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THE CATHOLIC UNIVERSITY OF EASTERN AFRICA.



MISORI NANCY PERRY.

CIVIL PROCEDURE.

With the aid of case law , discuss the extent to which the overriding
objectives as set out in Section 1A and 1B in the Civil Procedure Act have
aided in delivery of justice in civil proceedings.
Section 1A of the Civil Procedure Act sets out the overriding objective of the
Act and Rules. The overriding objective entails: facilitating the just, proportionate,
expeditious and affordable resolution of civil disputes. The court has a duty to be
guided by the overriding objective, in that, in its interpretation and implementation
of the Civil Procedure Act and rules it shall be guided by the overriding objective
irrespective of any other general objectives.
The oxygen principle requires the just, timely and cost-effective resolution of
civil disputes. It upholds the constitutional principle that justice should not be
delayed, as set out in Article159 (2).
The overriding objectives imposes duty on litigants, those exercising control
over litigants, the legal representatives of litigants and those who provide financial
assistance to the litigants.
Section 1B of the Civil Procedure Act requires that the court shall handle all
matters before it in a manner to attain justice, efficient use of judicial and
administrative resources, use of suitable technology, efficient disposal of business
of court and the timely disposal of the proceedings.
The basic principles on which the oxygen principle is based on is to discourage
the abuse of legal process and promote a less adversarial judicial system, thus, the
courts have used the overriding objectives to deliver justice as demonstrated
below.
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The overriding objectives impose a duty on litigants to minimize delay during
proceedings and the court, in exercising its discretion, considers whether the
parties have complied with their obligations under the overriding objectives. In the
below case, it can be seen that the plaintiffs application was granted by the court
after consideration of the objectors failure to fix application hearing hence acting
contrary to the obligation of lack of delay as set out by the overriding objectives of
the Act. Kenya Seed Co. Ltd v. William Busienei T/A Soiyet Agrovet (2014)
eKLR.
The plaintiff sued the defendant claiming a sum of Kshs.7, 738,486 for goods
sold and delivered to the defendant. The defendant denied the claim and filed a
statement of defence. Later the plaintiff filed a Notice of Motion for summary
judgement against the defendant in the sum owed to it, on admission. The
application was granted by the court. Before the completion of execution, Busienei
Enterprises Limited, the objector, filed a Notice of Motion that the attachment
levied by the plaintiff on its property be set aside and/or lifted and the plaintiff pay
the auctioneers costs; This was brought under Order 22 Rule 51 Of the CPR
which provides to objection of attachment. Order 22 Rule 54 provides that such an
application shall be heard expeditiously which is in line with the efficiency
principle of the Civil Procedure Act. Pursuant to Order 22 Rule 52,the objector had
a duty to fix application for hearing as soon the plaintiff intimated its intention to
proceed with the attachment, and in this case, the intimation was given by the
plaintiff vide a Notice filed.
The objector had fixed the application for hearing but the matter was adjourned
and no further efforts were made to fix a hearing. After a year the plaintiff filed an
application that the objectors earlier application be dismissed for want of
prosecution and the attached property be sold and its proceeds paid to the plaintiff
also seeking costs of the application and the objection proceedings against the
objector. The plaintiffs application was made under Sections 1A, 1B, 3 and 3A of
the CPA and Order 22 Rules 54 and 55 of the CPR.
The objector failed to appear at the hearing of the application but filed a
replying affidavit to it, its director testifying that his lawyers had on several
occasions fixed application for hearing and it could not proceed as the judges in
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Kitale had been transferred and for that period lawyers boycotted the High Court
bringing the application to a stall.
The court held that, considering the circumstance, the objector had gone against
the overriding objectives of the Civil Procedure Act and Rules to facilitate the just,
expeditious, proportional and affordable resolution of the dispute. No further
efforts were made but the objector to refix the hearing of its application after
adjournment, delaying the hearing of the application contrary to Order 22 Rule 54
of the Civil Procedure Rules. The objector relaxed knowing that the orders he
obtained defeated the plaintiffs intention to execute the decree granted in his
favour against the defendant. The objector and the defendant acted in harmony to
prevent the plaintiff from executing the decree granted in his favour. The court
ruled that the application by the plaintiff be merited and allowed in terms of all the
prayers contained the appropriate Notice of Motion.
In John Kingaru Gichiri & Another v. Furcon Limited (2012) eKLR, the
court aided in delivery of justice in the proceeding relying on the principles of the
overriding objectives of the Act namely : justice and efficiency in handling civil
proceedings.
The applicants brought a Notice of Motion under Sections 1A and 1B of the
civil procedure act and Order 51 Rules 1, 3 and 15 of the civil procedure rules
2010 together with the Inherent Power of the Court, wanting the court to set aside
an earlier order by a subordinate court which dismissed the plaintiffs suit for non-
prosecution and an earlier plain to be reinstated for interpartes hearing. The
applicant adduced evidence to show that he was out of the country at the time
hence he could not prosecute as required. The applicants counsel adduced
evidence to show that he had failed to appear in court to oppose application for
dismissal of prosecution as he was engaged in other cases.
The court held that the applicants explanation for failure to prosecute was
reasonable and that the overriding objectives of the Civil Procedure Act and Rules
required the matter to have been handled in a just manner and heard expeditiously,
which the subordinate court did not do hence there was delay in disposal of the
matter. Failure by the applicants counsel to appear in court was excusable as it
was not his own making and the applicant should not be made to suffer. The court
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allowed the applicants application in its entirety, in line with the overriding
objectives of the Act that there shall not be delay in handling a civil suit and that
the matter shall be handled justly and expeditiously.
The overriding objectives have helped remedy procedural technicalities in civil
proceedings. Courts have dealt with the technicalities while administering justice
in civil proceedings. This is demonstrated in the case of Kamani v Kenya Anti-
Corruption Commission (2010) eKLR which was an appeal case in which the
respondent had applied for the appeal to be stuck out because some documents and
the notes of trial judges were not there in the appeal record. The respondent put
forth that the appeal should be struck out based on technicality issues. The Court of
Appeal applied the oxygen principle of the Civil Procedure Act and Rules (2010)
of dealing with the cases justly and that striking out of an appeal only led to the
appellant filing another appeal which would lead to an increase of litigation costs
and waste of judicial time and resources hence being inconsistent with the
overriding objectives. The court, being guided by the overriding objectives,
declined to strike out the appeal but instead granted the appellant leave to file
another appeal record including the omitted documents.
The oxygen principle contained in the Civil Procedure Act and Rules have
helped the courts to give an upper hand to the spirit, intent and purpose of
substantive justice, in that, a court will do that which causes justice rather than
injustice when dealing with a specific civil case. Thus in Kenya Commercial
Bank Limited v Kenya Planters Co-operative Union (2010) eKLR, the
applicants sought to file for time extension regarding the filing of an application
seeking leave to appeal. The applicants cited grounds of rejection of application by
registry officials because of the use of two colours instead of one and that due to
the Easter Holidays, the applicants could not instruct their advocates in due time in
order to file the application within the time stipulated by statute. The judge in the
case, being guided by the overriding objective of attaining justice, stated that the
courts exercise of power in a manner that is just would be upheld. The court
allowed for filing of the application which otherwise was time-barred.

The oxygen principle imposes a duty on court to ensure justice when handling
civil disputes. In A.G.R v. Attorney General & 2others (2012) eKLR, the
applicant sought to be granted leave to sue the defendant out of time based on
Sections 1A and 1B of the Civil Procedure Act. The applicant had failed to sue
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within the required period of a year because of the inability to get the letters of
administration within that time. The court was obliged to apply substantive justice
as the applicants application had not quoted the relevant law provisions. The
court, after considering the circumstances of the case and being guided by the
oxygen principle, decided that refusal of the application would be unjust to the
applicant hence the application was allowed on merit.

As demonstrated above, the inclusion of the oxygen rule in the Civil Procedure
Act not only upholds the substance of the law, but in doing so, it has also aided in
delivery of justice in civil litigation.

Reference list:
Class lecture notes on Civil Procedure.
J udicial hints on Civil Procedure-Richard Kuloba, 2nd edition, 2005.
Kenya law Reports.
The Civil Procedure Act of Kenya (Cap 21).
The Civil Procedure Rules of Kenya (2010).
kenyalawresourcecentre.bogspot.com
www.internationallawoffice.com- Advent of oxygen rule breathes life into civil
litigation.
www.kenyalaw.org
www.oakadvocates.com- Procedural technicalities versus Substantive J ustice.