ISSA ATHMAN MOHAMED VS ABDULLA MWAKAGA AND JOSEPH KILUNGYA MAKATI AND 1 Others

1.    The application for extension of validity of summons and for substituted service is allowed, as per prayers 1 and 2, the court being satisfied that the statutory threshold under Order 5 Rule 17 has been met and that the justice of the case requires the court’s intervention.

Case background
2.    The plaintiff, Issa Athman Mohamed, moved the court by Chamber Summons dated 11 November 2025 seeking leave to serve the defendants by way of substituted service and an extension of the validity of summons in ELCLC Suit No. E102 of 2024, on the ground that personal service has proved impossible despite diligent efforts. The application is supported by his affidavit sworn on the same date and the annexed affidavit of service marked “IAM–1”, which detail the efforts made to serve the defendants personally and the circumstances under which service has been thwarted.

Applicable law
3.    The application is brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 5 Rules 2(2) and 17(1) and (4) of the Civil Procedure Rules. Order 5 Rule 17(1) empowers the court, where satisfied that for any reason summons cannot be served in accordance with the ordinary rules, to direct service “by affixing a copy thereof in some conspicuous place in the courthouse, and also upon some conspicuous part of the house… or in such other manner as the court thinks fit,” and such substituted service is as effectual as personal service.
4.    In Maina v Langat & 2 others (Civil Application E009 of 2023) KECA 395 (KLR), the Court of Appeal affirmed that substituted service may be ordered “after all reasonable and proper efforts have been made to trace the respondent but in vain,” and cited Ephraim Njugu Njeru v Justin Bedan Njoka Muturi & 2 others eKLR on the court’s power to grant leave once satisfied that personal service is impracticable. The same decision emphasizes that Order 5 Rule 17 is an adjunct to the court’s obligation to ensure parties are notified of proceedings while preventing abuse through evasion of service.
5.    On extension of validity of summons, guidance is found in Order 5 Rule 2(2) and Order 50 Rule 6 of the Civil Procedure Rules, under which the court has discretion to enlarge time “upon such terms as the justice of the case may require,” even after expiry of the original period. Kenyan superior courts have consistently held that such discretion must be exercised judiciously and in furtherance of the overriding objective under sections 1A and 1B of the Civil Procedure Act.

Analysis
6.    The affidavits on record show that, following issuance of summons to enter appearance, the process server made attempts at personal service which were unsuccessful because the defendants’ current whereabouts could not be ascertained. The process server then delivered the summons and pleadings to the Area Chief of the locality where the suit properties are situated; the Chief notified the defendants and invited them to collect the documents, but persons known to be their representatives or agents declined to accept service and returned the documents, as deponed in “IAM–1”.
7.    It is further deponed that the suit premises are manned by persons associated with the defendants who have similarly refused to acknowledge or accept service, notwithstanding the defendants’ clear knowledge of the existence of the suit. In line with the Court of Appeal’s reasoning in Maina v Langat (cited above) that substituted service is resorted to after reasonable efforts at personal service have failed, and with Ephraim Njugu Njeru (supra) which recognizes the court’s power where defendants cannot be served personally, the factual matrix here demonstrates deliberate avoidance of service and renders further attempts at ordinary service futile.
8.    I am satisfied that the modes proposed—posting the summons at the Environment and Land Court notice board in Mombasa, at a conspicuous place on the suit premises, at the Area Chief’s office, and, in the alternative, by advertisement in a newspaper of nationwide circulation—are reasonably tailored to bring the proceedings to the defendants’ attention, bearing in mind their connection to the suit properties and prior communication through the Chief. Under Order 5 Rule 17, such modes fall within “such other manner as the court thinks fit,” and, once authorized, are deemed as effectual as personal service.
9.    Given that the inability to effect personal service has persisted within the lifespan of the summons, and that the plaintiff has exhibited diligence rather than indolence, I find that this is an appropriate case for extension of the validity of summons under Order 5 Rule 2(2) and Order 50 Rule 6, so as to facilitate substituted service and forestall any later challenge founded on alleged lack of notice. Granting the orders sought accords with the overriding objective to ensure just, expeditious, proportionate and affordable resolution of disputes, and prevents the defendants from frustrating the court process through evasive conduct only to re‑emerge with applications to set aside proceedings.

Orders
10.    For the foregoing reasons, the Chamber Summons dated 11 November 2025 is merited and is hereby allowed on the following terms:
    a.    The validity of the summons issued herein is extended for a further period of twelve (12) months from the date of this ruling, or     for such shorter period as may be sufficient to effect service, pursuant to Order 5 Rule 2(2) and Order 50 Rule 6 of the Civil     Procedure Rules.
    b.    Leave is granted for the summons to enter appearance, together with the plaint and any other necessary pleadings, to be     served upon the defendants by way of substituted service under Order 5 Rule 17, as follows:
            i.    By posting copies thereof at the Environment and Land Court notice board at Mombasa;
            ii.    By posting copies thereof at a conspicuous place on the suit premises the subject of this suit;
            iii.    By posting copies thereof at the office of the Area Chief for the locality in which the suit properties are situate;
            iv.    In the alternative, and where counsel deems it appropriate, by way of one advertisement in a newspaper of nationwide                 circulation.
    c.    Upon proof of any of the above modes of service, such service shall be deemed proper and sufficient service upon all the defendants for purposes of these proceedings, in accordance with Order 5 Rule 17(4).
    d.    The costs of the application shall be in the cause. 
 

In the presence of:
Gillian - Court assistant
Arunga for the Plaintiffs/Applicants