[2013] KEHC 6044 (KLR)

[2013] KEHC 6044 (KLR)

The court found that the petitioner's claim, though framed as a constitutional petition under Article 46, is fundamentally a tortious claim for damages arising from alleged personal injury after consuming a contaminated product. The principal issue is one of private law, not constitutional law, and should be determined in the Civil Division as a claim in tort. The court held that not every claim involving alleged violation of rights by private parties raises a constitutional issue, and where a remedy is available under ordinary civil law, the constitutional forum should not be invoked. Accordingly, the court ordered the transfer of the matter to the Civil Division for hearing and...

Citation
[2013] KEHC 6044 (KLR)
Parties
Applicant: Stephen Saitoti Kapaiku; Respondent: Cocacola Sabco Nairobi Bottlers Limited; Respondent: Cocacola African Limited; Respondent: Ministry of Public Health & Sanitation
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
21 June 2013
Case Number
Constitutional Petition 338 of 2012
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection and Forum Transfer
Outcome
petition transferred to civil division; alternative leave to withdraw and file civil claim; no order as to costs
Legal Topics
Forum Transfer, Constitutional Threshold, Consumer Protection, Personal Injury
Source Language
English
Civil Procedure Tort Law Forum Transfer Constitutional Threshold Consumer Protection Personal Injury

Case Brief

Summary, issues, holding and outcome

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Parties

Stephen Saitoti Kapaiku

Applicant

Cocacola Sabco Nairobi Bottlers Limited

Respondent

Cocacola African Limited

Respondent

Ministry of Public Health & Sanitation

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection and Forum Transfer

Legal Issues

  1. 1 Whether the petition raises constitutional issues or is a private law claim in tort.
  2. 2 Whether a constitutional claim can be brought against a private individual or company.
  3. 3 Whether the matter should be struck out or transferred to the appropriate civil forum.

Ratio Decidendi

The court found that the petitioner's claim, though framed as a constitutional petition under Article 46, is fundamentally a tortious claim for damages arising from alleged personal injury after consuming a contaminated product. The principal issue is one of private law, not constitutional law, and should be determined in the Civil Division as a claim in tort. The court held that not every claim involving alleged violation of rights by private parties raises a constitutional issue, and where a remedy is available under ordinary civil law, the constitutional forum should not be invoked. Accordingly, the court ordered the transfer of the matter to the Civil Division for hearing and...

Court Disposition

petition transferred to civil division; alternative leave to withdraw and file civil claim; no order as to costs

Orders

  • This matter is transferred to the Civil Division of the High Court for hearing and determination in accordance with the Civil Procedure Rules.
  • The petitioner shall, prior to the first appearance before the Civil Division, amend his claim to comply with the Civil Procedure Rules.