Struggling retail chain Nakumatt Holdings has suffered a setback after its appeal to have an order issued last year directing it to vacate its former premises at City Mall in Mombasa set aside, was dismissed.
The Court of Appeal ruled that it was in agreement with an Environment and Land Court (ELC) judge that the dispute between Nakumatt and its former landlord Ideal Locations Ltd was a matter under the jurisdiction of the environment court.
Appellate judges Daniel Musinga, Gatembu Kairu and Agnes Murgor further ruled that considering that the application for an administration order had been dismissed by the High Court on November 16 2017, the ELC judge cannot be faulted for proceeding with the case before him.
“As at the time the ELC suit was filed, the provisions of Section 560 of the Insolvency Act were not applicable,” said the judges.
The Appellate Court noted that Nakumatt had pointed out that on January 22 last year, an administration order was granted by the High Court but it was also the same date the case before the ELC was concluded.
“There is no evidence that the order of the High Court was brought to the attention of the judge who on the same day reserved his ruling, the subject of this appeal,” said the Appellate Judges.
According to the judges, it was incumbent upon Nakumatt to bring the issue to the attention of the ELC, which they did not.
In its appeal, Nakumatt also wanted all proceedings and orders given following an application by Ideal Locations Ltd, after the commencement of an insolvency suit in Nairobi, set aside.
Through lawyer Mutiso Ngonze, the retailer argued that the ELC did not have jurisdiction to hear and determine the application by Ideal Locations Ltd against it.
On March 5 last year justice Charles Yano of the ELC ordered Nakumatt to vacate City Mall premises and as well as pay Sh27.8 million in outstanding rent, service charge and promotion fund as of November 1 2017.