Troubled Nakumatt Supermarket Friday received a reprieve after the High Court in Mombasa reversed its order that saw it evicted from a Mall in Nyali three months ago.
Justice Charles Yano lifted the order he issued on March 5, this year ordering the Supermarket to either vacate or be forcibly evicted by the land over Sh27.8 m rent arrears.
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Friday the Judge said the supermarket can now occupy the premise within 30 days after paying the outstanding balance. The supermarket says it has paid Sh10 million.
"The applicant (Nakumatt) shall pay to the respondent (Ideal Location Limited) the outstanding rent arrears within 30 days from the date of ruling. Upon compliance, the applicant to be reinstated into the suit premises and thereafter pay rent whenever it falls due," ruled Justice Charles Yano
He however said that failure by Nakumatt to pay the outstanding rent arrears, Ideal Location Limited is at liberty to allow a new tenant to take up the occupation of the suit premises.
In March 14 2018 Nakumatt Holdings Limited Chief Executive Officer CEO Atul Shah moved to the High Court seeking reinstatement into the Nyali City Mall after he was thrown out.
Shah through his lawyer D. Ngoze sought a review of orders issued by Justice Charles Yano on March 5 2018 allowing Ideal Location Limited to evict Nakumatt Supermarket their tenants since June 14 2009.
Justice Yano had found Nakumatt in breach of the sub-lease agreement dated June 14 2009 with Ideal Location Limited and accumulated arrears amounting to a tune of sh. 27, 812, 108 as at November 1 2017.
"An order is hereby issued directed at the first defendant Nakumatt to immediately vacate the premises situated on the building known as City Mall, and to jointly pay the plaintiff all outstanding rent, service charges, promotion funds and all payments accrued by the plaintiff in the process of vacating the premises," read Justice Yano's orders.
On March 26 Justice Yano stayed his own orders dated March 5 2018 evicting Nakumatt from the premises.
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"There will be no further dealings with the premises 'City Mall' pending the ruling or appeal of this matter whichever comes earlier. The defendants 'Nakumatt' are hereby responsible for payment of the profit equivalent to the rent payable for this period," said Justice Yano.
He also sought for orders to restrain the landlord from any further eviction of the remaining goods and fixtures until the matter is heard and determined.
Shah also proceeded to sue Deputy Registrar Mombasa High Court for approving Justice Yano's decree without involving him before executing the orders.
However Justice P.J. Ogola dismissed Shah's call to have the Deputy Registrar held accountable over the wrongful extraction of the order that led to his eviction.
Shah said that on March 7 2018 morning hours following Justice Yano orders, Ideal Location Limited moved in with about 100 rowdy youths and evicted them.
Shah said that orders by Justice Yano were premature in view of the winding up proceedings involving Nakumatt Holding Limited in Nairobi High Court Insolvency petition in which the issue of rental arrears were under judicial consideration.
"The honorable court granted orders sought by the applicant Ideal Location Limited thereby condemning Nakumatt to eviction in total disregard to the pendency of the winding up proceedings of insolvency petition," said Shah.
Ngonze said that his client will suffer substantial loss through wastage of their goods as well as disruption of their commercial enterprises coupled with irreversible destruction of the good will and reputation that they weld throughout the republic of Kenya and beyond
However Deal Location Limited through their lawyer Willis Oluga told Justice Ogola that the extraction by the DR was proper and she had done her part.
Oluga said that already a new client was ready to occupy the premise.
"Justice Yano issued a decree and it has been extracted and sealed. The affected party Nakumatt has already been evicted. We urge you not to stay the order. It was issued by the Environment and Lands Court that has jurisdiction, said Oluga on Monday when they appeared before Justice Eric Ogola.
Justice Ogola declined to a stay order and reinstate Nakumatt back into the mall citing legal and health consequences if perishable commodities like milk found their way back in the shelves.
"Giving an order reversing the decree will be very risky. What I am reluctant to do is to order goods back onto the shelves for health reasons. I saw milk and other goods being thrown out, if you bring them back it will raise legal and health issues," said justice Ogola.
Justice Ogola said allowing back Nakumatt into the mall will amount to supervising Justice Yano's court.
In his application in the appellate court, Shah said that Justice Yano disregarded a pending insolvency petition matter before the High Court in Nairobi involving Nakumatt Holdings Limited that had been brought to his attention in a preliminary objection dated December 7 2017.
Justice Ogola however directed that Ngonze proceed to the appellate court or the ELC which is better suited to deal with the matter.
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