REPUBLIC OF KENYA

IN THE E.L.C COURT OF KENYA AT EMBU

E.L.C. 19 OF 2017

FORMERLY KERUGOYA E.L.C NO. 107 OF 2014

NJOKA NYAGA……………………………………….PLAINTIFF/APPLICANT

VERSUS

MATHEW MUNYI………………………………………………….DEFENDANT

RULING

1. The Plaintiff in this matter Njoka Nyaga filed an Originating Summons dated 6^th May 2013 seeking determination of three questions relating to L.R No. Embu/Kithunthiri/1295 which he claimed to have occupied for a period of 49 years.  Two of the questions related to adverse possession while the third one related to costs.

2. It would appear that the originating summons was not served upon the Defendant soon enough and on or about 14^th August 2013 the Plaintiff filed a Notice of Motion dated 13^th August 2013 seeking for an order of substituted service of the Originating Summons upon the Defendant.  The Plaintiff also sought to have the Defendant to bear the costs of the application.

3. The said Motion was listed before the Hon. Justice B.N. Olao on 9^th July 2014 who was not satisfied that sufficient effort had been put into tracing and serving the Defendant.  He declined to allow the said application and directed the Plaintiff to make other attempts at service before re-listing the application for substituted service.

4. After the said court appearance of 9^th July 2014 nothing much appears to have taken place except one attempt on 19^th July 2014 to serve the Defendant.  There is an affidavit of service sworn by one G.M. Karuoro on 1^st September 2014 to that effect.  So except for the attempted service of 19^th July 2014, there is no indication of further attempts to trace and serve the Defendant.

5. The grounds advanced in seeking substituted service are that the whereabouts of the Defendant are unknown and that there is need to avoid unnecessary delay in prosecuting the suit.

6. Under the provisions of Order 37 Rule 14 of the Civil Procedure Rules, service of an originating summons should be effected in the same manner as a summons to enter appearance under Order 5 of the Civil Procedure Rules.  It is clear from the provisions of Order 5 that diligent efforts should be made to serve a Defendant personally or his authorized agent or adult member of his family residing with him before substituted service could be resorted to.  The Plaintiff should make several attempts at service or several attempts in tracing the Defendant for service.

7. So has the Plaintiff in this case demonstrated such attempts in diligently tracing the Defendant for the purpose of service?  From the material on record, some attempts were made but perhaps not so diligent in tracing the Defendant.  The Plaintiff attempted service only twice, that is, in May and June 2013 before filing the application for substituted service in August 2013.  Even after the court advised the Plaintiff to make more efforts in tracing and serving the Defendant, the Plaintiff only made one feeble attempt on 14^th July 2014.

8. I am aware that the originating summons is nearly four years old since the date of filing hence there is need to serve the Defendant, fix the originating summons for directions and proceed to hear and determine the cause.  In the circumstances of this case therefore, I am inclined, with some hesitation, to allow the application for substituted service dated 13^th August 2013.

9. I have noted from the application that the Plaintiff has not specified the mode of substituted service which is sought to be employed.  Nevertheless, the said application is allowed in the following terms:

a. The Plaintiff shall serve the originating summons dated 13^th August 2013 by advertising at least once in the Daily Nation newspaper in circulation in the Republic of Kenya.

b. The Notice of substituted service to be advertised shall allow the Defendant at least 30 days to enter an appearance to the originating summons.

c. The costs of the application dated 13^th August 2013 shall be in the cause.

Orders accordingly.

RULING DATED, SIGNED and DELIVERED in open court at EMBU this 16^th day of MARCH 2017

In the presence of Mr Okwaro holding brief for Mr Njiru for the Plaintiff/Applicant.

Court clerk Njue                                                                                                 

Y.M. ANGIMA

JUDGE

16.03.17