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JudgmentPatrick, Ann and Others VS Shoprite4 min read

Patrick, Ann and Others VS Shoprite

High Court at Milimani High Court · · E.C. Mwita

REPUBLIC OF KENYA

                         IN THE HIGH COURT OF KENYA AT NAIROBI

                                          MILIMANI LAW COURTS

                         CONSTITUTIONAL PETITION NO. E004 OF 2021

PATRICK MAINA ………………………………1ST PETITIONER

ANN MALINDA TOMA………………………….2ND PETITIONER

SMM……………………………………………….3RD PETITIONER

(Minor suing through the 1st Petitioner, father and Next Friend)

JMM………………………………………………4TH PETITIONER

                                             VERSUS

SHOPRITE CHEKERS KENYA LIMITED ………. RESPONDENT

ATTORNEY GENERAL…………………….INTERESTED PARTY

                                                 RULING

  1. This is a ruling on the applicant by Shoprite Checkers Kenya Ltd, the applicant, dated 17th October 2023. The application seeks release of Kshs. 3,000,000 deposited in court as security for judgment, pursuant to a court order issued on 1st March 2021. The applicant states that it complied with the order and deposited the money in court, a fact that was confirmed by the letter by Deputy Registrar dated 8th December 2021.
  2. The applicant asserts that the petition was dismissed with costs in a judgment delivered on 27th July 2023. The petition having been dismissed, the money should be released since the purpose for which the money was deposited, ended the moment the petition was dismissed.
  3. The application is opposed through grounds of objection dated 15th November 2023 and a replying affidavit sworn on 30th October 2023. The petitioners/respondents also filed written submissions dated 16th March 2024 opposing the application.
  4. The gist of the response is, first; that this court has no jurisdiction to determine the application. The petitioners take the view, that the court having determined the petition and a decree issued, it became functus officio.
  5. Second, an appeal has been lodged against the judgment raising fundamental questions, including jurisdiction of the court to handle the petition and the legality of the process that gave rise to the judgment. This application is, thus an abuse of the court process.
  6. The respondents also argue that there is no proof that the money was deposited in court since the documents relied on by the applicant are not official receipts and, therefore, do not prove that money was deposited.
  7. The respondents take the position, that if money was indeed deposited, it should not be released given that an appeal is pending before the Court of Appeal. They urge that the application be dismissed.
  8. I have considered the application, the response and arguments by parties. This application seeks release of money deposited in court as security for judgment pursuant to an order made on 1st March 2021. The applicant argues that the petition having been dismissed, the purpose for which the money was deposited ended hence there is no further reason for keeping the money in court.
  9. The respondents argue that the court has no jurisdiction having become functus officio; there is already an appeal before the Court of Appeal, and that there is no evidence that money was deposited in court.
  10. I have perused the record and in particular the ruling dated 1st March 2021. The court, (Mrima J), ordered the applicant to deposit Kshs. 3,000,000 as security for judgment within 14 days from the date of that ruling.
  11. On record are correspondence attached to the application showing that the Deputy Registrar wrote to the applicant on 8th December 2021 confirming that the money had been deposited in compliance with the court order. The argument by the respondents that money was not deposited has no foundation or factual basis.
  12. The court’s jurisdiction to hear and determine this application cannot be doubted. The fact that the court heard and determined the petition did not take away its jurisdiction to hear any application or further proceeding arising in the matter after delivery of the judgment, except an appeal against its own decision. The argument that this court has no jurisdiction, or is functus officio has no legal basis.
  13. The main issue is whether the court should order release of the money deposited in court. The order for deposit was clear that the money was to be security for the judgment. My understanding is that the money was to remain in court pending determination of the petition. If the petition succeeded, the court would have to decide on what would happen to the money, including whether it would go to the successful party and how much. If the petition failed, the money would have to be released to the depositor.
  14. The order did not state that the deposit would be held in court until the conclusion of all litigation which would have given the respondents reason argue that since there is a pending appeal, the money should not be released as litigation has not come to a conclusion.
  15. The reason for which the money was deposited having ended, there would be no basis for the order to deposit the money to remain in force and the money to continue being held in court.  The order was made to secure outcome of the petition in the event it went the petitioners’ way given the respondent’s situation.
  16. Even after lodging an appeal, that alone cannot be deemed to have extended the order for holding the money in court, except if the petitioners as appellants before the Court of Appeal applied to for an order to justify keeping the money in court pending determination of the appeal. That not being the case, I do not find merit in the argument that the money should not be released.
  17. Consequently, and for the above reasons, the application is allowed as prayed. No order as to costs.

Dated, Signed and Delivered at Nairobi this 24th May Day of May 2024

     E C MWITA

                                                 JUDGE

    Patrick, Ann and Others VS Shoprite Patrick, Ann and Others VS Shoprite