Salama Beach Hotel Ltd v Mario Rossi [2014] KEELC 400 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the consent of 6th June 2011 covered the entire Villa number 6 or only the upper floor
The consent covered the entire Villa number 6, as it was informed by the Defendant's defence and documents showing he owned the whole Villa; the Plaintiff failed to prove it owned the ground floor
The court traced the consent to the Defendant's Defence and Counter-claim, the letter of Mr. Guido Bertoni acknowledging the Defendant's ownership of Villa number 6, the agreement in respect of Gede/Dabaso/762, and the map showing Villa number 6 as owned by the Defendant. The Plaintiff's own pleadings denied parting with any interest, and the 2009 Burn and Fawcett report did not state the Defendant owned only the top floor. The burden lay on the Plaintiff to prove otherwise.
The value of Villa number 6 for purposes of actualising the consent
The court adopted the report of Paul Wambua Valuers and fixed the replacement cost of the Villa at Kshs. 14,000,000, exclusive of land and of soft furnishings assessed separately at Kshs. 2,500,000
The Defendant's valuer gave a detailed description of the Villa, based his valuation on replacement cost analysis, excluded land and valued furnishings separately, and his instructions matched the court order. The Plaintiff's valuer admitted on cross-examination that he valued only the upper floor, was not aware of the court order, and his report did not state his claimed replacement cost of the entire Villa, rendering it unreliable.
Legal principles established
#- A consent order recorded by parties is enforced according to its terms as informed by the parties' own pleadings and averments, and a party alleging that only a portion of a property was covered bears the burden of leading evidence to that effect
- Where a party's expert valuation does not comply with the court's order or the matter referred for valuation, the court cannot rely on it
Court orders
#- 1.The Plaintiff to pay the Defendant Kshs. 14,000,000 being the replacement cost of Villa number 6 situated at the Plaintiff's premises, in satisfaction of the consent recorded on 6th June 2011
- 2.The Plaintiff to pay the Defendant the costs of the suit
- Jurisdiction invoked
- Original civil suit and counter-claim relating to land (Plot number 9890 Watamu / LR 9890 (CR 11576)) within the jurisdiction of the Environment and Land Court; enforcement of a consent recorded in the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salama Beach Hotel Ltd v Mario Rossi [2014] KEELC 400 (KLR)", Case Analysis (2014). Malindi ELC Case (Plaint dated 23rd July 2010) - Plot number 9890 Watamu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/400/eng@2014-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.