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ELCPartially AllowedOriginating Summons dated 24th April 2019, filed 2nd May 2019 (Malindi)· [2020] KEELC 2409 (KLR)

Vittici Camillo v Zubedi Beach Properties Limited [2020] KEELC 2409 (KLR)

Environment and Land Court
27 May 2020
JOJ.O. Olola
892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ordered that a sub-lease be signed on behalf of a company whose directors had died, letting the buyer finally own his Malindi apartment.

What this practically means

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Executive summary

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Dr. Vittici Camilo, the Applicant, brought an Originating Summons under Order 37 Rule 3 of the Civil Procedure Rules seeking an order that the Registrar in Charge of the Environment and Land Court or other appropriate officer execute a Sub-Lease for Apartment No. 503 erected on Land Portion No. 10851/1 Malindi in his favour or that of his nominee, Cristina Vittici. The Applicant deponed that on 1st March 2014 he purchased the apartment from M/s Overlook Management Kenya Ltd, which held a general power of attorney to sell the Respondent's property, for Euro 50,000; that the Respondent, Zubedi Beach Properties Ltd, was the registered lessee of the land under a 99-year lease from 1st April 1986; that both directors of the Respondent, Marco Vancini and Raimondi Raimondi, had since died leaving no one to execute the transfer; and that he had remained in continuous occupation and met all outgoings. The Summons was served on the Respondent by registered mail under Section 1010(1) of the Companies Act, 2015 but drew no response, so the Applicant's averments stood uncontroverted. The court, OLOLA J, found a valid Sale Agreement of 1st March 2014 uncontested, held the Summons had merit, and allowed it in terms of Prayer No. 1 only, making no orders as to costs. Judgment delivered at Malindi on 27th May 2020.

Key legal issues

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01

Whether the court should order execution of the Sub-Lease in favour of the Applicant

Holding

The court was satisfied the Originating Summons had merit and allowed it in terms of Prayer No. 1, directing execution of the Sub-Lease for Apartment No. 503 to the Applicant or his nominee.

Reasoning

The Originating Summons was served on the Respondent company by registered mail under Section 1010(1) of the Companies Act, 2015 but elicited no response, leaving the Applicant's averments uncontroverted. The court found it uncontested that a valid Sale Agreement of 1st March 2014 existed under which the Respondent sold Apartment No. 503 to the Applicant for the remainder of its 99-year lease from the Government commencing 1st April 1986. Both directors of the Respondent had died, leaving no one to execute the transfer, hence the need for the court-ordered execution.

p. 2

Legal principles established

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  • A purchaser of immovable property may, under Order 37 Rule 3 of the Civil Procedure Rules, take out an Originating Summons for determination of questions arising out of or connected with the contract of sale.

Court orders

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  1. 1.The Originating Summons is allowed in terms of Prayer No. 1 - that the Registrar in Charge of the Environment and Land Court or other appropriate officer of the Court do execute the Sub-Lease for the property known as Apartment No. 503 erected on Land Portion No. 10851/1 Malindi to the Applicant or his nominee Cristina Vittici
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 3
  • Companies Act, 2015Section 1010(1)
Jurisdiction invoked
Order 37 Rule 3 of the Civil Procedure Rules

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, "Vittici Camillo v Zubedi Beach Properties Limited [2020] KEELC 2409 (KLR)", Case Analysis (2020). Originating Summons dated 24th April 2019, filed 2nd May 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2409/eng@2020-05-27

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