1. This is an ex-parte Notice of Motion dated 27th November 2025 brought under Order 5 Rules 17 and 18 of the Civil Procedure Rules, 2010, and Sections 1A, 1B, and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya. The Applicant seeks the following substantive orders:
a) Leave to serve the Defendant with the Summons to Enter Appearance and the pleadings herein through substituted service by way of advertisement once in a newspaper of nationwide circulation and/or by affixing the Summons and pleadings on a conspicuous part of the suit property (Land Parcel EVURORI/NTHAMBU/507) and/or placing the same on a conspicuous section of the court notice board.
b) Costs of the application be in the cause.
2. The application is supported by the affidavit of the Applicant, Peterson Ireri Muchiri, sworn on 27th November 2025, and the grounds set out on the face of the motion. In summary, the Applicant avers that he has been unable to effect personal service upon the Defendant despite diligent efforts. The Defendant's whereabouts have been unknown since 1995, as confirmed by a letter from the area chief annexed as "PM-2". The Applicant has made inquiries through the local administration and community members, but these have yielded no results. No address, contact information, or indication of the Defendant's location exists, rendering personal service impossible. The suit concerns a claim for adverse possession over Land Parcel EVURORI/NTHAMBU/507, registered in the Defendant's name, as evidenced by the official search and green card annexed as "PM-1".
3. I have carefully perused the application, the supporting affidavit, and the annexures thereto. Being an ex-parte application, I am satisfied that it is properly before the court for determination without notice to the Respondent, given the nature of the relief sought.
LEGAL ANALYSIS AND DECISION
4. The law governing service of summons and pleadings in civil proceedings is enshrined in Order 5 of the Civil Procedure Rules, 2010. Specifically, Rule 8 provides that every summons shall be served by or on behalf of the plaintiff personally upon the defendant, unless otherwise directed by the court. However, where personal service cannot be effected after due diligence, Rule 17 empowers the court to order substituted service in such manner as it deems fit, including by advertisement in a gazette or newspaper, affixing to the defendant's last known place of abode or business, or in any other manner that ensures the summons comes to the defendant's notice.
5. The threshold for granting substituted service was articulated by the Court of Appeal in *Trust Bank Ltd v Amin & Company Ltd & Another* [2000] eKLR, where it was held that the applicant must demonstrate that genuine and diligent efforts have been made to effect personal service, and that such efforts have failed. Substituted service is not to be granted lightly, as it affects the right to be heard under Article 50 of the Constitution of Kenya, 2010, but it is permissible where the ends of justice so require to prevent undue delay in proceedings, in line with the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
6. In the present case, the Applicant's affidavit deposes to sustained efforts since 1995 to trace the Defendant, including inquiries with the local administration and community. The chief's letter ("PM-2") corroborates that the Defendant has been missing since 1995, with no trace by family or community members. No evidence contradicts these averments, and I find that the Applicant has exercised due diligence as required under Order 5 Rule 17. Personal service is indeed impracticable, and failure to grant the orders sought would stall the suit indefinitely, contrary to the principles of expeditious justice.
7. In similar adverse possession claims involving absent registered owners, courts have routinely granted substituted service to facilitate progression of the matter. See, for instance, *Joseph Kibowen Chemweno v Daniel Kipruto Rotich [2014] eKLR, where substituted service by advertisement and affixing was allowed upon proof of the defendant's untraceable status.
8. Accordingly, I am persuaded that the application has merit. Prayer 2 of the Notice of Motion is hereby granted as prayed.
9. The Applicant to effect substituted service upon the Defendant by Advertising the Summons and a brief extract of the pleadings once in either the Daily Nation or the Standard newspapers
10. Upon compliance with paragraph 9 above, service shall be deemed to have been properly effected after the lapse of 14 days from the date of advertisement or affixing, whichever is later.
11. The Applicant shall file an affidavit of service within 21 days thereafter.
12. Costs of this application shall be in the cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 19TH DAY OF FEBRUARY, 2026.
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JUDGE
ENVIRONMENT AND LAND COURT AT EMBU
In the presence of;
1. Mr. Muthomi H/B Dickson Shem for the Applicant.
2. Respondent/Applicant-N/A
3. Diana C/A.
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