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ELCDismissedNot stated in judgment (Notice of Motion dated 1st December 2025 in a suit commenced by Originating Summons dated 29th August 2025)· [2026] KEELC 2419 (KLR)

Mrabu & 333 others v Sheikh & 11 others (Environment and Land Case Civil Suit E041 of 2025) [2026] KEELC 2419 (KLR)

Environment and Land Court of Kenya
30 April 2026
JOJ.O. Olola
727 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa refused 334 plaintiffs permission to serve defendants by newspaper ad because they showed no real effort to trace them first.

What this practically means

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Executive summary

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The 334 Plaintiffs moved the court by Notice of Motion dated 1st December 2025, supported by affidavits of their advocate McMillan E. Jengo and process server Morris Mwasaghua, seeking leave to serve summons issued on 1st September 2025 and the Originating Summons dated 29th August 2025 by substituted service through a newspaper advertisement with national circulation. The application was premised on Order 5 Rule 17 of the Civil Procedure Rules, with grounds that the process server could not trace the defendants, that all efforts at personal service were futile, and that allowing the application would serve the interest of justice and avoid delay. The court held that Order 5 Rule 17 requires the court to be satisfied that summons cannot be served under the preceding rules, and that substituted service may only be ordered where a detailed statement explaining non-service is filed. Examining the affidavit of non-service sworn on 28th November 2025, the judge could not discern any efforts deployed by the process server to trace the defendants, and noted that the 10th and 12th Defendants are limited liability companies whose mode of service is provided for in law, with nothing before the court demonstrating efforts to serve those companies as by law provided. Concluding that the Plaintiffs had been 'more than casual' and had made no reasonable efforts to trace and serve the defendants, the court found no merit in the motion, struck it out and made no order as to costs. The ruling was delivered at Mombasa on 30th April 2026 by J.O. Olola, Judge.

Key legal issues

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01

Threshold for substituted service under Order 5 Rule 17

Holding

The application was struck out because the Plaintiffs failed to demonstrate reasonable efforts to trace and serve the Defendants, and no efforts were shown to serve the limited liability company defendants as by law provided

Reasoning

Order 5 Rule 17 requires the court to be satisfied that summons cannot be served under the preceding rules before ordering substituted service. The process server's affidavit of non-service merely stated that the defendants could not be located without detailing any tracing efforts. For corporate defendants, service must follow the statutory mode, and nothing was placed before the court showing attempts to serve the 10th and 12th Defendants accordingly. The court therefore found the plaintiffs casual and the application lacking merit.

p. 3

Legal principles established

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  • An order for substituted service under Order 5 Rule 17 is granted only where the court is satisfied that the summons cannot be served in the ordinary manner, supported by a detailed statement explaining non-service and demonstrating reasonable efforts to trace the defendants

Court orders

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  1. 1.The Motion dated 1st December 2025 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 17
Jurisdiction invoked
Order 5 Rule 17 of the Civil Procedure Rules (substituted service)

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, "Mrabu & 333 others v Sheikh & 11 others (Environment and Land Case Civil Suit E041 of 2025) [2026] KEELC 2419 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 1st December 2025 in a suit commenced by Originating Summons dated 29th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2419/eng@2026-04-30

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