The owner of a building where the DusitD2 hotel sits has failed to convince the Appellate court to review a Sh5.4 billion award sought by a company that missed a block in the complex after a botched deal years ago.
Cape Holdings, which owns 14 Riverside Drive, suffered another blow after the Court of Appeal dismissed the application for lack of merit and the application being moot.
The company had urged the court that the award granted to Synergy Industrial Credit, be varied to reduce the award, charge interest at court rates, and limit interest computation to six years.
Justices Kathurima M’inoti, Fatuma Sichale, and Jamila Mohammed said it was clear from the judgment issued on November 6, 2020, that the court deliberately declined to address the merits of the award because the parties had agreed that the issue would be exclusively dealt with by arbitration tribunal.
“So, it is a misnomer for the applicant to claim, as it does in its application, that this Court erred in doing this or failing to do that, regarding the merits of the arbitral award,” the judges said.
The High Court issued a decree of Sh4.5 billion against Cape Holdings and execution proceedings culminated with the issuance of a prohibition order against the 14 Riverside Drive property on January 5, last year.
The High Court subsequently directed the file to be closed as the execution had been completed.
Cape Holdings was placed under administration on October 12, 2021, which was later terminated on June 9, 2023, due to non-performance by the administrator.
Cape Holdings through senior counsel Allen Gichuhi had asked the court to review the award, arguing that it was not pleaded by the parties. He further claimed the arbitrator went beyond what was contemplated in the agreements.
Mr Gichuhi said the judgment was a miscarriage of justice because it unjustly enriched Synergy Industrial Credit by awarding a rate of interest that was unconscionable, and punitive rather than compensatory, and contrary to public policy.
Synergy Credit through senior counsel Ahmednasir Abdullahi opposed the application saying it was the fourth attempt by Cape Holdings to set aside the arbitral award and that none of the issues raised would justify the review of the decision and finally the application was moot as execution was completed and courts exist to resolve live disputes and not to give futile, hypothetical or abstract expositions of the law.
The judges further said the court will not entertain applications for review of its decisions on the allegation that the court misinterpreted or misapplied the law, as that “would be the shortest and surest way to create an illegitimate tier of appeals against the decisions of the court.
