Michele Caliendo & Maurizio Carlo Besana v Sun Reef Ltd, Di Vita Giusepe, Registrar of Titles Mombasa, Mariangela Alterini & Francesco Velroni [2016] KEHC 6914 (KLR)

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