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The oxygen principle requires the just, timely and cost-effective resolution of civil disputes. The overriding objectives impose a duty on litigants to minimize delay during proceedings. The plaintiff's application was granted by the court after consideration of the objector's failure to fix application hearing.
The oxygen principle requires the just, timely and cost-effective resolution of civil disputes. The overriding objectives impose a duty on litigants to minimize delay during proceedings. The plaintiff's application was granted by the court after consideration of the objector's failure to fix application hearing.
The oxygen principle requires the just, timely and cost-effective resolution of civil disputes. The overriding objectives impose a duty on litigants to minimize delay during proceedings. The plaintiff's application was granted by the court after consideration of the objector's failure to fix application hearing.
With the aid of case law , discuss the extent to which the overriding objectives as set out in Section 1A and 1B in the Civil Procedure Act have aided in delivery of justice in civil proceedings. Section 1A of the Civil Procedure Act sets out the overriding objective of the Act and Rules. The overriding objective entails: facilitating the just, proportionate, expeditious and affordable resolution of civil disputes. The court has a duty to be guided by the overriding objective, in that, in its interpretation and implementation of the Civil Procedure Act and rules it shall be guided by the overriding objective irrespective of any other general objectives. The oxygen principle requires the just, timely and cost-effective resolution of civil disputes. It upholds the constitutional principle that justice should not be delayed, as set out in Article159 (2). The overriding objectives imposes duty on litigants, those exercising control over litigants, the legal representatives of litigants and those who provide financial assistance to the litigants. Section 1B of the Civil Procedure Act requires that the court shall handle all matters before it in a manner to attain justice, efficient use of judicial and administrative resources, use of suitable technology, efficient disposal of business of court and the timely disposal of the proceedings. The basic principles on which the oxygen principle is based on is to discourage the abuse of legal process and promote a less adversarial judicial system, thus, the courts have used the overriding objectives to deliver justice as demonstrated below. [Type text]
The overriding objectives impose a duty on litigants to minimize delay during proceedings and the court, in exercising its discretion, considers whether the parties have complied with their obligations under the overriding objectives. In the below case, it can be seen that the plaintiffs application was granted by the court after consideration of the objectors failure to fix application hearing hence acting contrary to the obligation of lack of delay as set out by the overriding objectives of the Act. Kenya Seed Co. Ltd v. William Busienei T/A Soiyet Agrovet (2014) eKLR. The plaintiff sued the defendant claiming a sum of Kshs.7, 738,486 for goods sold and delivered to the defendant. The defendant denied the claim and filed a statement of defence. Later the plaintiff filed a Notice of Motion for summary judgement against the defendant in the sum owed to it, on admission. The application was granted by the court. Before the completion of execution, Busienei Enterprises Limited, the objector, filed a Notice of Motion that the attachment levied by the plaintiff on its property be set aside and/or lifted and the plaintiff pay the auctioneers costs; This was brought under Order 22 Rule 51 Of the CPR which provides to objection of attachment. Order 22 Rule 54 provides that such an application shall be heard expeditiously which is in line with the efficiency principle of the Civil Procedure Act. Pursuant to Order 22 Rule 52,the objector had a duty to fix application for hearing as soon the plaintiff intimated its intention to proceed with the attachment, and in this case, the intimation was given by the plaintiff vide a Notice filed. The objector had fixed the application for hearing but the matter was adjourned and no further efforts were made to fix a hearing. After a year the plaintiff filed an application that the objectors earlier application be dismissed for want of prosecution and the attached property be sold and its proceeds paid to the plaintiff also seeking costs of the application and the objection proceedings against the objector. The plaintiffs application was made under Sections 1A, 1B, 3 and 3A of the CPA and Order 22 Rules 54 and 55 of the CPR. The objector failed to appear at the hearing of the application but filed a replying affidavit to it, its director testifying that his lawyers had on several occasions fixed application for hearing and it could not proceed as the judges in [Type text]
Kitale had been transferred and for that period lawyers boycotted the High Court bringing the application to a stall. The court held that, considering the circumstance, the objector had gone against the overriding objectives of the Civil Procedure Act and Rules to facilitate the just, expeditious, proportional and affordable resolution of the dispute. No further efforts were made but the objector to refix the hearing of its application after adjournment, delaying the hearing of the application contrary to Order 22 Rule 54 of the Civil Procedure Rules. The objector relaxed knowing that the orders he obtained defeated the plaintiffs intention to execute the decree granted in his favour against the defendant. The objector and the defendant acted in harmony to prevent the plaintiff from executing the decree granted in his favour. The court ruled that the application by the plaintiff be merited and allowed in terms of all the prayers contained the appropriate Notice of Motion. In John Kingaru Gichiri & Another v. Furcon Limited (2012) eKLR, the court aided in delivery of justice in the proceeding relying on the principles of the overriding objectives of the Act namely : justice and efficiency in handling civil proceedings. The applicants brought a Notice of Motion under Sections 1A and 1B of the civil procedure act and Order 51 Rules 1, 3 and 15 of the civil procedure rules 2010 together with the Inherent Power of the Court, wanting the court to set aside an earlier order by a subordinate court which dismissed the plaintiffs suit for non- prosecution and an earlier plain to be reinstated for interpartes hearing. The applicant adduced evidence to show that he was out of the country at the time hence he could not prosecute as required. The applicants counsel adduced evidence to show that he had failed to appear in court to oppose application for dismissal of prosecution as he was engaged in other cases. The court held that the applicants explanation for failure to prosecute was reasonable and that the overriding objectives of the Civil Procedure Act and Rules required the matter to have been handled in a just manner and heard expeditiously, which the subordinate court did not do hence there was delay in disposal of the matter. Failure by the applicants counsel to appear in court was excusable as it was not his own making and the applicant should not be made to suffer. The court [Type text]
allowed the applicants application in its entirety, in line with the overriding objectives of the Act that there shall not be delay in handling a civil suit and that the matter shall be handled justly and expeditiously. The overriding objectives have helped remedy procedural technicalities in civil proceedings. Courts have dealt with the technicalities while administering justice in civil proceedings. This is demonstrated in the case of Kamani v Kenya Anti- Corruption Commission (2010) eKLR which was an appeal case in which the respondent had applied for the appeal to be stuck out because some documents and the notes of trial judges were not there in the appeal record. The respondent put forth that the appeal should be struck out based on technicality issues. The Court of Appeal applied the oxygen principle of the Civil Procedure Act and Rules (2010) of dealing with the cases justly and that striking out of an appeal only led to the appellant filing another appeal which would lead to an increase of litigation costs and waste of judicial time and resources hence being inconsistent with the overriding objectives. The court, being guided by the overriding objectives, declined to strike out the appeal but instead granted the appellant leave to file another appeal record including the omitted documents. The oxygen principle contained in the Civil Procedure Act and Rules have helped the courts to give an upper hand to the spirit, intent and purpose of substantive justice, in that, a court will do that which causes justice rather than injustice when dealing with a specific civil case. Thus in Kenya Commercial Bank Limited v Kenya Planters Co-operative Union (2010) eKLR, the applicants sought to file for time extension regarding the filing of an application seeking leave to appeal. The applicants cited grounds of rejection of application by registry officials because of the use of two colours instead of one and that due to the Easter Holidays, the applicants could not instruct their advocates in due time in order to file the application within the time stipulated by statute. The judge in the case, being guided by the overriding objective of attaining justice, stated that the courts exercise of power in a manner that is just would be upheld. The court allowed for filing of the application which otherwise was time-barred.
The oxygen principle imposes a duty on court to ensure justice when handling civil disputes. In A.G.R v. Attorney General & 2others (2012) eKLR, the applicant sought to be granted leave to sue the defendant out of time based on Sections 1A and 1B of the Civil Procedure Act. The applicant had failed to sue [Type text]
within the required period of a year because of the inability to get the letters of administration within that time. The court was obliged to apply substantive justice as the applicants application had not quoted the relevant law provisions. The court, after considering the circumstances of the case and being guided by the oxygen principle, decided that refusal of the application would be unjust to the applicant hence the application was allowed on merit.
As demonstrated above, the inclusion of the oxygen rule in the Civil Procedure Act not only upholds the substance of the law, but in doing so, it has also aided in delivery of justice in civil litigation.
Reference list: Class lecture notes on Civil Procedure. J udicial hints on Civil Procedure-Richard Kuloba, 2nd edition, 2005. Kenya law Reports. The Civil Procedure Act of Kenya (Cap 21). The Civil Procedure Rules of Kenya (2010). kenyalawresourcecentre.bogspot.com www.internationallawoffice.com- Advent of oxygen rule breathes life into civil litigation. www.kenyalaw.org www.oakadvocates.com- Procedural technicalities versus Substantive J ustice.