Kenyan jurisprudence can be said to be about 115 years old and because of the influence of the colonial master, most English laws enacted before April 12, 1897 still apply in the country and because of this, procedural and evidential technicalities have often resulted in delays and injustice.
The Constitution under Article 159 (2) (d) states that “justice shall be administered without undue regard to technicalities”. Article 48 states that “the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice”.
These two provisions in the Constitution are meaningful developments in Kenyan jurisprudence. In their scope, they counter the crippling impact that technicalities have had in dispensation of justice.
When used in the legal context, technicalities refer to strict rules of procedure, points of law or a small set of rules as contrasted with intent or purpose of substantive law.
The bridge between substantive law and procedural law is that whereas the former defines the rights and duties of the people, the later lays down the rules by which these rights and duties are enforced and realised.
Prior to enactment and promulgation of the Constitution of Kenya 2010, which in good conscience of the law has given technicalities in the law a “by-pass kick”, many innocent Kenyans were denied justice by having their cases dismissed.
For example in the years gone by, the former Court of Appeal dismissed hundreds of merited appeals – apparently to give statistical support to appeals disposed merely because the Decree was not certified by the Registrar.
The procedural law in matters of civil cases is provided for under the Civil Procedure Act and Rules. In 2009, important amendments were made to the Civil Procedure Act, inserting section 1A which sets out under subsection (1) the objective of the Act thus:
“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.”
The courts in executing their functions must ensure that they give interpretation to the law that effects the overriding objective as stated in the Act. It is not only the duty of the Court but also that of parties to civil proceedings and their advocates to ensure this is done.
The courts have given various interpretations regarding the overriding objective which has come to be known as the oxygen principle provided for under the civil procedure Act and its intent.
In the case of Abdirahman Abdi versus Safi Petroleum Products Ltd and six others Civil Application number, 173 of 2010, the court held that “The overriding objective in civil litigation is a policy issue which the court invokes to obviate hardship, expense, delay and to focus on substantive justice.
Even before the inclusion of the oxygen principle in statute the courts have time and again held that although the rules of procedure are of great importance in the administration of justice, the court should take into account the economic reality in Kenya that majority of people cannot engage advocates to represent them and they should not be disadvantaged on that score.
Procedural rules are intended to serve as the hand maidens of justice, not to defeat it. The courts must strive to decide cases on their merit.
On the issue of application of the overriding objectives and technicalities, the Supreme Court in Raila Odinga and five others versus the Independent Electoral And Boundaries Commission and others, stated that, “ It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to Presidential election, which is a matter of great national interest and public importance.
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“However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and Rules relating to the Constitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The rules and timelines established are made with special and unique considerations.”
The highest Court in the country appears to condone reliance on technicalities and its pronouncement borders on double standards. Lower courts may well be tempted to rely on this precedent binding on lower courts and say technicalities have the absolute force of law.
The Security Laws (Amendment) Bill 2014 announces several amendments, some to directly deal with the issue of technicalities in the law. Some of these amendments pose a threat to the accustomed legal foundations of the nation.
The Bill aims to weed out technicalities in the application of the Evidence Act and to allow admissibility of electronic and digital evidence before courts including the receiving of oral evidence by teleconferencing.
The Bill under Section 36 (1) seeks to allow detention beyond the constitutionally set 24 hour limitation to bringing an accused person to court. Is this a technicality or breach of a fundamental right?
The ultimate goal of justice should not be defeated due to technicalities in the law, and instead a spirited commitment to the constitutional obligations to ensure justice is served without undue delay and regard to technicalities must be observed.
In Kenya, justice and technicalities of law seem not to be on speaking terms.
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