Nakumatt Supermarket wants the Court of Appeal in Mombasa to quash an order evicting it from a prime location in Mombasa.
The supermarket’s lawyer D Ngonze told justices Daniel Musinga, Agnes Murgor, and Gatembo Kairo that the Environment and Lands Court (ELC) Judge Justice Charles Yano who ordered their eviction from the Nyali City Mall last year had no jurisdiction over the matter. Ngonze said Justice Yano arrogated himself powers to hear the eviction application by their former landlord - Ideal Location Ltd. Justice Yano had found Nakumatt in breach of the sub-lease agreement dated June 14, 2009 with Ideal Location.
The judge said the retailer had accrued rent arrears amounting to Sh27.8 million as of November 1, 2017. Mr Ngonze said in his petition filed last week that the ELC had no mandate to hear cases of such magnitude and that the case should have been heard by the High Court.
“Justice Yano sits in the ELC and has no powers to hear such an application that ought to have been brought before the High Court. He arrogated himself powers of the High Court and proceeded to issue evictions orders,” said the lawyer in court papers.
He said the eviction orders were issued in total disregard of orders issued by the High Court in Nairobi that barred landlords from evicting the retail chain pending the determination of its insolvency case.
Mr Ngonze said the High Court had also declined to grant the application by the landlord to re-enter the premises before the Nakumatt administrator Peter Kahi sorts out the issue with the creditor.
“The court had appointed an administrator Peter Opondo Kahi to sort the issue with the creditors and further declined to allow the landlords re-entry into the premises, pending the hearing and determination of the insolvency case.”