REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MURANG’A ELCLC E030 OF 2026 PHILEMON IRUNGU KIBIRU……………………….……..............1ST PLAINTIFF/APPLICANT VERSUS SAMUEL MBURU MUCHOKI(Being sued as the Administrator of the Estate of BEATRICE WANGUI MUCHOKI-DECEASED).........................1ST DEFENDANT/RESPONDENT THE LAND REGISTRAR MURANG’A………...........................2ND DEFENDANT/RESPONDENT THE HONOURABLE ATTORNEY GENERAL..........................3RD DEFENDANT/RESPONDENT RULING [1] This ruling is on the notice of motion dated 7-7-2026. The motion which is brought under Orders 5 rule 17, 51 rule of the Civil Procedure Rules and all other enabling provisions of the law seeks one main order. 2. The 1st Defendant/Respondent Samuel Mburu Muchoki be served with summons to enter appearance through substituted service by way of an advertisement in the local newspapers. [2] The motion is based on two (2) grounds and it is supported by an affidavit sworn by the Plaintiff’s Counsel. The gist of the grounds and the affidavit is as follows. One, the 1 st Defendant is not known to the Plaintiff. The Plaintiff only came to know of the existence of the 1st Defendant in case No. 311 of 2009 filed at Thika. Secondly, all efforts to effect service upon him have not been successful because his places of residence and work are unknown. Finally, the only option left is to serve the 1 st Defendant through substituted service. [3] I have carefully considered the motion including the grounds and the affidavit and I find that more effort should be made to trace the 1 st Defendant and serve him physically. Neither the affidavit nor the grounds bring out even a single incident of any attempt to trace the 1st Defendant. Service through newspapers should be the last resort. ELCLC E030 OF 2026 1R| 2
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[4] From the pleadings, the Plaintiff has brought out a picture of procedural unfairness visited upon him and the person who sold the suit land to him. If this Court proceeded without the first Defendant being served physically this Court would also be accused of the same procedural unfairness that brought about this case. Article 50(1) of the Constitution commands that every person be given a fair hearing. Fair hearing should start with good service otherwise the 1 st Defendant may be condemned unheard. In the final analysis, justice will be served better and faster if every effort is made to serve the 1st Defendant physically because there will be no possibility of the final judgment being set aside on grounds of non service. For the above stated reasons, I dismiss the notice of motion dated 7-7-2026. Dated, signed and delivered virtually at Murang’a this 28th day of July, 2026. M. N. GICHERU JUDGE Delivered online in the presence of:Court Assistant – Antony Plaintiff’s Counsel – Mrs Njomo. ELCLC E030 OF 2026 2R| 2
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