Firm 25B Class of 2017 KSL
1.1 Introduction
Law can be broadly classified into various categories, for example, substantive and procedural law. Substantive law, on the one hand, is the law itself as opposed to the procedure on how to apply it. It is the law that outlines the rights, duties, obligations, offences and punishment. Procedural law, on the other hand, is the law concerned with the steps taken in applying substantive law.[1] Both the substantive as well as the procedural law are important in a legal system for it would amount to nothing if one had rights but have no steps to undertake in enforcing those rights. The two categories of law complement each other in ensuring the delivery of justice in a legal system. However, there have been instances where the procedural law has been given more emphasis than the substantive law so that at the end of the day, litigants fail to obtain the substantive remedies due the fact that a procedure was not complied with.
This situation characterises the legal systems in the world, for example, the Common Law. Various criticisms have been raised against the Common Law for the emphasis laid in the procedural as opposed to the substantive law. Justice Robert Makaramba of the High Court of Tanzania, while addressing the members of the Tanganyika Law Society in 2012 observed that:
‘…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 technicalities.’[2]
It, therefore, became necessary to find a way of ensuring that the procedures in the administration of justice would not lead to a miscarriage of justice. This was done through the overriding objective, also known as the oxygen principle. The overriding objective requires 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 ought to consider the overriding objective when they make rulings, give directions and interpret procedural rules. Substance should be favoured over procedure.
1.2 Historical Background
English jurisprudence is one of the earliest in the world to set out the utility and need of the oxygen principle. The concept of justice as an overriding objective in civil practice and the interpretation of rules derived its origins not from the English Courts of Law, but on the Courts of Equity.[3] Equity developed maxims to capture the thought of justice, and one such maxim is the maxim that ‘Equity regards as done what is ought to be done’. This maxim of equity was set out in Walsh v Lonsdale[4] where the Chancery Court developed this maxim as a remedy to the strict and tight procedural law occasioned by writs which would in many times occasion a grave injustice to either party to the suit.[5]
The English courts, however, ran into a dilemma with regard to the application of the overriding objective in achieving justice in that a question that the courts would have to determine is the meaning and extent of dealing with a case justly. In Chilton v Surrey County Council[6] the Court of Appeal indicated that dealing with cases justly involved dealing with the real claim and its merits.[7] In March 1994, the Lord Chancellor set up the Woolf Enquiry to investigate whether the justice system was expensive, too slow and lastly, lacking equality between powerful and wealthy litigants and under resourced litigants. On 26 April 1999, the new civil procedure rules and the accompanying practice direction came into force. Among proposals that Lord Woolf made include:
a) Case management – that case control be left to the court rather than leaving the conduct of the cases to quick trial. As the case will be subject to a timetable, parties will not be able to draw out proceedings and case delay. A positive duty was cast on the court which meant: identifying the issues at an early stage; encouraging parties to use ADR; and helping parties to settle whole or part of the case. It was suggested that cases must be assigned Small Claims, Fast Track or Multi Track.
b) Pre-action protocols – focuses on the conduct of the parties in the pre-litigation stage which will be taken into account by the courts both during the case and also towards the end when the final decision regarding allocation of costs is taken. They serve as an effective means to this end as they are accompanied by practice directions which describe their chief objective as encouraging exchange of early and full information and documents about the prospective claim, avoiding litigation by promoting settlement and where litigation ought to be the last resort, to support the efficient management of litigation.
c) Alternative dispute resolution (ADR) – people should result to settlement and negotiation before instituting judicial proceedings. ADR is a simpler way of settling issues since it does not involve complex court processes and at the same time saves a lot of time and avoids the ever escalating cost of litigation.
The Kenyan case is no different. More emphasis had been initially placed on the rules of procedure to the extent that substantive justice was denied in many instances in civil litigation. This saw some courts make observations of the need to ensure substantive justice is given more emphasis. One such observation was made by Justice Hancox in Githere v Kimungu,[8] where he 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.’
In fact, some courts went ahead to apply the overriding objective even long before it was incorporated in the statutory law. In Microsoft Corporation v Mitsumi Computer Garage Ltd,[9] the Court of Appeal held that it was not convinced that any prejudice had been occasioned to the defendant by the plaintiff using a Chamber Summons as opposed to a Notice of Motion in the application in question. It stated that:
‘In the interest of justice, procedural lapses should not be invoked to defeat applications unless the lapse went to the jurisdiction of the court or caused substantial prejudice to the adverse party.’
It is in the response to this situation that the Kenyan legislature enacted the Statute Law (Miscellaneous Amendments) Act of 2009, which amended various pieces of legislation including the Civil Procedure Act[10] and the Appellate Jurisdiction Act.[11] The amendment was to provide for the ‘Overriding Objective’ approach towards the interpretation and application of the rules of procedure set out by the various statutes. The Civil Procedure Act[12] was amended by inserting Section 1A which provides as follows:
(a) 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;
(b) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1); and
(c) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
The Appellate Jurisdictions Act[13] was amended by inserting Section 3A whose provisions mirror those of Section 1A of the Civil Procedure Act.
Since then, new jurisprudence has emerged from the courts of law with the adoption of the overriding objective manifesting itself in the interpretation of the rules of procedure in civil litigation.[14] In Hunker Trading Company Limited v Elf Oil Kenya Limited,[15] a landmark case on the new provisions of the Appellate Jurisdiction Act (Sections 3A and 3B), it was held that Section 1A of the CPA came in to provide facilitation of just, expeditious and proportionate resolution of civil disputes in Kenya as the overriding objective of the Act.
The mandate of the courts in ensuring compliance with the overriding objective covers the following areas: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and the use of suitable technology.
Apart from the statutes, the overriding objective is captured under the Constitution of Kenya, 2010. With respect to judicial authority, Article 159(2)(d) states that ‘justice shall be administered without undue regard to procedural technicalities’. This provision is very important due to the position of the Constitution as the supreme law. It, therefore, implies that the courts are under an obligation to ensure that substantive justice is not sacrificed at the altar of procedure. This ideally denotes the aspect of guaranteeing equal protection of the law for every Kenyan citizen regardless of their status. This has also been underpinned in Annex 1 & 2 of the Judiciary Transformation Framework 2012-2016[16] which nonetheless emphasizes on the importance of delivering justice expeditiously without undue regard to technicalities. Additionally, under Order 3 of the Civil Procedure Rules,[17] case management has been addressed with the introduction of the case tracking system by requiring plaintiff, while instituting the suit, to indicate the choice track for the case. This ideally serves to crate timeliness in the processing of claims and enforcement of judicial decision in an expeditious manner.
Hunker Trading Company Limited v Elf Oil Kenya Limited[18] was the first application to be grounded on the new provisions of the Appellate Jurisdiction Act, namely sections 3A and 3B as well as Rules 5(2)(b) and 42 of the Court of Appeal rules. The court ascertained that the advent of the oxygen principle was: to usher in a new management culture of cases and appeals in a manner aimed at achieving the just determination of the proceedings; ensure the efficient use of the available judicial and administrative resources of the courts which would otherwise result in the timely disposal of the proceeding at a cost affordable by the respective parties.
Despite the incorporation of the oxygen principle in the statute and rules, there still emerge decisions from courts, which do not take this approach. The resulting decisions are varied. In Mradura Suresh Kantaria v Suresh Nanalal Kantaria,[19] the court was of the opinion that the overriding principle would serve the courts well in so far as the expeditious dispensation of justice is concerned. However, it also stated that it is equally important as well to point out that it is not going to be the panacea for all ills in procedural technicalities and in every situation. A foundation for its application must be properly laid and the benefits of its application judicially ascertained.
Caltex Oil Ltd v Evanson Wanjihia[20] involved an application for granting a stay of execution pending the hearing and determination of the application as well as the intended appeal. The court stated nonetheless that although the overriding objective has several aims the principal aim is for the Court to act justly in every situation either when interpreting the law or in exercising its powers. The court as such granted a conditional stay which would serve the interests of both parties owing to the fact that on a balance of convenience, the respondent might have suffered greater hardship than the applicant unless the court made an appropriate order to prevent any undue hardship.
In Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & 3 Others,[21] an application was sought to strike out the Record of Appeal arising from the ruling and orders of the High Court. The Applicant sought the orders based on the fact that in compiling the record of appeal, the 1st Respondent chose to include in the record the notes of only one Judge as opposed to all the 3 judges who heard and determined the case in the High Court before the appeal was lodged. In delivering its ruling on the matter, the Court of Appeal stated that in the circumstances of the appeal then, striking it out would not facilitate the just, expeditions, proportionate and affordable resolution of the appeal. To this end, it did offer an alternative to the procedural technicality at hand and refused to strike out the appeal. It ordered that under Rule 89 (3) of the Court of Appeal Rules, the 1st Respondent to file and serve upon the applicants a supplementary record of appeal containing the notes of the two Judges left out in the record of appeal within 21 days.
In Kenya Commercial Bank Limited v Kenya Planters Co-operative Union[22] Justice Nyamu stated that the oxygen principle was not at a flash meant to cover mistakes or lapses of counsel or negligent acts, dilatory tactics or acts constituting abuse of the court process; on the contrary in many situations the court would strike out applications under the oxygen principle if the circumstances in the application would have the effect of violating the oxygen principle. Advocates and their clients had a duty to assist the court in managing the cases. Thus, the furthering of the oxygen principle by the courts was not likely to be helped or assisted where advocates or the parties in the applications failed to lay the basis for the application of the oxygen principle or fail to comply with the rules practice directions or court orders.
The Supreme Court has had occasion to pronounce itself in the issue. In Evans Kidero Odhiambo & 5 Others v Ferdinand Waititu & 5 Others,[23] it threw out a petition filed by the appellant 72 days after the judgment of the High Court for being incompetent, holding that the statutory timelines laid out in the law were mandatory and could not be derogated from. This was so despite the fact that the appellant was not responsible for the delays, which had been caused by the fail of the High Court registry to avail typed proceedings of the judgment in good time. Similarly, in Raila Odinga v The IEBC & 3 Others,[24] the Supreme Court struck out an affidavit filed by the Petitioners on the ground that it had been filed out of the stipulated time. The Supreme Court observed that a court of law is not a court of sympathy and ignorance of procedure is no excuse, and that rules of procedure can only be disregarded on a case by case basis.
It is, therefore, evident from the above decisions that courts of law will pay regard to the substantive justice of the case as opposed to procedure, but will not allow a party to hide their negligent acts and mistakes in the name of the oxygen principle as such would amount to misuse of the principle.
1.3 Merits of the Oxygen Principle
The following merits are derived from the application of the overriding objective in civil litigation:
a) Ensuring that the parties are on equal footing – equity always protects the just rights of the oppressed and also prevents an injustice from being perpetrated. Sir William Blackstone opined that ensuring that the parties to the case are at an equal footing is crucial to the determination of the case justly so that no party has more influence or undue advantage over the other party to the claim;[25]
b) Ensure that the courts deal justly and fairly in handling cases – this is the fundamental purpose of civil procedure. In Devaraja v Roy,[26] it was held that the primary purpose of civil courts is to decide matters based on the merits of each party and that dismissing a suit based on a technicality would be against justice. Dealing justly with cases includes dealing with the real claims and merits of the suit[27] as well as considering the effect of the suit and its determination to public interest;[28]
c) Ensuring that a case is dealt with expeditiously and fairly – this requirement has its origins in the equitable maxim that ‘delay defeats equity’.[29] The maxim was first set out in the case Smith v Clay[30] where it was held that inordinate delay creates an injustice. Kenyan courts echoed this in the ruling in Leo Sila Mutiso v Rose,[31] declaring that an applicant seeking to invoke the application of the overriding objective principle must prove to the court that his/her delay is not inordinate, unjust or unreasonable.
d) Reduction of expenses – Section 1A of the Civil Procedure Act provides that one of the overriding objective of the Act and rules made thereunder is to facilitate affordable resolution of civil disputes. The courts have to consider the financial position of each party. Unnecessary expenses should not be incurred by the litigant and the courts should always ensure that the due administration of justice does not cause such expenses. A taxing officer and judges owe a duty to the public to see that the costs are not allowed to rise to such a level as to deprive of access to the courts all but the wealthy. The case which commonly elaborates on this fact is Meru Farmers Co-operation Union Ltd v Abdul Aziz Suleman.[32]
e) Allotting to a case an appropriate share of the court’s resources to other cases – in working out the total subject matter of the suit, courts must look to the principal amount awarded by the judgments in all cases to determine the value of the subject matter.
f) Instilling a sense of duty on court officials in assisting courts in managing cases – the new amendments are welcome as they are expected to usher in a new era of case management, aimed at achieving the just and expeditious determination of disputes, while ensuring the efficient use of judicial resources. Cost effectiveness will also be a central tenet of any proceedings before the court. However, the amendments should not be viewed as a magic cure to any situation; even in Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & 3 Others,[33] the court warned that a litigant who takes 6 months to file a notice of appeal, as opposed to within 14 days of the decision, cannot simply rely on the oxygen principle.[34]
g) To urge the courts to deal with cases proportionately – this means devoting appropriate resources to each suit. Proportionality should consider:
(i) The amount of money involved – unless there is no reason, the court will not depart from the ordinary practice whereby the plaintiff being in error by filing the case in a wrong court, the defendant cannot be made to suffer for the plaintiff’s mistake. The plaintiff must, therefore pay the defendants costs. Further fees will be chargeable to the plaintiff on filing his plaint in the proper court.
(ii) The importance of the case – every suit shall be instituted in the court of the lowest grade competent to try it. Under Section 11 of the Civil Procedure Act, the plaint shall be returned to be presented to the lower or higher than that of the court competent to try it;
(iii) The complexity of the issues – if a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and void as was held in Seid Bin Seif v Sharriff Mohamed Shatry.[35]
1.4 Impacts of Overriding Objectives on Civil Litigation
a) Advanced planning and preparation – cases will be analyzed and issues identified at a very early stage to enable completion of the case management questionnaire. This helps to weed out unmeritorious claims and defenses and promote settlement[36]. During the preparation stage the court should decide the order in which issues are to be resolved;
b) Stricter court deadlines – courts will be less likely to grant time extensions and will require strict adherence to court determined timetables and milestone dates. Controlling the progress of the case means that less time will be spent on adjourning a case due to absence or lateness;
c) Fewer interlocutory applications – the requirement for economy and proportionality requires that summary assessment of costs and costs sanctions for only necessary interlocutory applications only. This enables the courts in dealing with as many aspects of the case as it can at the same occasion;
d) Greater use of alternative dispute resolution – active case management by the court specifically includes encouraging parties to use Alternative Dispute Resolution and provide for possible sanctions against parties who unreasonably refuse to comply. This is clearly indicated under Article 159 (2) (c) of the 2010 Constitution which states that in exercising judicial authority, the courts and tribunals shall be guided by the principle of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject, however, to clause 3 of the same.[37] This can be clearly illustrated in the case of Safaricom Ltd v Ocean View Beach Hotel Ltd & 2 Other[38] whereby the Applicant, Safaricom Ltd, applied for an injunction to the CoA pending the hearing and determination of an intended appeal against a ruling and order of Justice Koome in the High Court. Justice Nyamu, in his ruling, discussed the oxygen principle where he stated that;
‘..in order to give recognition to arbitration as an alternative to litigation and also to give effect to the overriding objective and in exercise of this court’s inherent jurisdiction, I hereby strike out the ruling by Koome J. and grant an interim measure of protection in respect of the telecommunication equipment for a period of 28 days only to enable the parties to institute the necessary arbitral proceedings, failing which the order shall automatically cease to operate.’[39]
In respect of the foregoing, Justice Koome in the Court of Appeal’s view, stepped out of her jurisdiction by making orders which undermined the intended arbitration process as well as its outcome contrary to Section 17 of the Arbitration Act,[40] and further by either declining to issue any measure of protection or granting such measure in misapprehension of the court’s role under Section 7 of the Arbitration Act.[41] To this end, Justice Nyamu was of the view that arbitration as an alternative to litigation was one of the means of attaining the overriding objective.
e) Greater court intervention – steps should be taken in proceedings and the pace at which they are taken will be supervised and determined by the court. This helps eliminate delaying tactics and unnecessary applications and ensure that parties focus on the real issues in dispute.[42]
f) Change in litigation culture – the Civil Procedure Rules, 2010 encourage cooperation between the parties in the conduct of the proceedings, which should facilitate more settlements. With technological advancement, courts should opt for more advanced methods of recording and storing proceedings. This will reduce the amount of time spent in hearing and determining cases
1.5 Demerits of the Overriding Principle
Despite the good intentions of providing just, expeditious, proportionate and affordable ways of dispute resolution,[43] there are certain demerits that come about with this principle:
a) Not all aspects of litigation can be solved by the overriding objective – in certain scenarios, the Oxygen principle cannot work in procedures where there are time limitations. A good reference to this is in the case of Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & 3 Others.[44] With this in mind, this also means that undertaking litigation may not work due to the fact that certain cases are under a time limit that is given under the Limitations Act, therefore the use of the principle will be outright rejected due to technicalities such as a limitation. Apart from this, matters of jurisdiction cannot be placed as technical procedure, due to the fact that without jurisdiction, it cannot be said to have been seized by dispute,[45] hence they are considered to be substantive in nature. This means that any substantive element to the suit cannot be used as a way to override it from procedure as it will be the cause of a declining quality of fair and just process.
b) Overriding Objective prevents room for procedural law to prevail – sometimes procedural law may be pushed aside in certain scenarios and this could be taken for granted. There could be instances where a certain technical procedure may be undertaken carelessly and creates a greater disregard for procedure, for example, judges could make assumptions while making summary assessments and there could be moments when the lawyer and their clients exploit this principle by concealing important documents that could be helpful in the development of a case.[46] However, reasonable undertaking should be considered when granting an overriding objective.
c) The overriding objective may create injustice – since out of court settlements are considered a form of overriding objective, there has been criticisms of such a mechanism due to the fact that injustice will be created if parties hold unequal bargaining positions due to their financial background.[47] This will be considered intimidating for the weaker party and will hold no stand against such bias.
1.6 The Role of an Advocate
In order to ensure a better realization of the purposes of the overriding objectives, advocates, as officers of the court and as representatives of their clients, have to perform the following roles:
a) To advise clients on various issues regarding the oxygen principle – if they wish to invoke the oxygen principle, there should be a firm basis whether factual or legal expressed in the application and must comply with the rules of procedure and court orders. With regard to issues relating to extension of time, the Advocate should advise his/her client that if he/she wishes to ask the court for such an application then they must satisfy the following requirements since the courts will consider them: length of delay; reason for delay (It may have been inadvertent); chance of appeal succeeding if the application is granted; and degree of prejudice to the respondent if the application is granted.
b) Advocates have a duty to advise the court in managing cases – they can do this by advising the courts that they can use adopt substantive law in cases of strict procedural rules of procedure, since courts are not tied by the rules of procedure so as to be compelled to do that which will cause an injustice in a particular case. In managing the cases, they will help the courts realize that the rigid procedural rules have been remedied by the overriding objectives which have been provided by Section 1A, 1B and 3A of the Civil Procedure Act.
c) Advocates must assist the court to further the overriding objective principle – they may do this by advising the courts that the strict rules of civil procedure may prevent the spirit, intent and purpose of substantive law and may restrict access to justice which is the purpose of the court. They may therefore advise the courts to use the overriding objective principle in order to enable access to justice in court.
d) Advise their clients/public not to be discouraged about technicalities – for instance, if one has made an error in an application where one had not quoted the relevant sections of the law, then in such a case, the courts will be obliged to uphold substantive justice instead of following strict rules of civil procedure where in such a case would cause an injustice. No application shall be defeated on a technicality that does not affect the substance of application. Therefore, in the example above, not quoting the relevant sections does not affect the substance of application
1.7 Recommendations
We recommend that the overriding objective be well implemented throughout the civil litigation process. The principle is already reflected in the law, as discussed above, but the critical issue of implementation remains the Achilles heels. The Constitution of Kenya 2010, the Civil Procedure Act and the Civil Procedure Rules are some of the statutory documents that capture the essence of this principle. This has also been reflected in policy documents, for example, the Judiciary Transformation Framework 2012-2016. However, the requirements of the principle are yet to be wholly incorporated into the civil litigation process.
Case management is one area that needs to be worked on critically if the benefits of the principle are to be gained in the Kenyan judicial system. This is a role that in our view is to be undertaken by all the stakeholders in the judicial process. It is not a role solely reserved for the courts. The courts should take the lead in ensuring the parties have complied with pre-trial conference procedures so that all the issues of procedure are addressed. The litigants too have a crucial role to play. A high percentage of the procedural technicalities comes from litigants. This is because some of them use procedures to drag the litigation process, or to even evade the handling of substantive issues. We, therefore, recommend that the litigants should approach the judicial system with sincerity. This is not something that can be fully enforced by law. It must come from the litigants and their representatives.
However, we caution that the overriding objective should also not be taken as something to just trump all the procedural requirements. It is important to note that there is a purpose that procedural requirements serve, and affect the substantive justice. For example, where one is required to serve pleadings within a certain period, they are intended to allow the other party the time to prepare their defence. If the requirements to serve pleadings within the stipulated period is taken as a mere procedure, an injustice will be occasioned on the other party, and in effect their right to defend themselves is compromised. In this regard, we agree with the current approach that the use of this objective should be done with the discretion of the court so that some litigants do not occasion injustice to others all in the name of overlooking procedural requirements. The discretion to be exercised by the court should be guided by the Constitutional provisions, for example, Article 159(2) (d), and the statutory instruments. This will ensure that we do not have instances of misuse of the principle.
1.8 Conclusion
The overriding objective plays a crucial role in civil litigation. It is important to note that ‘In a civilized society, the legal process is the machinery used in courts of law to vindicate a man’s right or to enforce his duties. It can be used properly. It can be used improperly, and so abused.’[48] The crucial role played by the overriding objective is to ensure that the legal process in civil litigation is not improperly used. This is in two respects as already highlighted above: ensuring that substantive justice is not sacrificed at the altar of procedure; and also be cautious to ensure that litigants do not intentionally hide their mistakes in the name of overlooking the laid down rules.
[1] Elizabeth AM, Oxford Dictionary of Law, Oxford University Press, London, 2001, 1241.
[2] Beria Andrea, ‘Dismissal of cases on Legal technicalities Versus Substantive Justice; A critical analysis of the Court of Appeal of Tanzania Decisions’ Dissertation, St. Augustine University, June 2014
<https://www.academia.edu/8177022/Dismisal_of_Cases_on_Legal_Technicalities_A_critical_Analysis_of_the_Court_of_Appeal_of_TanzaniaDecisions> on 13 February 2017.
[3] Richard Edwards and Nigel Stockwell, Trusts and Equity, Pearson Education, 2005, 34.
[4] (1882) 21 Ch D 9.
[5] Supra n. 33.
[6] [1999] CPLR 525.
[7] Ibid.
[8] (1976-1985) EA 101.
[9] 2001 1 EA 124
[10] Chapter 21, Laws of Kenya.
[11] Chapter 9, Laws of Kenya.
[12] Supra note 5.
[13] Supra n. 6.
[14] For instance in the case of Mradula Suresh Kantaria v Surech Nanillal Kantaria Civil Appeal No.277 of 2005 (unreported) the Court of Appeal named called the approach to application of the rules as the “double ‘OO’ principle” while the same court, in the case of Hunker Trading Company Limited v Elf Oil Kenya Limited Civil Application 6 of 2010 chose to simply call it the ‘Oxygen Principle’ since the approach breathes life to procedure.
[15] Court of Appeal Civil Application No. 6 of 2010.
[16] Republic of Kenya, The Judiciary Transformation Framework 2012-2016, 2012.
[17] Civil Procedure Rules 2010.
[18] Court of Appeal Civil Application No. 6 of 2010.
[19] Court of Appeal Civil Appeal (Application) No. 277 of 2005.
[20] Court of Appeal Civil Application No.190 of 2009.
[21] Civil Appeal (Application) No. 152 of 2009
[22] Civil Application 85 of 2010
[23] Petition No. 18 & 20 of 2014
[24] Petition 5 as Consolidated With Petition 4 & 3 of 2013
[25] Blackstone, Civil Practice Chapter 1 page 47
[26] [2008] EWHC 469 (QB), LTL 3/6/2008
[27] Chilton vs. Surrey County Council, [1999] CPLR 525
[28] Evan vs. Tiger Investments Ltd, [2002] EWCA Civ. 161, [2002] 2 BCLC 185
[29] Supra 4.
[30] 3 Brown Ch. 639
[31] 8C.A. NAI 255 of 1997 (unreported).
[32] (No. 1) [1966] E.A. 436.
[33] Civil Appeal (Application) No. 152 of 2009
[34] http://www.internationallawoffice.com/Newsletters/Litigation/Kenya/Njoroge-Regeru-Company/Advent-of-oxygen-rule-breathes-life-into-civil-litigation#2.
[35] (1940) 19 (1) KLR 9.
[36] Brendah Aroko, ‘Overriding Objectives in litigation’ 10 September, 2011
[37] Article 159 (2) of the Constitution of Kenya, 2010.
[38] Civil Application No. 327 of 2009.
[39] Ibid.
[40] Arbitration Act (Chapter 49, Laws of Kenya).
[41] Ibid.
[42] Brendah Aroko, ‘Overriding Objectives in litigation’.
[43] Section 1(A) Civil Procedure Act (Chapter 21, Laws of Kenya).
[44] Civil Appeal (Application) No. 152 of 2009.
[45] Ali Abdi Sheikh v Edward Nderitu Wainaina & 3 Others HCCC No. 556 of 2009.
[46] As above no. 3.
[47] Elliot and Quinn, The English Legal System, 10th edition, Pearson, 2009, 532.
[48] Mitchell & Others v Director of Public Prosecutions (1987), Law Reports of the Commonwealth, 127, 129.
very informative
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