The Kenyan High Court has agreed with the Commercial Court in Rwanda that I&M Bank can indeed go ahead to recover its money loaned to Nakumatt Supermarket which collapsed last month.
The Kenya court ruled that I&M Bank Rwanda can now recover Rwf 932,497,198 from former Nakumatt chief executive officer Atulkumar Maganlal Shah. The ruling by the Kenyan court essentially confirmed what had been decided by the Commercial Court in Kigali and later by the Commercial High Court, also in Rwanda.
The case stems from a court battle that has been ongoing since November 2018 between I&M Bank Rwanda and Mr Atulkumar Maganlal Shah. The Rwandan lender filed that when Nakumatt CEO was seeking the loan, he gave guarantee that in case Nakumatt defaulted, he would pay the money personally from his own money.
So when trouble began hitting the regional supermarket chain, and it faced many different creditors, I&M Bank Rwanda pursued the CEO as an individual. However, despite losing in two Rwandan courts, the Nakumatt executive appealed to the Kenyan High Court.
In the hearings in Nairobi, the High court heard that two Rwandan courts had entered a judgement in favour of I&M Bank Rwanda in April 2019 and months back.
In its ruling today, Kenyan High Court Justice David Majanja said the bank had satisfied conditions for the judgement granted to the lender by Rwandan courts to be recognised in Kenya.
Justice Majanja heard last week during the hearings that the bank had obtained the judgement from a “reciprocating country” and therefore should be allowed to enforce the ruling because Mr Shah had refused to pay.
Documents filed in court showed that on November 15, 2018, the bank obtained the judgement before a commercial court in Kigali for the sum of Rwf933,497,198. The court further ordered Mr Shah to pay lawyers’ fees of Rwf600,000 and Rwf100,000 respectively for costs of proceedings, all totalling to Rwf932,497,198.
Mr Shah later filed an appeal but it was dismissed by High Commercial Court judge Kibuka M. Jean-Lue, who also increased the lawyers’ fees to Rwf900,000.
The court heard that Mr Shah had guaranteed several loans given to Nakumatt Rwanda and agreed that in the event Nakumatt defaulted he would pay, prompting the lender to file the case against him.
Among the loans he guaranteed to Nakumatt Rwanda was one to the tune of Rwf1,053,450,610 on January 19, 2018. The former CEO had promised to pay “without complications” in case Nakumatt defaulted. The court further heard that insolvency proceedings were commenced against the supermarket chain in Rwanda.
Mr Shah defended himself, saying that the bank should await the outcome of the proceedings because an administrator had been appointed by the court and who would ascertain all loans borrowed by the supermarket. He added that a report would be submitted in court and a recovery plan made.
The ex-CEO further argued that he no longer had powers over Nakumatt and that he did not also know the status of the loans.
However, the bank said the fact that insolvency proceedings were pending could not prevent the bank from prosecuting the guarantor separately. The court heard that Nakumatt was over-indebted and was not in a position to repay the debts.
The court agreed with the lender, saying there was nothing that could have prevented the bank from bringing action against Mr Shah, because he had pledged to pay even if insolvency or recovery proceedings had commenced.
In Kenya, banks owed billions of shillings by Nakumatt Supermarkets have identified 11 real estate properties worth Sh3.68 billion (US$36.7m) that are linked to the retail chain’s former CEO and his family for possible seizure.
The assets include shopping malls, office blocks and prime land in Nairobi, Mombasa and Nakuru, where Atul’s father started Nakumatt as a retail shop. I&M Bank Rwanda can therefore sell any of these properties to recover its money, at least in theory.
The properties are owned by third parties linked to the Shah family, which owns the bulk of Nakumatt shares, according to a document prepared by the retail chain’s court-appointed administrator.
The creditors, who include banks, suppliers and landlords, are owed KSh38 billion and the administrators will share out about KSh422 million that was raised from the sale of six Nakumatt branches to Naivasha.
In Rwanda, Nakumatt also owed millions in unpaid rent and closed its doors last year.
Additional reporting from Business Daily Kenya