule 7), service on an authorized agent (Rule 8) or on an adult family member (Rule 12) must be attempted first, and only on failure may substituted service under Rule 17 be sought by affixation or advertisement under Rule 17(4). Finding that the Applicant had made such attempts, the court allowed the application but imposed conditions: advertisement of the summons and pleadings in the Daily Nation or Standard of a size specified by the Deputy Registrar, and affixation of A4 copies of the summons on the gate and the four corners of the plot, with a mention on 20th May 2026 to confirm compliance. No costs order was made. The extract contains notable internal inconsistencies in the time periods stated for service.

Key legal issues

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Entitlement to substituted service under Order 5 Rule 17 of the Civil Procedure Rules

Holding

The court allowed the application, holding that the Applicant had demonstrated diligent attempts at personal service and that substituted service by advertisement and affixation was merited in the interest of the suit's progress

Reasoning

The court set out the sequential steps required under Order 5: personal service under Rule 7, service on an authorized agent under Rule 8, service on an adult family member under Rule 12, and only then substituted service under Rule 17, whether by affixing copies in a conspicuous place or by advertisement under Rule 17(4). Finding that the Applicant had made and documented such attempts after the respondent relocated from Homa Bay County and could not be traced despite efforts including through the Area Chief, the court held the application merited but granted it on specific conditions as to manner and timing of service.

p. 3

Legal principles established

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  • Before applying for substituted service, a party must demonstrate diligent attempts at personal service or service on an agent or adult family member under Order 5 of the Civil Procedure Rules

Court orders

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  1. 1.The Application dated 13th February 2026 is allowed as prayed
  2. 2.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 stated period
  3. 3.Copies of the summons to enter appearance shall be fixed in A4 size on the outside of the gate and in conspicuous places of the four corners of the plot for the stated duration
  4. 4.The matter to be mentioned on 20th May 2026 to confirm compliance with the orders
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, "Kasera v Ndege (Sued as the legal representative of the Estate of Leornard Ndege - Deceased)v & another; Onyango (Interested Party) (Land Originating Summons E062 of 2025) [2026] KEELC 1930 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1930/eng@2026-03-19

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