Overriding Objectives

OVERRIDING OBJECTIVES
Topic Objectives
• Analyze the meaning of the “overriding objective”

• Critique the reason for the inclusion of the overriding objective in the
Civil Procedure Act Cap 21 Laws of Kenya, and other civil statutes and
Rules of Court
• Explain the application of the overriding objective in civil proceedings
• Assess the effectiveness of the overriding objective in guiding civil
litigation in Kenya
• Establish the sanctions which parties to a suit may face for contravening
the overriding objective principle.
• Evaluate the Overriding Objective principle in its proper historical
context in the development of procedural legislation in Kenya.
What are Overriding Objectives?
• Overriding-Important
• Objectives-purpose
• The important purpose of various laws and applicable to civil
litigation is to facilitate dispute resolution in a manner that is:-
• Just;
• Expeditious;
• Proportionate; and
• Accessible.
• Also referred to as oxygen Principles. Why?
Overriding Objectives in the Constitution
• Grounded on Article 159 (2) of the Constitution of Kenya, 2010

• justice shall be done to all, irrespective of status; Equality
before the law
• justice shall not be delayed; Expeditious disposal of matters
• justice shall be administered without undue regard to
procedural technicalities; and
• the purpose and principles of the Constitution shall be
protected and promoted.
Overriding Objectives in other statutes
• Sections 1A, 1B and 1C of the Civil Procedure Act (Cap 21 Laws of Kenya)
• Sections 3A of the Civil Procedure Act (Cap 21 Laws of Kenya)
• Section 4 of the Magistrates’ Courts Act, 2015 (No 26 of 2015)
• Section 3 of the Court of Appeal (Organization and Administration) Act,
2015 (No 28 of 2015)
• Section 3 of the Employment and Labour Relations Court Act (cap 234B,
Rev 2014)
• Section 3 of the Environment and Land Court Act, 2011 (No 19 of 2011)
• Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9, Rev 2012)
Why Overriding Objectives?
• Historical Context
• Technicalities were the order of the day.
• Issues of service.
• Procedure took precedence over form.
• Striking out pleadings for simple technicalities.
• COK 2010.
• CPR 2010.
Duties of various parties in relation to O2
• Section 1A(2) and (3) of CPA imposes duties on the court on Advocates and/or on
parties.
• Duties of an Advocate
• Duty to act with diligence.
• Obey court orders.
• Comply with court’s directions.
• Duty of material disclosure to the court and to the other side (Noting the intricacies of
the adversarial system and also observing Advocate-client privilege and confidentiality)
• Set down matters for hearing.
• Unexplained delay cannot be cured by the Oxygen Principles Mugo Njogu vs Mary Githinji
(2010) eKLR
• Bi-Mach Engineers Ltd vs James Kahoro Mwangi (2011) eKLR-An application seeking
extension of time to file an appeal against a judgement. Court held that the party had a
duty to follow up with his Advocate.
• Duties of the Court.

• Just determination of proceedings:-
• Act fairly.
• Give consistent awards.
• Don’t exhibit bias.
• Respect for human rights.
• Treat parties equally.
• Take into account diversity.
• Take into account special needs.
• Give parties a hearing.
Duties of the court contd
• Efficient disposal of the business of the court.

• Start court on time.
• No delays in delivering rulings and judgements.
• Administrative work eg processing of decrees, warrants of execution.
• Remove bottlenecks in filing.
• Plan leave days or days out of station well.
• Inform
Duties of the court contd
• Cost effective disposal of proceedings
• Avoid unnecessary proceedings.
• Printing.
• Mobile courts
• Use of suitable technology

• Zoom, Microsoft teams.
• Efficient use of available judicial and administrative resources.

• Time-Very important resource.
• Printing materials.
• No delays in delivering rulings and judgements.

• Administrative work eg processing of decrees, warrants of execution.
• Remove bottlenecks in filing.
• Plan leave days or days out of station well.
• Inform
Inherent Jurisdiction and the O PRINCIPLES 2
• Section 3A of the CPA.

• Inherent powers can be used to further the Oxygen Principles
• Stay of execution pending an application for leave to appeal out of time.
• Stay of proceedings where the ends of justice so require or to prevent abuse
of the court process.
• Set aside an irreguraly obtained judgement ex dibitio Justitiae-Manso
Enterprises Ltd. V. Kenya Commercial Bank Ltd. & Another (1989)KLR
• Gicharu Kimani and Associates Advocates v Samwel Kazungu Kambi
[2020] eKLR
• Grant of mandatory injunction.
Limitations of the Oxygen Principles
• Article 159 of COK and O2 Principles are not a magic bullet or pill.
• Mumo Matemu v Trusted Society of Human Rights Alliance & 5
others [2013] eKLR
“In our view, it is a misconception to claim as it has been in recent
times with increased frequency that compliance with rules of
procedure is antithetical to Article 159 of the Constitution and the
overriding objective principle under section 1A and 1B of the Civil
Procedure Act (Cap 21) and section 3A and 3B of the Appellate
Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just
determination of cases. Cases cannot be dealt with justly unless the
parties and the court know the issues in controversy. Pleadings assist in
that regard and are a tenet of substantive justice, as they give fair
notice to the other party.”
• They will not cure everything.

• They will not cure blatant breaches of the law.
• They will not cure willful disobedience of court orders. Hunker
Trading Company Ltd vs Elf Oil Kenya Ltd (2010) eKLR.
• Questions of jurisdiction are not technicalities that can be cured
under the Oxygen Principles
• KAKUTA MAIMAI HAMISI Vs. PERIS PESI TOBIKO & 2 OTHERS

[2013] eKLR;
• “…the right of appeal goes to jurisdiction and is so fundamental
that we are unprepared to hold that absence of statutory
donation or conferment is a mere procedural technicality to be
ignored by parties or a court by pitching tent at Article 159 (2)
(d) of the Constitution. We do not consider Article 159 (2) (d)
of the Constitution to be a panacea, nay, a general white-wash
that cures and mends all ills, misdeeds and default of
litigation”.
Sanctions for Contravening O2
• Costs
• Punishment for contempt of court.
• Order for payment of costs personally by the Advocate.
• Denial of audience
• Striking out pleadings

Overriding Objectives

Uploaded by

Copyright:

Available Formats

Overriding Objectives

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Overriding Objectives

Uploaded by

Copyright:

Available Formats

OVERRIDING OBJECTIVES

• Analyze the meaning of the “overriding objective”

• Grounded on Article 159 (2) of the Constitution of Kenya, 2010

• Duties of the Court.

• Efficient disposal of the business of the court.

• Use of suitable technology

• Efficient use of available judicial and administrative resources.

• No delays in delivering rulings and judgements.

• Section 3A of the CPA.

• They will not cure everything.

• KAKUTA MAIMAI HAMISI Vs. PERIS PESI TOBIKO & 2 OTHERS

You might also like