Njue & 10 others v Njue & 9 others (Enviromental and Land Originating Summons E038 of 2021) [2026] KEELC 3588 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold for substituted service under Order 5 Rule 13 of the Civil Procedure Rules, 2010
The Applicants met the threshold: a licensed process server was engaged, the entire suit land was canvassed, an affidavit of service confirmed unsuccessful attempts, and the defendants' whereabouts are unascertainable as they are mere purchasers who do not reside on the suit land.
Order 5 Rule 13 permits substituted service where the defendant is keeping out of the way to avoid service or where for any other reason the summons cannot be served in the ordinary way. The court applied the two-limb test from Josephat Murimi Gacohi v Mary Wangari Kibiro: diligent attempts at personal service, and their failure. The affidavit of service of 4th February 2026 satisfied the first limb, and the defendants' unascertainable residence satisfied the second. Their prior awareness of proceedings through counsel who held brief supported the grant, and the application was uncontested.
Appropriate mode of substituted service where a party's whereabouts are unknown
Publication in a widely circulating daily newspaper (Daily Nation or Standard), with simultaneous posting of the summons, plaint and pleadings on the court notice board, with service deemed effected on the date of publication.
The court reasoned that publication in a newspaper of wide circulation is the mode best calculated to reach parties whose whereabouts are unknown. The notice must set out the nature of the suit and the orders sought and call on the defendants to enter appearance within fifteen days. The overriding objective of conducting proceedings in a just, expeditious and proportionate manner supported moving the suit forward rather than allowing the defendants' disengagement of counsel to stall it.
Legal principles established
#- Before ordering substituted service the applicant must demonstrate diligent attempts at personal service and their failure because the defendant is evading service or personal service cannot otherwise be effected.
- Publication in a widely circulating daily newspaper is an appropriate mode of substituted service where a party's whereabouts are unknown, and service is deemed effected on the date of publication.
Court orders
#- 1.Leave granted to the Plaintiffs/Applicants to serve the 2nd and 3rd Defendants/Respondents by way of substituted service
- 2.Substituted service by publication of a notice, together with the summons and a summary of the Plaint, in either the Daily Nation or the Standard newspapers, calling upon the 2nd and 3rd Defendants to enter appearance within fifteen (15) days of publication
- 3.A copy of the summons, the Plaint, and all filed pleadings to be posted on the notice board of the court simultaneously with the newspaper publication
- 4.Service deemed effected on the date of publication in either newspaper
- 5.Plaintiffs/Applicants to file and serve proof of publication within seven (7) days of publication
- 6.Costs of the Application to be in the cause
- Jurisdiction invoked
- Order 5 Rules 12 and 13 of the Civil Procedure Rules, 2010 and all enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njue & 10 others v Njue & 9 others (Enviromental and Land Originating Summons E038 of 2021) [2026] KEELC 3588 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3588/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.