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ELCPartially AllowedNotice of Motion dated 12th March 2026 (ELC suit, Mombasa)· [2026] KEELC 4744 (KLR)
Mleka v Shewe (Enviromental and Land Originating Summons E007 of 2026) [2026] KEELC 4744 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#A Mombasa court allowed a Kenyan litigant to serve court papers by newspaper ad, but only if they also try phone, email, and post first.
What this practically means
#Executive summary
#This is a ruling on a Notice of Motion dated 12th March 2026 seeking leave to serve pleadings on a respondent who could not be traced, by advertisement in the Daily Nation or the Standard newspaper. The application was brought under Order 5 rule 17 and Order 51 rule 1 of the Civil Procedure Rules, 2010, and sections 1A, 1B and 3A of the Civil Procedure Act, supported by an affidavit of the applicant's advocate, Kipkurui Ngeno Birir, and a process server's affidavit of non-service sworn by George Otieno. The process server deponed that from 29th January 2026 he made physical visits to Plot Msamwe Mbelegeza/1207, made neighbourhood inquiries, and checked at the Lands Office for the respondent's address, all without success. The court reviewed Order 5 rule 17 and followed Musyoka & 2 others v Munguti & 2 others [2023] KEELC 473 (KLR) and the Court of Appeal decision in Maina v Langat & 2 others [2024] KECA 395 (KLR), confirming that substituted service is a secondary remedy available after all reasonable efforts to trace a party fail. Importantly, the court added its own guidance: substituted service should not issue on bare generalities, and courts should favour graduated alternatives, including electronic and physical channels, before resorting to newspaper advertisement alone. Satisfied that diligent efforts had been made, the court granted leave for substituted service by advertisement, but also required supplementary service by SMS, WhatsApp, email, registered post or physical delivery where any last known contact is available, an affidavit of compliance, and fixed thirty days for entry of appearance. Costs were made costs in the cause. The application was thus allowed on modified terms rather than exactly as prayed.
Key legal issues
#01
Whether substituted service by advertisement was merited
Holding
Allowed, with additional graduated modes of service
Reasoning
The process server made physical visits to the plot, neighbourhood inquiries and a registry follow-up at the Lands Office, all without success. The court found these efforts more than perfunctory and was satisfied personal service could not be effected. However, applying its own gloss on Order 5 rule 17, it required that newspaper advertisement be supplemented by any last known electronic or physical channels of contact, and fixed a 30-day appearance period, with an affidavit of compliance to be filed.
p. 3
Legal principles established
#- An order for substituted service should not issue on bare generalities; the applicant must demonstrate specific, chronological and diligent efforts at personal service, and the proposed mode must be reasonably likely to bring the suit to the respondent's notice.
- Substituted service is a secondary remedy resorted to only after all reasonable and proper efforts to trace the respondent have failed.
- Procedure must remain the servant of justice; courts should favour graduated alternatives calculated to bring proceedings to the attention of the person to be served before resort to newspaper advertisement alone.
Court orders
#- 1.Leave granted to serve the respondent by substituted service through advertisement in either the Daily Nation or the Standard newspaper, in a reasonably sized and conspicuous part of the paper
- 2.In addition to the advertisement, the applicant shall transmit the pleadings or a notice of the suit by any available last known contact: SMS, WhatsApp, email, registered post, or delivery at last known residence or place of business
- 3.An affidavit of compliance shall be filed exhibiting the newspaper advertisement and any available proof of transmission or attempted transmission through the additional modes
- 4.The respondent shall enter appearance within thirty (30) days from the date of publication of the advertisement, failing which the matter may proceed in accordance with the law
- 5.Costs of the application shall be in the cause
- Jurisdiction invoked
- Order 5 rule 17 and Order 51 rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mleka v Shewe (Enviromental and Land Originating Summons E007 of 2026) [2026] KEELC 4744 (KLR)", Case Analysis (2026). Notice of Motion dated 12th March 2026 (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4744/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.