Nakumatt
Supermarkets has obtained temporary orders against NSSF stopping ongoing construction
of the Hazina Trade Centre which houses its Lifestyle branch, claiming Sh1.6
billion compensation for lost business.
The
Hazina Trade Centre, which at 39 stories is expected to be Nairobi’s tallest
skyscraper, is undergoing construction to add onto its current eight floors.
The
statutory workers’ retirement scheme, the National Social Security Fund (NSSF),
owns the building. The retail chain further wants the court to block
construction of the Sh6.7 billion tower until after 2023, when its lease
expires. The retailer wants the construction that started in December stopped
on the grounds that it is disrupting its business.
NSSF,
however, in its defense said the suit had come as a surprise, arguing that the
agreement signed between itself and Nakumatt allowed for construction of extra
floors with no liability to pay any compensation for loss of profit resulting
from the same.
“An
order of injunction be and is hereby granted for 14 days only restraining the
1st and 2nd defendants from dropping building materials or causing noise or
dust and/or from delivering building materials, machinery or in any way
interfering in the suit property… or blocking the entrances with scaffold or
any other material of whatsoever nature,” ordered Justice Lucy Gacheru.
NSSF
and China Jiang Xi International, which is the contractor, are listed as 1st
and 2nd defendants respectively. NSSF and the Chinese firm Tuesday asked
Justice Gacheru not to extend the order that she issued on August 29.
They
told the court that they have put in place all necessary security measures and
reduced disturbance to the bare minimum.
NSSF
told the court it will incur massive losses if the injunction obtained by
Nakumatt is extended. The judge will on Wednesday morning make her verdict on
whether the interim orders will be extended or not.
Nakumatt
in its application says it has a 20-year lease agreement with NSSF from 2003 to
carry its supermarket business from the ground, 1st and 2nd mezzanine floors of
the building.
The
supermarket says the contractor is interfering with its business by dumping
building material waste, installing machinery and cranes, and causing what it
calls unprecedented nuisance to its staff and shoppers.
The
petitioner further says the contractor has blocked entrances by scaffolding the
entire premises, interfering with human and motor vehicle traffic.
Nakumatt
claims that attempts to have the issue sorted out has borne no fruit, arguing
that it has been unable to access NSSF’s management.
Nakumatt
says NSSF cannot undertake the project in its current form, arguing that the
premise is a busy trading and shopping centre with hundreds of shoppers
frequenting its supermarket business that operates for 24 hours.
The
petitioner wants a permanent injunction stopping the construction until after
the expiry of its lease, or until it reaches an agreement with NSSF.
It
is further seeking Sh1.6 billion compensation for lost profit, arguing that the
number of shoppers has dropped by 37 per cent, causing it huge loss and
damages.
NSSF,
citing clauses of the lease agreement, sought to dismiss claims for
compensation arguing that Nakumatt had agreed to accept the business risks
associated with future development of the building.
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