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ELCDismissedELCA No. E024 of 2025· [2026] KEELC 5512 (KLR)

Nancy Wanjiru Ndiritu alias Nancy Wanjiru Peled v Thome Farmers Company (No.4) Limited & 10 others

Environment and Land Court
21 September 2026
LWL. N. Waithaka
1,367 words in judgment
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The bottom line

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A Kenyan landowner could not serve court papers by newspaper advertisement because she failed to prove she genuinely tried to find the defendants first.

What this practically means

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Executive summary

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The plaintiff instituted a suit by plaint dated 12th August 2025 seeking judgment against eleven defendants, jointly and severally, for eviction from parcels of land known as L.R Nos. Mutara/Thome Block 4/1880, 1538 and 1908 to 1919, aggregating approximately 106 acres, on the basis that she is the lawful owner and that some defendants illegally entered the land in 2024 and erected semi-permanent structures. By notice of motion dated 11th May 2026, she sought leave to serve Summons to Enter Appearance on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by substituted service, namely advertisement in a local daily, on the ground that their whereabouts were unknown despite diligent efforts, including inquiries through the area Chief and the Ministry of Labour and Social Protection. The court framed a single issue: whether the applicant had made a case for substituted service under Order 5 rule 17 of the Civil Procedure Rules. Applying the cited authorities, the court held that substituted service is a remedy of last resort requiring proof of diligent, evidenced attempts at personal service. It found the applicant's claim that the defendants were strangers contradicted her own pleading that some had encroached, that the alleged efforts through the Chief were unsupported by evidence, and that no attempt had been made to serve the 9th defendant, a registered cooperative society, through its registered office. Taking judicial notice that some defendants were not legal entities, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether leave for substituted service under Order 5 rule 17 was warranted

Holding

Leave refused; the applicant did not satisfy the Order 5 rule 17 conditions

Reasoning

The court applied the principles in Order 5 rule 17 and the cited authorities requiring proof that personal service cannot be effected after diligent efforts. It found the claim that the defendants were unknown or strangers contradicted the plaint's averment that some defendants had encroached and erected structures, with no explanation for the departure. Alleged efforts through the area Chief were unsupported by evidence, and no attempt to serve the 9th defendant through its registered office was shown.

p. 10
02

Effect of service on non-legal entities

Holding

Judicial notice taken that some defendants sought to be served are not legal entities, so service on them may have no legal effect

Reasoning

The court observed, taking judicial notice, that some of the defendants sought to be served, such as the 7th and 8th defendants (self help groups), are not legal entities, hence service of summons on them may be of no legal effect. This informed the court's assessment of the utility of the substituted service sought.

p. 10

Legal principles established

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  • Substituted service is a remedy of last resort, available only after all reasonable and proper efforts to trace and personally serve have been made and evidenced
  • An applicant for substituted service must demonstrate due diligence in attempting personal service before resorting to substituted service

Court orders

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  1. 1.The notice of motion application dated 11th May 2026 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 17

Cases cited (5)

  • Ephraim Njugu Njeru vs. Justin Bedan Njoka Muturi & 2 others
    (2006) eKLR

    Substituted service ordered where person to be served is keeping out of the way or summons cannot be served in the ordinary way

  • William Ngare vs Public Trustee & 10 others
    (2015) eKLR

    Substituted service is a remedy of last resort, granted only after all reasonable and proper efforts to personally serve

  • Republic vs. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya
    (2016) eKLR

    Applicant must demonstrate due diligence in attempting personal service before substituted service

  • Isaac Mwangi & another v Molyn Credit Ltd & 3 others
    (2021) eKLR

    Leave for substituted service governed by Order 5 rule 17; court must first be satisfied personal service cannot be effected

  • Maina vs Lagat & 2 others
    (2024) KECA 395 (KLR)

    Leave refused where applicant failed to produce evidence, including process server's affidavit, of attempts at personal service

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to regulate service of process under Order 5 rule 17 of the Civil Procedure Rules

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, "Nancy Wanjiru Ndiritu alias Nancy Wanjiru Peled v Thome Farmers Company (No.4) Limited & 10 others", Case Analysis (2026). ELCA No. E024 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5512/eng@2026-09-21

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