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ELCAllowedNot stated in judgment· [2026] KEELC 3588 (KLR)

Njue & 10 others v Njue & 9 others (Enviromental and Land Originating Summons E038 of 2021) [2026] KEELC 3588 (KLR)

Environment and Land Court
11 June 2026
1,381 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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The Environment and Land Court at Embu (E.C. Cherono, ELC Judge) allowed a Notice of Motion dated 20th February, 2026 brought by James Peterson Kinyua, the 6th Plaintiff/Applicant, with the authority of the remaining Plaintiffs, under Order 5 Rules 12 and 13 of the Civil Procedure Rules, 2010, seeking leave to serve the 2nd and 3rd Defendants/Respondents by substituted service. The Applicant deposed that all reasonable efforts to trace and personally serve the 2nd and 3rd Defendants had failed: a licensed process server was engaged and the entire suit land was canvassed, but the defendants, being mere purchasers of portions of the suit land who do not reside thereon, could not be traced. An affidavit of service dated 4th February, 2026 confirmed the unsuccessful attempts. The court noted that although an advocate held brief for the 2nd and 3rd Defendants at a directions hearing on 9th December, 2021, Victor Andande Advocates subsequently filed a Notice of Appointment acting only for the 1st and 10th Defendants, leaving the 2nd and 3rd Defendants unrepresented and untraceable. Framing the sole issue as whether the Applicants met the legal threshold for substituted service, the court applied Order 5 Rule 13 and its two-limb test: diligent attempts at personal service and their failure. Applying Josephat Murimi Gacohi v Mary Wangari Kibiro, Boniface Kariuki Kimani v David Njoroge, Equity Bank Limited v John Kinyanjui Njoroge and the overriding objective drawn from Mumo Matemu, the court was satisfied the threshold was met. The application, unopposed by the other defendants, was allowed. Service is to be effected by publication in the Daily Nation or the Standard, with simultaneous posting of pleadings on the court notice board, service deemed effected on the date of publication, proof of publication to be filed within seven days, and costs in the cause.

Key legal issues

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01

Threshold for substituted service under Order 5 Rule 13 of the Civil Procedure Rules, 2010

Holding

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.

Reasoning

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.

p. 2
02

Appropriate mode of substituted service where a party's whereabouts are unknown

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Leave granted to the Plaintiffs/Applicants to serve the 2nd and 3rd Defendants/Respondents by way of substituted service
  2. 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. 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. 4.Service deemed effected on the date of publication in either newspaper
  5. 5.Plaintiffs/Applicants to file and serve proof of publication within seven (7) days of publication
  6. 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

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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, "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.