Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedPetition dated 5th December 2014· [2016] KEELC 136 (KLR)

Joseph Okeyo Olik v Attorney General & 4 others [2016] KEELC 136 (KLR)

Environment and Land Court
7 December 2016
SKS.M. Kibunja
792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court (S.M. Kibunja J) on a notice of motion dated 27th January 2016 by the 4th Respondent, J.R.R. Aganyo T/A J.R.R. Aganyo and Associates, seeking to be struck out of a petition filed by Joseph Okeyo Olik on 5th December 2014. The 4th Respondent, a surveyor retained in February 2014 and paid Kshs.16,000/= to map and survey land the Petitioner intended to purchase, argued that the petition disclosed no cause of action against him and that his refund of the Kshs.16,000/= terminated any such cause. The Petitioner opposed, asserting that he had paid a total of Kshs.46,800/= for a land transfer process agreed at a chief's meeting, of which only Kshs.16,000/= had been refunded. The court examined the petition and counsel's submissions and found that the Petitioner had joined the 4th Respondent only to recover the outstanding Ksh.30,800/=. Applying the decision in Robina C. Kikungu v Redeemed Gospel Church, the court held that a money-refund claim, lacking any allegation of violation or threatened violation of Bill of Rights guarantees, cannot be pursued by way of constitutional petition. Invoking Rule 5(d) of the 2013 Practice and Procedure Rules, the court allowed the application with costs and struck out the 4th Respondent as a party to the petition.

Key legal issues

#
01

Whether a money-refund claim belongs in a constitutional petition

Holding

It does not; such claims must be pursued under the specific statutory framework.

Reasoning

The court examined paragraph 13.03 of the petition and counsel's submissions, finding the Petitioner joined the 4th Respondent solely to recover the outstanding Ksh.30,800/=. Since that is a purely monetary claim with no allegation of denial, violation, infringement or threat of any Bill of Rights right, the constitutional petition route is inappropriate and the proper course is the statutory framework for refund claims.

p. 2
02

Whether the 4th Respondent was properly joined to the petition

Holding

No; the 4th Respondent was misjoined and was struck out under Rule 5(d) of the 2013 Practice and Procedure Rules.

Reasoning

Having found that the only claim against the 4th Respondent was a refund claim outside the constitutional realm, the court held the continued joinder improper. Rule 5(d) permits the court, on its own motion or on application, to strike out any party for misjoinder to facilitate just, expeditious, proportionate and affordable resolution of the petition.

p. 3

Legal principles established

#
  • A claim for refund of money from an individual does not require a constitutional petition, as specific statutory frameworks govern such claims
  • Where there is no allegation of denial, violation, infringement or threat of Bill of Rights guarantees, a dispute cannot be resolved by constitutional petition
  • Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 empowers the court to strike out any party for misjoinder

Court orders

#
  1. 1.The notice of motion dated 27th January 2016 is allowed with costs
  2. 2.The 4th Respondent, J.R.R. Aganyo T/A J.R.R. Aganyo and Associates, is struck out as a party in the petition

Authorities

#

Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 5(d)

Cases cited (1)

  • Robina C. Kikungu & 4 others v Redeemed Gospel Church, Inc. & 13 others & 7 others
    [2015] eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 5(d)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Okeyo Olik v Attorney General & 4 others [2016] KEELC 136 (KLR)", Case Analysis (2016). Petition dated 5th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/136/eng@2016-12-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.