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ELCOtherMalindi HCCC No. 24 of 2008 (as referenced; Plaint dated 26th February 2008)· [2015] KEELC 157 (KLR)

Naomi Michelle Levy v Giuseppe Bolzoni [2015] KEELC 157 (KLR)

High Court of Kenya
30 October 2015
OAO. A. Angote
2,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan buyer who stopped paying instalments lost her deposit and the Malindi apartments after the court upheld the seller's lawful rescission.

What this practically means

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Executive summary

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The Plaintiff sued by plaint dated 26th February 2008 seeking a re-amendment of the purchase price, an order to demolish an offending building constructed by a neighbour, Mr. Tanzini, and repairs to two apartments and a garage on L.R. No. 651 Malindi which she had agreed to purchase from the Defendant under two agreements of 14th November 2006 for 320,000 and 160,000 Euros. She alleged non-disclosure of an agreement between the Defendant and Tanzini permitting construction that damaged the properties. The Defendant filed a defence and counter-claim seeking an injunction, declarations of rescission and forfeiture of the deposit, special damages, vacant possession and mesne profits. The Plaintiff's suit was dismissed for non-attendance on 8th July 2015 under Order 12 Rule 3(1) of the Civil Procedure Rules after earlier proceedings had been set aside, and the Defendant prosecuted her counter-claim. Silvia Lucia Bolzoni, DW1, administratrix of the late Defendant's estate, testified that the Plaintiff herself authorised Tanzini's construction by a handwritten agreement of 6th April 2007 and refused to pay the installments. The court found no evidence of any agreement between the Defendant and Tanzini, held that the Plaintiff breached the sale agreements by refusing to pay the first installment without issuing the contractual 21-day notice, and held the Defendant entitled to rescind and forfeit the deposit. The counter-claim was allowed with a permanent injunction, declarations of rescission, forfeiture and ownership, with costs to the Defendant; mesne profits were refused for lack of evidence.

Key legal issues

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01

Breach of the sale agreements of 14th November 2006

Holding

The Plaintiff breached the agreements by refusing to pay the first installment due in December 2007.

Reasoning

After paying the deposit, the Plaintiff refused to pay the first installment, citing an alleged undisclosed agreement between the Defendant and Mr. Tanzini. The court found no evidence of any such agreement by the Defendant with Tanzini; the handwritten agreement of 6th April 2007 permitting Tanzini's construction was made by the Plaintiff herself after executing the sale agreements. Even if an agreement existed, the Plaintiff should have issued a 21-day notice under clause 7.2 rather than refusing to complete.

p. 5
02

Rescission and forfeiture of deposit

Holding

The Defendant lawfully rescinded the agreements and forfeited the deposit after issuing completion notices that went unheeded.

Reasoning

The Defendant served a completion notice dated 10th December 2007 giving 21 days to comply, followed by a rescission and forfeiture notice. The Plaintiff did not comply, and the Defendant's advocate confirmed rescission and forfeiture on 12th February 2008, consistent with the contractual clause permitting forfeiture of the deposit upon the purchaser's failure to remedy default within 21 days.

p. 5

Legal principles established

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  • Where a purchaser fails to comply with the conditions of a sale agreement, the vendor is entitled, after 21 days' notice, to rescind the sale and forfeit the deposit pursuant to the contract terms.

Court orders

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  1. 1.Permanent injunction restraining the Plaintiff, her servants and/or agents from remaining on or continuing in occupation of Apartment number 6 and garage E and Apartment number 6B on L.R. No. 651 Malindi.
  2. 2.Declaration that the Agreements of 14th November 2006 have been duly rescinded.
  3. 3.Declaration that the deposit paid by the Plaintiff to the Defendant has been forfeited.
  4. 4.Declaration that the Defendant is the legal owner of Apartment number 6, 6B and garage E situated on L.R. No. 65, Malindi.
  5. 5.Plaintiff to pay to the Defendant the costs of the counter-claim.

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 12 Rule 3(3)
Jurisdiction invoked
Original civil jurisdiction of the High Court over the claim and counter-claim (Civil Procedure Act and Rules); the judgment does not cite a specific enabling provision.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Naomi Michelle Levy v Giuseppe Bolzoni [2015] KEELC 157 (KLR)", Case Analysis (2015). Malindi HCCC No. 24 of 2008 (as referenced; Plaint dated 26th February 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/157/eng@2015-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.