REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO ELCLOS E005 OF 2026 LUCY WAMBUI THUO……………………………………. ………..APPLICANT -VERSUSDANIEL KIBE……………………………………………………….RESPONDENT RULING. (In respect of the Notice of Motion dated 21st September 2026 brought under the provisions of Order 5 Rule 17 of the Civil Procedure Rules, Sections 13 and 19 of the ELC Act and Sections 1A, 1B and 3A of the Civil Procedure Act). Introduction. 1. The application before the court is a notice of motion dated 21 st September 2026 by the applicant herein seeking leave of the court to serve the Originating Summons upon the respondent by way of substituted service on the premises that the current physical address, contact details and the whereabouts of the __________________________________________________________________ RULING ELC NO. E005/2026 1
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respondent are unknown. The applicant therefore avers that that the personal service of the pleadings upon the respondent is impossible. He seeks to serve by way of publication in a newspaper of nationwide circulation, affixing a copy of the pleadings on the notice board of the court and on a conspicuous part of the suit property. 2. The application is supported by the affidavit of Christopher Kimiti Njoroge sworn on 21st September 2026. The deponent who is an advocate of this court deposes that he has made efforts to establish the whereabouts of the respondent to no avail. Issues for determination. 3. The sole issue for determination is whether the application is merited. Determination. 4. The law governing substituted service of summons is order 5 rule 17 of the civil procedure rules which grants the court the discretion, upon an application, to order for service of summons by substituted service. The sole requirement for the exercise of the court’s discretion under the rule is that the court must be satisfied that the summons cannot be served in accordance with the preceding rules. __________________________________________________________________ RULING ELC NO. E005/2026 2
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5. The preceding rules referred to under rule 17 make provisions for personal service of summons upon a defendant or upon his/her authorized agent or an adult member of the family of the defendant residing with him/her. The import of the above provision is that substituted service will be allowed where the applicant demonstrates inability to effect service of summons upon the defendant personally through his/her authorized agent or upon an adult member of the family of the defendant who is residing with him/her, after several attempts have been made and the defendant cannot be found. 6. The mode of service under rule 17 is by affixing a copy of the summons in some conspicuous place in the court-house or a conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain. Sub-rule 4 additionally provides for service by advertisement. 7. Order 5 rule 22B (amendment) Rules, and 22C of the Civil Procedure Rules 2020 make provision for service by electronic means. The rules impose conditions for electronic service to be deemed effective. There must be proof an actual __________________________________________________________________ RULING ELC NO. E005/2026 3
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delivery evidenced by a delivery receipt which must be annexed to the affidavit of service. 8. In Commission for Human rights & Justice –vs- Jacob Kimutai Torutt & 5 others (2021), eKLR, the court stated that, “Needless to say, the Civil Procedure (Amendment) Rules, 2020 now embrace the Electronic Mail Service and service via Mobile Enabled Messaging applications. The Rules further provide that the person affecting service shall attach the Electronic Mail Service delivery receipt upon confirming service, and in case of service via Mobile Enable Messaging application also attach delivery receipts confirming service (See Order 5 rules 22B and rule 22 respectively).” 9. As to what constitutes delivery for purposes of proof of service through WhatsApp, the court in Oyunge Barnabus & 3 others (Suing as Administrators of the estate of Mathayo Ratemo Mayaka (deceased)) -vs- Charles Oteki Rioba [2021] eKLR, held that; __________________________________________________________________ RULING ELC NO. E005/2026 4
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“It is common knowledge that delivery in most cases is confirmed be double ticks which turn blue immediately the recipient views the Message sent. The Respondents have attached a document showing a screenshot message sent to the number that the Applicant has acknowledged to be his that shows two blue ticks signifying that the documents were indeed delivered to the aforesaid number belonging to Applicant." 10. Back to the application before the court, I am satisfied that personal service upon the respondent or the other modes of service provided for under the rules preceding rule 17 of the Civil Procedure Rules or rule 22B and 22C. Consequently, I allow the application for service of the originating summons by substituted service by way of a prominent advertisement in a newspaper of national wide circulation in the next 21 days from the date of this ruling. The respondent shall enter appearance and file his response in 21 days after service. 11. The costs of this application shall abide the outcome of the case. It is so ordered. __________________________________________________________________ RULING ELC NO. E005/2026 5
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Dated Signed and Delivered Virtually this 22nd Day of September, 2026. M.D. MWANGI JUDGE In the virtual presence of: Ms. Nyambura for the Applicant N/A by the Respondent Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ RULING ELC NO. E005/2026 6
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