Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 18th June 2018 (Malindi ELCC suit, number not stated in judgment)· [2019] KEELC 1737 (KLR)

Nardielo Maurizio & 3 others v Tropicana Hotels Limited [2019] KEELC 1737 (KLR)

Environment and Land Court
20 September 2019
JOJ.O. Olola
1,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Malindi court forced Tropicana Hotels to hand over the land title after finding the buyers had fully paid for their portion of the property.

What this practically means

#

Executive summary

#
This was a ruling on a Notice of Motion dated 18th June 2018 in an Environment and Land Court suit at Malindi, in which the Plaintiffs sought orders compelling the Defendant, Tropicana Hotels Ltd, and its directors to surrender the original Certificate of Title for Portion No. 775 (Original No. 703/18) CR 9775/25, approximately 7.50 acres, to enable them to sub-divide and 'hip out' the portion occupied by Club 28, purchased under a Sale Agreement dated 26th July 2003 for Euro 150,000/-. The Plaintiffs alleged full payment by 2008 and that the Defendant refused to deliver the title under Clause 6 of the Agreement. The Defendant opposed, arguing the Agreement was null and void for want of authority of the 1st Plaintiff and improper execution, that the nominee company Na.Mi Ital Ltd's directors should have executed it, that part of the purchase price deposited in court was misappropriated by court officials, that the property was charged to SBM Bank Ltd, and that the Agreement had been rescinded with sums forfeited. The court held that a valid, properly executed contract existed; that payments made between 2003 and 2008 were accepted without any objection to the payers' authority; and that the alleged misappropriation was not a valid reason to negate the contract, the Defendant having recourse elsewhere. The court dismissed the Defendant's defences as excuses to avoid its obligations. Allowing the application in terms of Prayers 2, 4 and 5, the court ordered surrender of the title for sub-division, permitted the Plaintiffs to continue in occupation and carry out major and minor repairs, and awarded the Plaintiffs the costs of the application. Judgment was delivered at Malindi on 20th September 2019 by J.O. Olola, Judge.

Key legal issues

#
01

Validity of the Sale Agreement of 26th July 2003

Holding

The Agreement is valid and enforceable; the Defendant's objections as to execution and authority are mere excuses.

Reasoning

The court found the contract was properly executed between the Plaintiffs as Purchaser and the Defendant as Vendor. The Defendant accepted payments between 2003 and 2008 without ever questioning the payers' authority or capacity, which contradicts its later objection that the 1st Plaintiff lacked a Power of Attorney and that Na.Mi Ital Ltd's directors should have executed the Agreement. The court characterised the defences as excuses conjured up to avoid contractual obligations.

p. 3
02

Whether the purchase price was paid in full

Holding

The court found on the material before it that the Applicants made full payment of the purchase price.

Reasoning

Payments were made between 2003 and 2008, a span of five years, and were accepted by the Defendant. The Defendant's assertion that part of the money deposited in court was misappropriated by court officials was dismissed: the Defendant did not state how much money was misappropriated, and even if true, misappropriation would not negate the contract since the Defendant would have recourse elsewhere. The parties had also agreed on settlement of the balance in prior High Court proceedings.

p. 3

Legal principles established

#
  • Where a vendor accepts payments over a period of years without objecting to the payer's authority, it cannot later resist performance of the contract on grounds of want of authority of the purchasers.
  • Misappropriation of funds paid through the court is not a valid reason to negate a contract; the affected party has recourse elsewhere.

Court orders

#
  1. 1.The Defendant and its directors compelled to surrender the original Certificate of Title being Portion No. 775 (Original No. 703/18) CR 9775/25 of approximately 7.50 acres to enable the Applicants to apply for sub-division and hip out the portion occupied by Club 28 (Prayer 2)
  2. 2.The Applicants allowed to carry out sub-division on Portion No. 775 (Original No. 703/18) (CR 9775/25) and hip out the portion occupied by Club 28 without the Mother Certificate of Title (Prayer 4)
  3. 3.The Applicants to continue in occupation and be allowed to carry out major and minor repairs (Prayer 5)
  4. 4.The Plaintiffs awarded the costs of the application
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the interlocutory application in a land dispute (not expressly stated in judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nardielo Maurizio & 3 others v Tropicana Hotels Limited [2019] KEELC 1737 (KLR)", Case Analysis (2019). Notice of Motion dated 18th June 2018 (Malindi ELCC suit, number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1737/eng@2019-09-20

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