[2022] KEHC 10326 (KLR)

Accredo AG v Viaggi Del Ventaglio Spa & 4 others (Civil Case E270 of 2019) [2022] KEHC 10326 (KLR) (Civ) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10326 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E270 of 2019

DO Chepkwony, J

July 5, 2022

Between

Accredo AG

Plaintiff

and

Viaggi Del Ventaglio Spa

1st Defendant

Ventaglio International SA

2nd Defendant

Arcuri Ignazio

3rd Defendant

D. Ssa Dal Moro Magdalena

4th Defendant

Avv.De Cesari Patrizia

5th Defendant

Ruling

1. This is a ruling in respect of an exparte Notice of Motion application dated 3rd February, 2022 by the Plaintiff herein seeking for orders that;a)Spent;b)The Summons to Enter Appearance issued herein on 3rd September, 2019 be extended for further period of twelve (12) months;c)Upon the grant of prayer 2 above, the court be pleased to grant leave to the Plaintiff to effect service of the Summons, Plaint and other Court processes upon the 3rd, 4th and 5th Defendants out of Kenya in Milan Italy on their below addresses;i.Dr. Arcuri IgnazioCertified Public AccountantVia Cardinal Federico, 120123 MilanTel: 02/878789/ Fax 02/878849ii.Avv.De Cesari Patrizia,Attorney at law,Via L. Mancini, 120129 MilanoTel: 02/5457343/ Fax 02/5465513iii.D. Ssa Dal Moro MagdalenaCertified Public Accountant,Via San Pietro All’ Orto, 2220121 Milan,Tel. 02/36684000/ Fax 02/36684009d)Costs of the Application be provided for.

2. The Application is premised on the grounds on its face and the depositions in the Supporting Affidavit of Hans Juergen Langer sworn on 3rd February, 2022. It is stated therein that”-a.The Plaintiff holds a Judgment against the 1st Defendant from Milan Tribunal Civil Case No.62662/2001 and as confirmed by the Milan Court of Appeal Judgment No.4510/10 and that the decretal sum accrued together with interests from 2001 stands at Euros 8,135,096. b.The 2nd Defendant is wholly owned by the 1st Defendant and which is the proprietor of the Salama Beach Hotels in Kilifi County in Kenya.c.The 1st and 2nd Defendants are now in receivership in Italy and the 3rd, 4th and 5th Defendants are Receivers of the 1st and 2nd Defendants who are actively litigating on their behalf.d.The Plaintiff seeks to attach the only remaining immovable assets of the 1st and 2nd Defendants which is the land and structures upon which the Salama Beach Hotel Limited is situate in Kenya.e.The 3rd 4th and 5th Defendants’ postal and residential address in Italy is known and that it will be easier to locate and effect service upon them.f.Summons to enter Appearance expired while the court was hearing the Application by the Plaintiff for leave to effect service by way of email.g.It is necessary to bring the Defendants within the jurisdiction of this court in order to advance the interest of justice.

3. It is an exparte application. However, the Plaintiff filed written submissions which I have read and considered.

4. The governing law for the nature of orders that have been sought for by the Plaintiff is Order 5 Rule 2 (1) – (7) of the Civil Procedure Rules which provides as follows:“(1) A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons.(2) Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so.(3) Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended.(4) Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.(5) An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or Plaintiff in person being heard.(6) As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.(7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.”

5. The validity of the summons in the case at hand was for a period of 12 months. Order 5 rule 2 of the Civil Procedure Rules gives the court the discretion to extend the validity of the summons from time to time if it is satisfied it is just to do so (See for example James Muniu Muchere –vs- National Bank of Kenya Ltd [2010] eKLR and Tropical Foods International & Another –vs- Eastern and Southern African Trade Development Bank & Another [2017] eKLR).

6. In consideration of the grounds set out in the affidavit sworn by Hans Juergen Langer on 3rd February, 2022 as reiterated in the written submissions, I am satisfied that it is in the interest of justice to extend the summons to enter appearance issued on 3rd September, 2019 for a further twelve months.

7. Service of Summons outside Kenya when the whole of the subject matter of the suit property is immovable and situate in Kenya is provided for under Order 5 Rule 21(a) and it provides;Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever—a.the whole subject-matter of the suit is immovable property situate in Kenya (with or without rents and profits);

8. The Plaintiff has indicated that the 3rd, 4th and 5th Defendants, who are Receiver Managers of the 1st and 2nd Defendant are all resident and working in Milan Italy. The property in question is the Salama Hotel in Kilifi County here in Kenya which is an immovable property. I find that the Plaintiff’s prayer for service of summons outside Kenya falls within the purview of Order 5 Rule 21(a) and is therefore allowed.

9. The upshot of the foregoing is that the Application herein is merited and the same is allowed as prayed. The Plaintiff to bear its own costs.Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED and SIGNED at NAIROBI this 5th day of JULY, 2022. D. O. CHEPKWONYJUDGEIn the presence of:No appearance for and by either partyCourt Assistant - Sakina