Automated Summary
Key Facts
The case involves an eviction application by Maurizzio Marino against Nelson Riccardo Passoto for non-compliance with a 2015 sale agreement. The parties exchanged properties, but the respondent failed to complete payments, leading to a 2016 lawsuit dismissed with costs. The applicant now seeks eviction under Section 152E of the Land Law Amendment Act, but the court dismissed the application, ruling that eviction was not a remedy under the agreement and the respondent is not a trespasser.
Transaction Type
2015 sale agreement for property exchange between Marino and Passoto
Issues
- Whether the applicant is entitled to an order of eviction under Section 152E of the Land Law Amendment Act, 2016, given the parties' sale agreement and the court's prior findings that the respondent is not a trespasser but a party to a contract, with no provision for eviction in the agreement.
- Whether the issues raised in the application are res judicata, considering the prior case (Malindi ELC No 246 of 2016) and the legal principles outlined in Bernard Mugo Ndegwa V James Nderitu Githae and others [2010] eKLR.
Holdings
- The court determined that the current application is not res judicata. The issues raised in this case differ from those in the previously dismissed suit (Malindi ELC No 246 of 2016). The court emphasized that the parties’ agreement did not provide for eviction as a remedy, and the applicant’s claim to evict the respondent is not supported by the contract terms. The court also highlighted that the respondent is not a trespasser under Section 152E of the Land Law Amendment Act 2016, as the parties voluntarily exchanged properties under their agreement.
- Eviction was denied as it would result in unjust enrichment. The court ruled that enforcing the agreement’s terms requires settling the remaining payment rather than evicting the respondent. The applicant cannot claim trespass since the respondent partially transferred property to fulfill the bargain, and the applicant has not offered to return the exchanged property. The court cited legal principles that it cannot rewrite contracts between parties unless coercion, fraud, or undue influence is proven, which was absent here.
Remedies
The application dated November 28, 2022 was dismissed with costs to the respondents. The court ruled that the applicant's request for eviction was not available as the parties had already exchanged properties under their agreement and the respondent had partially fulfilled his obligations. The applicant was ordered to execute the decree from the prior case (ELC No. 246 of 2016) to settle the outstanding balance rather than seeking eviction.
Legal Principles
- The court emphasized that parties are bound by the terms of their contract unless fraud, coercion, or undue influence is proven. The sale agreement explicitly outlined remedies for non-payment, and eviction was not a contractual remedy available to the applicant.
- The court determined that the current application was not res judicata as the issues raised were different from those in the previous suit (Malindi ELC No 246 of 2016). Res judicata requires identical issues, same parties, same title/claim, concurrent jurisdiction, and finality of the prior decision, none of which were met here.
Precedent Name
- David Sironga Ole Tukai vs Francis Arap Muge & 2 others
- Babadurali Ebrabim Shamji v Al Noor Jamal & 2 Others
- Nelson Riccardo Pasotto v Maurizio Marino
- National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd
- Bernard Mugo Ndegwa V James Nderitu Githae and 2 Others
- Mashreq Bank P.S.C V Kuguru Food Complex Limited
- Kennedy Mokua Ongiri v Jogn Nyasende Mosioma & Florence Nyamoita Nyasende
- Fina Bank Ltd vs Spares and Industries Ltd
Key Disputed Contract Clauses
The sale agreement's Clause 7 specified that the applicant's remedy for the respondent's default was to sue for the unpaid purchase price, but did not include eviction as a contractual remedy. The court ruled that this clause bound the parties and precluded the applicant from seeking eviction, as the agreement did not provide for such a remedy. The court emphasized that it cannot rewrite contracts unless fraud, coercion, or undue influence is proven, which was absent here.
Cited Statute
Land Law Amendment Act, 2016
Judge Name
EK MAKORI
Passage Text
- The applicant has a decree against the respondent, which should be executed settling the parties' bargain. Eviction in the manner sought here will not be allowed by the operations of the law. The respondent is not a trespasser as envisaged in Section 152E of the Land Law Amendment Act 2016.
- The application dated November 28, 2022 is hereby dismissed with costs to the respondents.
- A Court of law cannot rewrite a contract between parties. The parties are bound by the terms of their Contract, unless coercion, fraud or undue influence are pleaded and proved.
Damages / Relief Type
Eviction sought for non-payment of Kshs 400,000/=