RULING
1. By an Ex-parte Chamber Summons dated 28th October 2025, Ahmed M. Bayusuf (the Applicant) prays for and order that the Court be pleased to grant him leave to serve the Respondent by way of substituted service by advertisement in one of the local newspapers.
2. The application which is supported by an Affidavit of Service sworn by the Applicant’s counsel on record Awino Joshua is premised on the grounds ;
a) That it is impracticable to effect Personal Service upon the Respondents since her whereabouts are unknown;
b) That there is no other way of effecting service; and
c) That the Counsel for the Applicant has made numerous attempts to locate the Respondent for purposes of service in vain.
3. I have carefully perused and considered the Chamber Summons and the grounds upon which it has been brought by the Applicant.
4. Order 5 Rule 17(1) of the Civil Procedure Rules provides on instances when a Court may order substituted service as follows;
“17 (1) Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some 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, or in such other manner as the court thinks fit.
(2) Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally.
(3) …..
5. In the Affidavit filed in support of the application, Counsel for the Applicant depones that on 22nd July 2025, they served a Hearing Notice together with a Notice of Motion dated 4th June 2025 upon the Respondents through the Respondent’s advocate’s email address and that he thereafter received a delivery note. It is however their case that on the date appointed for hearing neither counsel nor the Respondents made any appearance.
6. It is further the Applicant’s case that they were unable to effect physical service upon the Law Firm on record for the Respondents as they are no longer situated at their last known physical address. The Applicant’s Counsel further depones that when they reached out to the Respondent’s Advocate by phone, the said Advocate indicated that he no longer had instructions in the matter and that he was unaware of the whereabouts of the Respondents.
7. Arising from the foregoing and given that this is a matter that was last in Court in the year 2021. I am persuaded that the Applicant has demonstrated that he had made reasonable attempts to effect person service on the Respondents and that the same had proved futile.
8. Substituted service is normally ordered where the Court is satisfied that there is reason to believe that the person to be served is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way.
9. In the circumstance herein I am persuaded that there is merit in the Chamber Summons dated 28th October 2025 and I allow the same in terms of prayer No. (a) of the application.
10. The Applicant has 45 days from today within which to serve the notices. The Respondents shall have 21 days after service within which to respond.
11. The costs of the application shall be in the cause.
Ruling dated, signed and delivered in open court and virtually at Mombasa this 17th day of June, 2026.
J.O. OLOLA
JUDGE
In the presence of:-
a) Ms. Firdaus Court Assistant
b) No Appearance Advocate for the Applicant
c) No Appearance Advocate for the Respondents