The Chamber Summons Application brought under Certificate of Urgency dated 14th January, 2026 seeks for order of;
a) Alternative/substituted service of the Originating Summons and all subsequent pleadings upon the Respondent.
b) That the alternative/substituted service effected by;
i. Advertisement of the suit once in a newspaper of wide national circulation within Kenya preferably the Nation Newspaper or The Standard.
ii. Such other mode of service as the Honourable Court may deem fit and just in the circumstances.
c) That service effected in the manner directed by the court be deemed proper service, good and sufficient service upon the Respondent.
d) That costs of the application be in the cause.
The grounds upon which the application is brought are that the Respondent who is the registered owner of the suit land is believed to reside in Tanzania but his exact location and address are unknown. That reasonable efforts to trace and serve the Respondent have been unsuccessful. That personal service and ordinary service outside the jurisdiction are impracticable that unless alternative service is allowed, the Applicant will suffer undue delay and prejudice.
The Application was supported by the averments in the Supporting Affidavit.
The Application was brought under the provisions of Order 5 Rule 17 and Order 37 of the Civil Procedural Rules which makes provision for service of summons by way of substituted service. From the wording of Rule 17 and in view of the provisions of Rules 21 and 22 of the Civil Procedural Rules on service on summons/ process out of Kenya, I find that Rule 17 relates to service of process by substituted service for people residing in Kenya.
It is a known fact that the Respondent is not within Kenya hence advertisement of the summons in a Newspaper with wide national circulation in Kenya is not an effective/sufficient way to serve process upon the Respondent residing in Tanzania.
The Applicant claims that personal service and ordinary service outside jurisdiction are impracticable.
The essence of substituted service as provided for in the Rule 17 is that it will reach the Respondent for the Respondent to be notified of the existence of the suit and participate. That purpose will not be served by granting the prayers sought herein.
The Application is declined. The Applicant may make more efforts to trace the Respondent for a more efficient/ sufficient mode of service.
No order as to costs.
Ruling dated and signed at Kisumu and delivered virtually this 22nd day of January 2026.
E. Asati, Judge.
In the presence of:
Maureen - Court Assistant
Applicant in person.
FOOTNOTES
ENDNOTES
| ELCLC CASE NO. E001/2026 RULING Page 2 |