The Court of Appeal has allowed the owners of the property housing the famous Shade Hotel in Nairobi’s Karen suburb to evict the proprietor of the business.
Shade Manufacturers and Hotel Ltd, which has conducted business on the premises for the last 37 years and invested more than Sh40million in physical structures, is now required to give vacant possession to the owners — Serah Mweru Mutuu, Grace Gacuku, Virginia Wanjiru and Loise Waithera.
Appellate Judges Daniel Musinga, Gatembu Kairu and James Otieno-Odek upheld the High Court’s dismissal of the firm’s application for stay of execution of an eviction order made on October 13, last year by the Business Premises Rent Tribunal (BPRT). The tribunal had confirmed that the firm had been properly served with the mandatory notice to terminate the landlord/tenant relationship.
In her ruling delivered on July 10, Environment and Land Court Judge Kossy Bor had rejected the firm’s application to suspend the tribunal’s directive to remove its structures within six months. The firm had failed to provide any security for the performance of the order, she had pointed out.
The owners had argued that the lease agreement between the parties expressly stipulated that no developments should be made on the property without their approval. However, the tenant was at liberty to remove any structures upon termination of the lease, they said.
One of the directors of the aggrieved firm, David Gitau Thairu, had said the intended appeals before the High Court and Court of Appeal were likely to be rendered useless upon eviction. Further, the firm stood to suffer financial ruin before the dispute was heard and concluded.
However, the three-Judge appellate bench said Section 15 (4) of the Landlord and Tenant (Shops, Hotels and catering Establishments) Act provides that the decisions of the Environment and Land Court are final and not subject to further appeals. “We are satisfied that the applicant has no right of appeal to this court. There can be no arguable appeal if there is no right of appeal,” the court held.