Mombasa — Mombasa-based English Point Marina Beach Hotel is now seeking an explanation from the Court of Appeal on orders that allowed a local bank to take over its hotel.
The hotel through its lawyers accuse KCB of misinterpreting court orders that were issued to take over the hotel under receivership and now wants the appellate court to intervene.
In an application dated 5th November 2022, English Point says although the court of appeal suspended proceedings in one of the several cases at the high court, the various orders issued by Justice Dorah Chepkwony still stand.
“The orders of the Court of Appeal did not stay any additional orders and directions of the High Court that were delivered by the Honourable Lady Justice Dorah Chepkwony on 7th June 2022, which are still in force pending the determination of the Application dated 6th June 2022 by the present Applicant.
The luxury hotel wants the apex court to clear the ambiguity surrounding its decision rendered last month.
“It’s Imperative that this honourable court clarifies its order of the 4th October 2022 which on proper interpretation the meaning now remains uncertain. The court has jurisdiction to clarify an ambiguity in its ruling,” the application by English Point Marina through the law firm of Conrad Law Advocates reads.
In another suit filed last month, the Hotel is seeking to cite KCB group directors of contempt claiming they misinterpreted the court orders to irregularly take over the facility.
“Unless the Application annexed hereto is heard as a matter of urgency and the Respondents cited for Contempt of Court, the intent of the Honourable Court of Appeal towards furthering the ends of justice by its orders in Civil Application No E261 of 2022- KCB Bank Kenya Limited & Another v Pearl Beach Hotels Limited will be deliberately and maliciously diminished by the Respondents,” the hotel says in an application dated 11th October, 2022.
English Point Marina is owned by Alnoor Kanji, Nazir Jinnah and two others consists of 96 apartments, eight penthouses and a 26-room hotel and is one of the few private projects granted the Vision 2030 Private Sector Flagship status.
In Court papers, the hotel says KCB bank statements show that English Point Marina has transacted its loan accounts to the sum of Sh68 billion and the bank continues to act upon a disputed bank loan by Nazir Jinnah.
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Justice Chepkwony had suspended KCB’s move to appoint Kamal Bhatt as the receiver manager and administrator over a Sh5.2 billion debt claim pending the hearing and determination of a suit filed by Marina’s parent company, Pearl Beach Hotels Ltd.
“We hereby give our decision granting the notice of motion dated 22nd July 2022 and issue an order staying the Ruling and Orders of the Honourable Lady Justice Dorah Chepkwony delivered on 12th July 2022, and stay any further proceedings in High Court Commercial Court, Case No. E201 of 2022, Pearl Beach Hotel Limited vs KCB Limited & Kamal Anantory Bhatt, pending the hearing and determination of the applicants’ intended appeal,” the three-judge bench of the appellate court ruled.
Through its director Jinah Nazir, English Point claims KCB and the Receiver have unlawfully and illegally continued to disobey the said court orders, while continuously exposing him to untold and irreparable harm.
“Bearing in mind that the English Point Marina is a major development and significantly large hospitality establishment and business in the Coastal region, the Applicant continues to incur irreparable harm and financial loss and reputation from the actions of the Respondents herein.”
Pearl Beach Hotel borrowed a total of Sh5.2 billion between 2010 to 2016 for the construction of a fully serviced 5-Star English Point Marina.
The loans were advanced in the form of a development finance facility, which would be sold to offset the debt.
The hotel was completed in 2017 and according to KCB, the developer was unable to service the loan but the lender accommodated the company on numerous occasions.
