[2016] KEHC 6914 (KLR)
The court found that the plaintiffs had not provided evidence that the 2nd defendant was a Kenyan citizen or that service by advertisement within Kenya would be proper. The court accepted the 3rd and 4th defendants' argument that the 2nd defendant is ordinarily resident abroad and that the plaintiffs must comply...
Source-derived case information.
- Citation
- [2016] KEHC 6914 (KLR)
- Parties
- Plaintiff: Michele Caliendo; Plaintiff: Maurizio Carlo Besana; Defendant: Sun Reef Ltd; Defendant: Di Vita Giusepe; Defendant: Registrar of Titles Mombasa; Defendant: Mariangela Alterini; Defendant: Francesco Velroni
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 101 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Substituted Service
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Substituted Service, Service Out of Jurisdiction, Amended Pleadings, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michele Caliendo
Plaintiff
Maurizio Carlo Besana
Plaintiff
Sun Reef Ltd
Defendant
Di Vita Giusepe
Defendant
Registrar of Titles Mombasa
Defendant
Mariangela Alterini
Defendant
Francesco Velroni
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Substituted Service
Legal Issues
- 1 Whether the plaintiffs should be granted leave to serve the 1st and 2nd defendants the amended plaint by way of substituted service.
- 2 Whether service by advertisement is proper where the defendant is ordinarily resident abroad.
Ratio Decidendi
The court found that the plaintiffs had not provided evidence that the 2nd defendant was a Kenyan citizen or that service by advertisement within Kenya would be proper. The court accepted the 3rd and 4th defendants' argument that the 2nd defendant is ordinarily resident abroad and that the plaintiffs must comply with the procedure for service out of jurisdiction as set out in Order 5 Rules 21 and 29 of the Civil Procedure Rules. Consequently, the application for leave to serve by substituted service was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 13th July, 2015 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.101 OF 2011
1. MICHELE CALIENDO
2. MAURIZIO CARLO BESANA....................................................PLAINTIFFS
=VERSUS=
1. SUN REEF LTD
2. DI VITA GIUSEPE
3. REGISTRAR OF TITLES MOMBASA
4. MARIANGELA ALTERINI.........................................................DEFENDANTS
5. FRANCESCO VELRONI...................................... INTENDED DEFENDANTS
R U L I N G
1. What is before me is the Application by the Plaintiffs dated 13th July, 2015 seeking for the following orders:
(a) That the Plaintiffs be granted leave to serve the 1st and 2nd Defendants the amended Plaint by way of substituted service either through a newspaper with the widest national circulation or their last known address.
(b) THAT the costs of this application be provided for.
2. The Application is premised on the grounds that despite all reasonable and diligent efforts, the Plaintiff's advocates have been unable to effect service of the amended Plaint upon the 1st and 2nd Defendants.
3. According to the Plaintiffs, the whereabouts of the 1st and 2nd Defendants are unknown and that despite all reasonable and diligent efforts, they cannot be traced.
4. According to the Replying Affidavit of the 3rd and 4th Defendant's Attorney, service on the 2nd Defendant ought to be done through the process set out for service of process on the person who is ordinarily resident abroad.
5. The Plaintiffs have not denied the 3rd and 4th Defendants' deposition that the 2nd Defendant is a person who is ordinarily resident abroad. Indeed, there is no evidence to show that the 2nd Defendant is a Kenyan citizen and that service by way of advertisement will be proper.
6. Consequently, the Plaintiffs should endevour to comply with the provisions of Order 5 Rules 21 and 29 of the Civil Procedure Rules which provides on how service of process out of the jurisdiction of Kenya is done.
7. For those reasons, I dismiss the Application dated 13th July, 2015 with no orders as to costs.
Dated and delivered in Malindi this 19th day of February, 2016.
O. A. Angote
Judge