Civil Practice and Procedure in Kenyan Courts: Does the Overriding Objective Principle Necessarily Improve Access to Justice for Litigants?

Abstract

Procedure has often been said to be the handmaiden of justice, and thus the rules of procedure do exist to provide a formal mechanism where justice can be attained expeditiously, fairly and without delay. However, rules of procedure are at times treated as masters of justice rather than merely handmaiden to justice. There thus exist at times a tug of war between the procedural dictates of the law and the dictates of normative and substantive justice. This is more so in the arena of civil litigation and practice. In a bid to cure this mischief, the Kenyan legislature enacted the Statute Law Miscellaneous Amendment Act of 2009 which amended various provisions of the law including, the Civil Procedure Act and the Appellate Jurisdiction Act to provide for Kenyan Courts of Law being guided by the overriding objectives of the various acts of parliament in civil dispute resolution. The amendment brought into perspective what was later coined as the 'Oxygen Principle'. This paper analyzes the application of the Overriding Objective principle in the interpretation and application of rules of procedure in furtherance to the requirements of substantive justice to all parties to a case. In attempting to achieve this objective, this paper shall have due regard to the practice in Kenyan courts, while drawing inspiration from the jurisprudence of other commonwealth countries.