Justice Eric Ogola dismissed the application by Mr Shah saying it was within the purview of the Environment and Land Court (ELC).
However, Ideal Locations Ltd opposed the application saying the court lacked jurisdiction to hear the case and that it ought to be heard by the environment court.
Nakumattt's bid to challenge the process in which a decree was issued leading to eviction of the supermarket from City Mall in Mombasa hit a snag Friday at the High Court.
The retailer's managing director, Atul Shah, is challenging the process through which a court decree was issued leading up to the eviction from City Mall.
Justice Eric Ogola dismissed the application by Mr Shah saying it was within the purview of the Environment and Land Court (ELC).
The judge said there is a ‘live matter’ in the environment court on the same issue hence even the High Court had concurrent jurisdiction (with the ELC) and prudence would require the case to be heard and determined in one court.
“The current proceedings in this court if allowed to continue can only add confusion to the matter in the ELC with a possibility of conflicting decision,” ruled Justice Ogola.
Mr Shah wanted the court to quash proceedings approving the decision by the Deputy Registrar, High Court Mombasa executing and sealing it (Decree) without regard to due procedure.
The businessman also wanted an order compelling the Deputy Registrar to approve, execute, and seal a proper decree with regard to due procedure as provided by the law.
The ELC had issued an order directing the supermarket vacate the premises following an application by Ideal Locations Ltd, the owners of the mall.
The environment court also directed Nakumatt to pay Ideal Locations Ltd Sh27.8 million being outstanding rent, service charge and promotion fund as of November 1 last year.
Through lawyer Mutiso Ngoze, Mr Shah argued that the Deputy Registrar had failed, refused or neglected to discharge its mandate within the confines of justice, equity fairness and the rule of law as enshrined in the constitution.
The applicant further claimed that the Deputy Registrar expressly infringed upon his constitutional rights of equality and freedom from discrimination, human dignity, freedom and security of the person and protection of right to property.
Mr Shah argued that they have a substantially credible claim against the impugned decree which ought to be ventilated prior to complete ejection from the premises.
“Unless the court grants orders sought, with the urgency they merit, Nakumatt Holdings Ltd and I will suffer substantial loss through wastage of their goods as well as disruption of their commercial enterprises,” said Mr Shah in his affidavit.
However, Ideal Locations Ltd opposed the application saying the court lacked jurisdiction to hear the case and that it ought to be heard by the environment court.
Through lawyer Willis Oluga, it further said that ELC Act provides that a party aggrieved by a decision of the Deputy Registrar could apply for a review at the environment court and not the High Court.
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