Stanley N. Kinyanjui.

2015

INTRODUCTION.

In Githere v Kimungu1 Justice Hancox stated that:the relation of rules of practice to the

administration of justice is intended to be that of a handmaiden rather than a mistress and that

the Court should not be too far bound and tied by the rules, which are intended as general rules

of procedure, as to be compelled to do that which will cause injustice in a particular case.

Hon. Mr. Justice Robert V. Makaramba, judge of The High Court of Tanzania in his address to

Members of Tanganyika Law Society in 2012 at Arusha noted that2 The inherited common law

adversarial system with its attendant English practice and procedure has always been at the

centre of public criticism for contributing to delays in the dispensation of justice together with its

attendant procedural technicalities3

Procedural laws refer to rules that prescribe the steps for having a right or duty judicially

enforced, as opposed to the law that defines the specific rights or duties4 It was this strictness of

having due regard to the rules of civil procedure that occasioned the loss of many legitimate

claims by plaintiffs thus denying them access to justice.

The overriding concept however, came to cure this.

1
(1976-1985) EA 101
2
Beria M. Andrea, Dissertation, Dismissal of cases on Legal technicalities Versus Substantive Justice; A critical
analysis of the Court of Appeal of Tanzania Decisions, Presented to School of Law: St. Augustine University, June
2014. Accessed via
https://www.academia.edu/8177022/Dismisal_of_Cases_on_Legal_Technicalities_A_critical_Analysis_of_the_Cou
rt_of_Appeal_of_TanzaniaDecisions on 25th Jan 2014.
3
Hon. Mr. Justice Robert V. Makaramba , Breaking the Mould; Addressing the Practical and Legal Challenges of
Justice Delivery in Tanzania: Experience from the Bench, TLS, February 2012 in Arusha p.7.
4
Elizabeth A M, Oxford Dictionary of law, Oxford University Press, London, 2001 at p.1241

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 Stanley N. Kinyanjui. 2015

For the purposes of this paper, the Civil Procedure Acct shall be abbreviated as CPA 2010

whereas the Civil Procedure Rules shall be abbreviated as CPR 2010.

THE OVERRIDING OBJECTIVE.

Definition.

Michael Howard5 defines Overriding Objective as a principle from the civil procedure rules.

The purpose of the overriding objective is for the civil litigation and dispute resolution process to

be fair, fast and inexpensive. The principle is that each case should be treated proportionally in

relation to size, importance and complexity of the claim and the financial situation of the parties.

The court must consider the overriding objective when they make rulings, give directions and

interpret the Civil Procedure Rules.

The double Os in the phrase Overriding Objectives are what coined what is today famously

known as the term Oxygen Principle. In Hunker Trading Company Limited v Elf Oil Kenya

Limited6, perhaps the first case to be grounded on the new provisions of the Appellate

Jurisdiction Act (sections 3A and 3B)

5
Howard Michael, Civil Litigation and Dispute resolution: Vocabulary Series, Legal English Books Publishers,
2013
6
2010 eKLR.

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 Stanley N. Kinyanjui. 2015

section 1A of the Civil Procedure Act7 came in to provide facilitation of just, expeditious and

proportionate resolution of civil disputes in Kenya as the overriding objective of the Act. It states

(verbatim) that: The overriding objective of this Act and the rules made hereunder is to

facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes

governed by the Act. Section 1A (2) further gives the courts the power to give effect to the

overriding objective. The courts duties in performing such mandate under section 1B of the

Civil Procedure Act are that there is:

(a) The just determination of the proceedings;

(b) The efficient disposal of the business of the Court;

(c) The efficient use of the available judicial and administrative resources;

(d) The timely disposal of the proceedings, and all other proceedings in the Court, at a cost

affordable by the respective parties;

(e) The use of suitable technology.

Art. 159 (2) (b) of the Kenyan Constitution8 propounds that in exercising judicial authorities, the

courts and tribunals shall not delay justice. In the case of Kamani v Kenya Anti-corruption

Commission9 The court went on to consider what was likely to happen if it proceeded to strike

out the appeal, and found that the common experience was that whenever an appeal was struck

out, the appellant would invariably seek leave to file a fresh appeal. This would lead to an

7
2010
8
The Kenya Constitution, 2010.
9
2010 eKLR. The Facts being that the respondent in the appeal, the respondent had applied for the appeal to be
struck out on a technicality. The technical objection raised by Kamani was that some primary documents, including
the hand-written notes of two trial judges, had been omitted from the appeal record. Kamani therefore argued that
the appeal was invalid and should be struck out. Before the amendments, the Court of Appeal had consistently ruled
that the omission of primary documents in the appeal record was fatal to an appeal, which would have to be struck
out as a result.

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 Stanley N. Kinyanjui. 2015

increase in the costs pertaining to litigation, as well as a waste of judicial time and resources.

Therefore, the court declined to strike out the appeal, and granted the appellant leave to file a

supplementary record of appeal to include the omitted documents.

Administering justice without undue regard to procedural technicalities. [Art. 159 2(d)]10:

Courts have dealt with procedural technicalities and have either dismissed or justified them while

dispensing justice.

In Salmon Ndalo Obede v National Bank of Kenya Limited11, the plaintiff argued that a

counterclaim that National Bank through their lawyer Christopher Kenyariri wanted to amend

was time barred. Reversing a dismissal of the application to amend the counterclaim by Hon.

Justice Martha Koome, the court of appeal ordered for a stay of proceedings in the trial court and

granted the bank time to amend the counterclaim.

Further, In Kamani v Kenya Anti-corruption Commission12 the court considered the new

amendments which introduced the oxygen principle. The court drew comparisons between

amendments and the Woolf reforms, which introduced similar provisions in England in 1998 by

way of the Civil Procedure Rules. The courts attention was also drawn to the English case of

Biguzzi v Bank Leisure13in which Lord Woolf himself talked about the concept of overriding

objective as follows:

Under the [Civil Procedure Rules] the position is fundamentally different. As rule 1.1 makes

clear the [rules] is a new procedural code with the overriding objective of enabling the court to

10
Supra n.8.
11
2010 eKLR
12
Supra n. 9.
13
PLC(1999) 1 WLR 1926

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 Stanley N. Kinyanjui. 2015

deal with cases justly. The problem with the position prior to the introduction of the [rules] was

that often the court had to take draconian steps such as striking out the proceedings

As stated, the court declined to strike out the appeal, and granted the appellant leave to file a

supplementary record of appeal to include the omitted documents.

It is, accordingly, clear to us that the amendment to section to 3 of the Appellate Jurisdiction

Act, did not, without more, come in to sweep away well-known and established principles of law

hitherto in place before the said amendmentthe notice of appeal is incurably defective and that

such defect could not in the circumstances we have outlined above, be cured by invocation of

sections 3A and 3B of the Appellate Jurisdiction Act. This to our understanding means sections

3A and 3B of Cap. 9 cannot be invoked as a matter of course so as to excuse all and any kind of

failing on the part of a party to abide by the requirements of the rules made to regulate appeals

to this Court.

Order 8 Rule 3 of the CPR 2010 and Section 100 of the CPA allow for the amendment of

pleadings at any time given leave of court.

This difference has been brought about by ensuring justice is served to both parties. Where, there

is a conflict of Oxygen Rules Principles with the substantive law, the law shall be interpreted in

such a manner that will ensure the administration of justice.

Case Management Under the Order 3 of Civil Procedure Rules.

Order 3 of the Civil Procedure Rules (CPR) 201014 introduced the case tracking system by

requiring Plaintiff, while instituting the suit, to indicate the choice track for the case. The three

track systems, are:

14
Civil Procedure Rules 2010, Issued under Legal Notice No. 151, Kenya Gazette Supplement No. 65, 2010.

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 Stanley N. Kinyanjui. 2015

a) Small claims: These are cases that refers to a simple claim, involving not more than two

parties and whose monetary value does not exceed Kshs. 49,999/-;15

b) Fast track: refers to a case with undisputed facts and legal issues; relatively few parties; and

would likely be concluded within one hundred and eighty days after the pre-trial directions under

Order 1116.

c) Multi-track: refers to a case with complex facts and legal issues; or several parties and which

would likely be concluded within two hundred and forty days from the date of the pretrial

directions under Order 1117.

Pre-Trial Process.

Order 11 of the CPR extensively discusses the purposes of a pre-trial conference. With a view to

furthering expeditious disposal of cases and case management the court shall within thirty days

after the close of pleadings convene a case conference.18

A pretrial conference may be conducted for several reasons:19

(1) Expedite disposition of the case,

(2) Help the court establish managerial control over the case,

(3) Discourage wasteful pretrial activities,

(4) Improve the quality of the trial with thorough preparation, and

(5) Facilitate a settlement of the case.

15
Ibid, Or. 3 Rule 3 (a)
16
Ibid. Or.3 Rule 3(b)
17
Ibid. Or. 3 Rule 3(c)
18
Order 11 Rule 3 (1).
19
http://legal-dictionary.thefreedictionary.com/Pretrial+Conference accessed on 25th Jan 2015.

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 Stanley N. Kinyanjui. 2015

Alternative Dispute Resolution.

Section 29 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms)

Practice and Procedure Rules, 201320. The parties may, with leave of the Court, record an

amicable settlement reached by the parties in partial or final determination of the case.

Further, Section 59C (1) of the CPA states that A suit may be referred to any other method of

dispute resolution where the parties agree or the Court considers the case suitable for such

referral.

As per the Overriding Objective, it can be construed to imply that the court in its interpretation of

laws and issuance of orders will ensure that the civil procedure shall, as far as possible, not be

used to inflict injustice or delay the proceedings and thus minimize the litigation costs for the

parties. This provision can also serve as a basis for the court to employ rules of procedure that

provide for use of Alternative Dispute Resolution mechanisms, to ensure that they serve the ends

of the overriding objective.21

One advantage of Alternative Dispute Resolution mechanisms is that it is very cost effective and

expeditious and also flexible depending on the parties. The Oxygen rule facilitates the adoption

of these mechanisms.

The courts are also expected to utilize the technology to facilitate the expeditious aspect of the

oxygen principle. They do this for purposes of quick communication, researching on points of

law of a case, etcetera. Recently, there was a move by the Judiciary that saw the installation of

20
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,
Issued Under Legal Notice 117, Kenya Gazette Supplement No. 95
21
Kariuki Muigua, Court Annexed ADR in the Kenyan Context, at P.2.

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 Stanley N. Kinyanjui. 2015

cameras, microphones and recording devices in the High Courts so as to save time that judges

and magistrates use to write down verbatim proceedings.

CONCLUSION.

John Rawlss theory of Justice perpetrated in 1971 clearly observes that there should be the

maximization of liberty, equality for all, and fair equal opportunity22. It is with no doubt that the

Oxygen principle has come to revolutionalise our civil procedure and to tailor it to fit the

contemporary society where access to justice and equality is the crux.

22
Freeman M.D.A, Lloyds Introduction to Jurisprudence, 8th Ed, Thomas Reuters (Legal) Ltd, London, 2008 at
p.583-4.

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 Stanley N. Kinyanjui. 2015

BIBLIOGRAPHY.

Beria M. Andrea, Dissertation, Dismissal of cases on Legal technicalities Versus

Substantive Justice; A critical analysis of the Court of Appeal of Tanzania Decisions,

Presented to School of Law: St. Augustine University, June 2014.

Hon. Mr. Justice Robert V. Makaramba , Breaking the Mould; Addressing the Practical

and Legal Challenges of Justice Delivery in Tanzania: Experience from the Bench, TLS,

February 2012 in Arusha

Elizabeth A M, Oxford Dictionary of law, Oxford University Press, London, 2001

Howard Michael, Civil Litigation and Dispute resolution: Vocabulary Series, Legal

English Books Publishers, 2013

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and

Procedure Rules, 2013, Issued Under Legal Notice 117, Kenya Gazette Supplement No.

95.

Civil Procedure Rules 2010, Issued under Legal Notice No. 151, Kenya Gazette

Supplement No. 65, 2010

Kariuki Muigua, Court Annexed ADR in the Kenyan Context,

Freeman M.D.A, Lloyds Introduction to Jurisprudence, 8th Ed, Thomas Reuters (Legal)

Ltd, London, 2008 at p.583-4.

Civil Procedure Act 2010, Cap 21 Laws of Kenya.

Kenya Law Reports.

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