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ELCPartially AllowedELC No. 167 of 2014 (formerly Mombasa HCCC No. 485 of 1998; Malindi HCCC No. 5 of 2002; Mombasa HCCC No. 247 of 2007)· [2019] KEELC 1244 (KLR)

Geranium Investment Ltd v Bruno Valbonesi & another [2019] KEELC 1244 (KLR)

Environment and Land Court
24 October 2019
3,999 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Geranium Investment Ltd sued Bruno Valbonesi and Alessio Valbonesi for breach of a written agreement dated 5th July 1995 for the sale of one of two villas on Portion No. 4151/3 Malindi for Italian Lira 500,000,000/-. The Plaintiff sought injunctions, a mandatory injunction to demolish illegal works, mesne profits, vacant possession (or alternatively Lira 358,943,500/-) with interest and costs. It alleged that only the deposit and the first instalment of the promissory notes were honoured. The Defendants denied breach, contended the villa was handed over incomplete and unfit for habitation, that they spent Kshs 2.8 Million completing it, and that further payments including a house in Lido di Camaiore, a Land Rover and payments through Carla Bichi were made. They counterclaimed for general damages. The suit had a chequered history, being transferred between Mombasa and Malindi and tried piecemeal by Sergon J, Angote J and finally Olola J, who decided it on the typed proceedings without hearing the witnesses. The court found the Defendants in breach of Clause 3b of the Agreement, holding they proved no payments beyond the deposit, the first instalment and the Lira 42,000,000/- house proceeds. Applying Attorney General v Halal Meat Products Ltd, the court awarded mesne profits of Lira 10,000/- per month from filing until vacant possession, dismissed the Counterclaim, entered judgment for the Plaintiff jointly and severally as prayed, and awarded the Plaintiff the costs of both the suit and the Counterclaim.

Key legal issues

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01

Breach of the sale agreement by dishonoured instalments

Holding

The Defendants were in breach of Clause 3b of the Agreement; the breach entitled the Plaintiff to vacant possession

Reasoning

Of the 21 promissory notes of Lira 15,000,000/- each, only the first was honoured. The only other payment acknowledged was the Lira 42,000,000/- proceeds from the Italian house. Alleged payments via Carla Bichi and the valuation of the Italian house at Lira 170,000,000/- were unsupported by documents. Clause 3b provided that non-payment of any instalment nullified the Agreement.

p. 5
02

Defendants' claim for completion costs and Counterclaim damages

Holding

The Counterclaim failed for want of proof; the Defendants bore the burden of evidencing the expenditure and payments

Reasoning

The Defendants asserted Kshs 2.8 Million completion costs and total payments of Lira 450,000,000/- but produced no documentary evidence. The Motor vehicle offered as part payment was rejected for want of a log book. Nothing would have been easier than producing proof of the alleged payments.

p. 5
03

Mesne profits for wrongful occupation

Holding

Mesne profits awarded at Lira 10,000/- per month from filing of the suit until vacant possession, notwithstanding the claim for Lira 30,000/- per month

Reasoning

Following the Court of Appeal in Attorney General v Halal Meat Products Ltd, the Plaintiff, wrongfully deprived of its property for the 20-year period of occupation, was entitled to mesne profits. The court moderated the quantum claimed from Lira 30,000/- to Lira 10,000/- per month.

p. 5

Legal principles established

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  • A person wrongfully deprived of property is entitled to damages known as mesne profits for the period of wrongful occupation

Court orders

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  1. 1.The Defendants' Counterclaim is dismissed
  2. 2.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint, save for the assessment of mesne profits
  3. 3.Mesne profits awarded at Lira 10,000/- per month from the time the suit was filed until vacant possession is granted
  4. 4.The Plaintiff to have vacant possession of the premises
  5. 5.The Plaintiff awarded costs of the suit and of the Counterclaim

Authorities

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Cases cited (1)

  • Attorney General –vs- Halal Meat Products Ltd
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction over a land sale and possession dispute, transferred to and tried by the Environment and Land Court at Malindi

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, "Geranium Investment Ltd v Bruno Valbonesi & another [2019] KEELC 1244 (KLR)", Case Analysis (2019). ELC No. 167 of 2014 (formerly Mombasa HCCC No. 485 of 1998; Malindi HCCC No. 5 of 2002; Mombasa HCCC No. 247 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1244/eng@2019-10-24

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