RULING
1. Vide a plaint dated 12th August, 2025 the plaintiff/applicant instituted the instant suit seeking judgment against the defendants herein, jointly and severally for, an order of eviction of the defendants from the suit property.
2. As can be discerned from the averments/contentions in the plaint, the plaintiff’s suit/claim against the defendants is premised on the ground that the plaintiff is the lawful owner of the parcels of land known as L.R Nos. Mutara/Thome Block 4/1880, 1538, 1908, 1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918 and 1919, in aggregate measuring 106; that she (the plaintiff) had been in exclusive use and possession of the suit land until sometime in 2024 when some of the defendants illegally entered into the suit land and started constructing semi-permanent buildings thereon.
3. Vide paragraph 21 of the plaint, the plaintiff has deponed that despite demands made and intention to sue intimated, the defendants have failed, neglected and/or refused to cease interfering with the suit property.
4. Despite having expressly stated in his pleadings/plaint that some of the defendants have encroached into the suit property and erected semi-permanent structures thereon, the plaintiff through, the notice of motion/application, which is subject matter of this ruling, dated 11th May 2026, seeks leave of this Honourable court to effect service of Summons to Enter Appearance on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service namely, publication of advertisement in one of the local dailies.
5. The application is premised on the grounds that the whereabouts of the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants are unknown to the plaintiff; that despite all reasonable and diligent efforts, the plaintiffs cannot trace the defendants for service; that the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants are total strangers to the plaintiff and that the plaintiff is unable to direct a process server to the defendants for service.
6. The application is supported by the affidavit of the plaintiff’s advocate, Wanjira Mwaniki, sworn on 11th May 2026, on which the grounds on the face of the application are reiterated. Annexed to the supporting affidavit is a letter from the plaintiff/applicant’s advocate to the Land Registrar, Laikipia West, indicating that the plaintiff had written to the Ministry of Labour and Social Protection, Department of Social Development, seeking registration details of the Self Help Groups listed therein and requesting to be supplied with copies of registration certificates for the Self Help Groups listed in the letter. The deponent has also annexed the letter the plaintiff wrote to the Ministry of Labour and Social Protection, dated 27th February 2025.
7. Through the affidavit sworn in support of the application, the plaintiff/applicant further depones that efforts to trace the defendants through the office of the Chief Thome, Thome location, were futile.
8. The sole issue arising from the application is whether the applicant has made up a case for being granted leave to effect service on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service namely, publication of advertisement in one of the local dailies.
9. Regarding that issue, for the applicant to be granted leave to effect service on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service, the applicant must satisfy the principles/conditions set out in Order 5 rule 17 of the Civil Procedure Rules and restated in decided authorities.
10. In Ephraim Njugu Njeru vs. Justin Bedan Njoka Muturi & 2 others (2006) e KLR, the Court held that 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 for any other reason the summons cannot be served in the ordinary way, which is generally personal service.
11. In William Ngare vs Public Trustee & 10 others (2015) e KLR, the Court held that substituted service is a remedy of last resort and should only be granted after all reasonable and proper efforts have been made to trace and personally serve the respondent.
12. In Republic vs. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya (2016) e KLR, the High Court emphasized that an applicant must demonstrate due diligence in attempting personal service before making substituted service. The court stressed that substituted service is only available where personal service is impracticable.
13. Similar holdings were made in the case of Isaac Mwangi & another v Molyn Credit Ltd & 3 others (2021) e KLR where the Court reaffirmed that leave for substituted service is governed by Order 5 rule 17 and held that the Court must first be satisfied that personal service cannot be effected.
14. In Maina vs Lagat & 2 others (2024) KECA 395 (KLR), the Court of Appeal refused leave for substituted service because the applicant failed to produce evidence, including an affidavit from the process server, showing attempts at personal service. The court reiterated that substituted service is only available after genuine efforts to effect personal service has failed.
15. In applying the above cited guidelines/principles underpinning grant of leave to effect substituted service to the instant application, I have taken into account that the applicant has in his pleadings/plaint deponed that some of the defendants have encroached on parts of the suit property and erected semi-permanent buildings therein, I have also taken into account the claim or contention by the applicant that the defendants are unknown to her or are strangers to her, which claim or allegation is tantamount to a departure from the averment in her pleading that some of the defendants have encroached on the suit property and erected semi-permanent houses therein. Neither the applicant nor her advocate has offered explanation for the departure from the allegation in the plaint that some of the defendants have encroached onto the suit property and erected semi- permanent buildings thereon. The claim/allegations that efforts to reach the defendants through the area Chief, Thome Location, have been futile are not supported by any evidence of such effort. Moreover, there is no indication of any effort of serving the 9th defendant, a registered Savings and Cooperative Society through its registered office or indication of any efforts to serve it through its registered office as by law required.
16. I also take judicial notice of the fact that some of the defendants sought to be served, for instance, the 7th and 8th defendants, are none legal entities hence service of summons on them may be of no legal effect.
17. In view of the foregoing, I find and hold that the applicant has not made up a case for being granted the orders sought in the notice of motion application dated 11th May 2026. Consequently, I dismiss the application with no orders as to costs.
Ruling dated, signed and delivered at Nyahururu this 21st day of September, 2026 through Microsoft teams in the absence of the parties.
Court Assistant: Bedan
1. Vide a plaint dated 12th August, 2025 the plaintiff/applicant instituted the instant suit seeking judgment against the defendants herein, jointly and severally for, an order of eviction of the defendants from the suit property.
2. As can be discerned from the averments/contentions in the plaint, the plaintiff’s suit/claim against the defendants is premised on the ground that the plaintiff is the lawful owner of the parcels of land known as L.R Nos. Mutara/Thome Block 4/1880, 1538, 1908, 1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918 and 1919, in aggregate measuring 106; that she (the plaintiff) had been in exclusive use and possession of the suit land until sometime in 2024 when some of the defendants illegally entered into the suit land and started constructing semi-permanent buildings thereon.
3. Vide paragraph 21 of the plaint, the plaintiff has deponed that despite demands made and intention to sue intimated, the defendants have failed, neglected and/or refused to cease interfering with the suit property.
4. Despite having expressly stated in his pleadings/plaint that some of the defendants have encroached into the suit property and erected semi-permanent structures thereon, the plaintiff through, the notice of motion/application, which is subject matter of this ruling, dated 11th May 2026, seeks leave of this Honourable court to effect service of Summons to Enter Appearance on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service namely, publication of advertisement in one of the local dailies.
5. The application is premised on the grounds that the whereabouts of the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants are unknown to the plaintiff; that despite all reasonable and diligent efforts, the plaintiffs cannot trace the defendants for service; that the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants are total strangers to the plaintiff and that the plaintiff is unable to direct a process server to the defendants for service.
6. The application is supported by the affidavit of the plaintiff’s advocate, Wanjira Mwaniki, sworn on 11th May 2026, on which the grounds on the face of the application are reiterated. Annexed to the supporting affidavit is a letter from the plaintiff/applicant’s advocate to the Land Registrar, Laikipia West, indicating that the plaintiff had written to the Ministry of Labour and Social Protection, Department of Social Development, seeking registration details of the Self Help Groups listed therein and requesting to be supplied with copies of registration certificates for the Self Help Groups listed in the letter. The deponent has also annexed the letter the plaintiff wrote to the Ministry of Labour and Social Protection, dated 27th February 2025.
7. Through the affidavit sworn in support of the application, the plaintiff/applicant further depones that efforts to trace the defendants through the office of the Chief Thome, Thome location, were futile.
8. The sole issue arising from the application is whether the applicant has made up a case for being granted leave to effect service on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service namely, publication of advertisement in one of the local dailies.
9. Regarding that issue, for the applicant to be granted leave to effect service on the 2nd, 3rd, 4th, 5th, 6th, 7th and 9th defendants by way of substituted service, the applicant must satisfy the principles/conditions set out in Order 5 rule 17 of the Civil Procedure Rules and restated in decided authorities.
10. In Ephraim Njugu Njeru vs. Justin Bedan Njoka Muturi & 2 others (2006) e KLR, the Court held that 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 for any other reason the summons cannot be served in the ordinary way, which is generally personal service.
11. In William Ngare vs Public Trustee & 10 others (2015) e KLR, the Court held that substituted service is a remedy of last resort and should only be granted after all reasonable and proper efforts have been made to trace and personally serve the respondent.
12. In Republic vs. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya (2016) e KLR, the High Court emphasized that an applicant must demonstrate due diligence in attempting personal service before making substituted service. The court stressed that substituted service is only available where personal service is impracticable.
13. Similar holdings were made in the case of Isaac Mwangi & another v Molyn Credit Ltd & 3 others (2021) e KLR where the Court reaffirmed that leave for substituted service is governed by Order 5 rule 17 and held that the Court must first be satisfied that personal service cannot be effected.
14. In Maina vs Lagat & 2 others (2024) KECA 395 (KLR), the Court of Appeal refused leave for substituted service because the applicant failed to produce evidence, including an affidavit from the process server, showing attempts at personal service. The court reiterated that substituted service is only available after genuine efforts to effect personal service has failed.
15. In applying the above cited guidelines/principles underpinning grant of leave to effect substituted service to the instant application, I have taken into account that the applicant has in his pleadings/plaint deponed that some of the defendants have encroached on parts of the suit property and erected semi-permanent buildings therein, I have also taken into account the claim or contention by the applicant that the defendants are unknown to her or are strangers to her, which claim or allegation is tantamount to a departure from the averment in her pleading that some of the defendants have encroached on the suit property and erected semi-permanent houses therein. Neither the applicant nor her advocate has offered explanation for the departure from the allegation in the plaint that some of the defendants have encroached onto the suit property and erected semi- permanent buildings thereon. The claim/allegations that efforts to reach the defendants through the area Chief, Thome Location, have been futile are not supported by any evidence of such effort. Moreover, there is no indication of any effort of serving the 9th defendant, a registered Savings and Cooperative Society through its registered office or indication of any efforts to serve it through its registered office as by law required.
16. I also take judicial notice of the fact that some of the defendants sought to be served, for instance, the 7th and 8th defendants, are none legal entities hence service of summons on them may be of no legal effect.
17. In view of the foregoing, I find and hold that the applicant has not made up a case for being granted the orders sought in the notice of motion application dated 11th May 2026. Consequently, I dismiss the application with no orders as to costs.
Ruling dated, signed and delivered at Nyahururu this 21st day of September, 2026 through Microsoft teams in the absence of the parties.
Court Assistant: Bedan