PROCEDURAL TECHNICALITIES VERSUS SUBSTANTIVE JUSTICE.

Legal technicalities are strict rules of procedure, points of law or small set of rules as contrasted with intent or purpose of the substantive law.  The technicalities ensure strict adherence to the letter of the law and may prevent the spirit, intent or purpose of substantive law from being enforced.  There is no single and conclusive definition of the term, legal technicality, but the court attempted to define it in the case of James Muriithi Ngotho & 4 others v Judicial Service Commission[1] where they defined the terms  separately using the Black’s Law Dictionary [2]and the Concise Oxford English Dictionary . Some of the legal technicalities which govern the legal procedure either enables or restrict access to justice in courts. Examples of these technicalities include: statutes of time limitation, rules of appellate procedure, civil procedure and stay of proceedings.

Courts at some instances have embraced substantive justice in preference to strictly and rigidly following the rules of procedure. In Githere v Kimungu [3] Justice Hancox 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.”

Actually, these rigid procedural technicalities have been noted and remedied by section 1A, 1B and 3A of civil procedure act which provides for overriding objectives of the act which includes just, expeditious, proportionate, efficient and affordable resolution of the civil disputes governed by the Act. Courts have dealt with these technicalities and have either dismissed or justified them while dispensing justice. Below are illustrations which show how courts have dealt with the issue of procedural technicalities:

The Court of Appeal called to apply the oxygen principle in Kamani v Kenya Anti-corruption Commission[4]. In this case, Deepak Chamanlal Kamani, the respondent in the appeal, had applied for the appeal to be struck out on a technicality. The technical objection raised by Kamani was that some primary documents, including the hand-written notes of two trial judges, had been omitted from the appeal record. Kamani therefore argued that the appeal was invalid and should be struck out. Before the amendments, the Court of Appeal had consistently ruled that the omission of primary documents in the appeal record was fatal to an appeal, which would have to be struck out as a result. However, the court considered the new amendments which introduced the oxygen principle. The court drew comparisons between amendments and the Woolf reforms, which introduced similar provisions in England in 1998 by way of the Civil Procedure Rules. The court’s attention was also drawn to the English case of Biguzzi v Bank Leisure [5]in which Lord Woolf himself talked about the concept of overriding objective as follows:

“Under the [Civil Procedure Rules] the position is fundamentally different. As rule 1.1 makes clear the [rules] is a new procedural code with the overriding objective of enabling the court to deal with cases justly. The problem with the position prior to the introduction of the [rules] was that often the court had to take draconian steps such as striking out the proceedings…”

The court went on to consider what was likely to happen if it proceeded to strike out the appeal, and found that the common experience was that whenever an appeal was struck out, the appellant would invariably seek leave to file a fresh appeal. This would lead to an increase in the costs pertaining to litigation, as well as a waste of judicial time and resources. The court found that this wrong (i.e, the unnecessary wastage of time and costs) must be what Parliament intended to remedy by making the amendments. The court therefore found that the approach that it must now take was not to strike out the appeal automatically, but first to examine whether the striking out will be in line with the oxygen principle. The court therefore declined to strike out the appeal, and granted the appellant leave to file a supplementary record of appeal to include the omitted documents.

In the case of African Safari Club Limited v Safe Rentals Limited Court of Appeal, Nairobi [6]the applicant applied to the Court of Appeal for a stay of execution after the High Court granted rather onerous condition for the stay of execution of a judgment amounting to Kshs. 141,862,365.98.  Obviously, such a sum was too large that it would virtually cripple the judgment debtor if the court did not stop execution and if, the Company was wound up, the judgment creditor stood to lose substantially.  In the circumstances, the Court of Appeal stated that, “with the above scenario of almost equal hardship by the parties it is incumbent upon the Court, pursuant to the overriding objective to act justly and fairly.  The first role is we have undertaken in this regard is to consider the hardships of the two parties before us. The second role is to put hardship on scales. …….. We think that the balancing act as described in the analysis of the parties before us, is in keeping with one of the principle aims of the 02 principle if treating both parties with equality or in other words placing them on equal footing in so far as is practicable ….. We believe that the rules of procedure including rule 5(2)(b) have considerable value in terms of administration of justice but new challenges brought about by the enactment of the O2 principle brings into focus the fundamental purpose of civil procedure which is to enable the court deal with cases justly and fairly.”  Taking into account the facts of the case, the Court granted a conditional stay by ordering the Applicant to pay the respondent Kshs. 7,218,664/00 and provide security by way of deposit of title valued at least Kshs. 50 million.   The Court seemed to imply that the Oxygen principles cast away the old rules and the court is now required to engage in balancing the interests and hardships of the parties with a view to placing the parties on an equal footing.

 

In the most recent decision on this subject the court, while acknowledging that in fact the court has a duty to give effect to the Oxygen principles, also recognized the longstanding principles which guide the court’s discretion.  In Westmont Power (K) Limited v Commissioner of Income Tax Nairobi [7]the Court of Appeal, in an application to strike out a notice of appeal stated “It is, accordingly, clear to us that the amendment to section to 3 of the Appellate Jurisdiction Act, did not, without more, come in to sweep away well known and established principles of law hitherto in place before the said amendment.  We, accordingly, uphold the applicant’s objection that the notice of appeal is incurably defective and that such defect could not in the circumstances we have outlined above, be cured by invocation of sections 3A and 3B of the Appellate Jurisdiction Act. This to our understanding means sections 3A and 3B of Cap. 9 cannot be invoked as a matter of course so as to excuse all and any kind of failing on the part of a party to abide by the requirements of the rules made to regulate appeals to this Court.”

 

I would be remiss if I didn’t mention the impact of the Constitution on application of procedure.  Article 159 (2) (d) of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. In the case of Board of Trustees of National Social Security Fund vs Meshack Owino Onyango [8], the Court of Appeal, in an application to strike out a Notice of Appeal  for being filed out of the time prescribed, stated “By article 159(2)(d) of the new Constitution of Kenya, the courts are now required to administer justice without undue regard to procedural technicalities.  In addition, this Court is required to give effect to the overriding objective of civil litigation enshrined in the Appellate Jurisdiction Act (Cap 9 of the Laws of Kenya) which is, among other things, to facilitate the just and expeditious resolution of appeals.  Thus, it would be against the policy of the law to strike out the appeal on a mere technicality raised in support of the application.”

 

In Kenya Commercial Bank Limited v Kenya Planters Co-operative Union[9], the applicants pleaded to file for extension of time to file an application seeking leave to appeal citing grounds such as rejection of o bound application by the registry officials because it was in two different colours instead of one, due to long Easter holiday the applicant was not able to instruct the advocates in good time to enable preparation and filing of the application within the statutory limit of fourteen (14) day and that the respondent will suffer no prejudice if this application was to be allowed. J.G Nyamu found that the grounds were not frivolous as put by the adverse counsel. She further said that technicalities of procedure non-compliant precedents or the exercise of power in a manner that would defeat the court’s core business of acting justly would have to give way. She went ahead and allowed for the filing of the application which was otherwise time barred by the rules of procedure.

 

In Ali Abdi Sheikh v Edward Nderitu Wainaina [10] case, the learned judge stated, “I have no reason to depart from the reasoning that matters of jurisdiction cannot be described as technicalities of procedure. They are matters of substance since without jurisdiction they cannot be said to be seized of the dispute. Accordingly, lack of jurisdiction cannot be cured either by overriding objective under section 1A and 1B of the Civil Procedure Act or Art 159(2)(d) of the constitution.

Raila Odinga & 5 others v IEBC and & 3 others[11]. In this case, the issue was filling  an affidavit with disregard to the proper time stipulated in the rules of the procedure without leave of the court. The filing was struck out by the Supreme Court where it stated that Article 159(2)(d) of the constitution did not mean that procedural technicalities imposed by the law may be ignored.

 

In James Muriithi Ngotho v Judicial Service Commission[12]. The applicant sought order to grant leave to application to institute review proceeding seeking order of certiorari to remove to the high for purposes of quashing letters of dismissal sent to the applicant. The applicant argued that the court should treat statutory limitation of 6 months as a procedural technicality which it can disregard in the exercise if its discretion under article 159(2)(d) of the constitution for the spirit of administering justice. The court stated that the limitation period of six months prescribed under section 9(3) of the Law Reform Act is not a procedural technicality but a statutory limitation of time for the filing of applications. It is therefore a requirement imposed by substantive law and cannot be said to a procedural technicality which can be ignored under Art. 159(2)(d ) of the constitution. It further stated that the constitution came to overthrow the provisions of the law as it stands in the statutes but was only meant to avoid injustices to parties arising from failure to comply with minor procedural lapses or technicalities in course of the proceedings.

 

A.G.R v Attorney General & 2 others[13]. The applicant sought to be granted leave  to sue the defendant out of time based on sec 5 of public authorities limitations act cap 39,sec 1A and 1 B of civil procedure act and sec 50 rule 6 of civil procedure act. The reasons for failure to sue within 1 year limitation period were due the inability to obtain necessary letters of administration within the prescribed period. Order 50 rule 6 states: Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is

not made until after the expiration of the time appointed or allowed……..

 

Order 51 rule 10 (1)Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

(2) No application shall be defeated on a technicality or for want of form that does not affect the substance of the application…….

In this application the applicant had not quoted the relevant provisions of the law in view of Order 51 Rule 10(1) and (2) and art 159(2)(d) of the constitution. The court found out that the failure to quote relevant sections does not affect the substance of the application. The court was obliged to uphold substantive justice. Having considered all the facts of the application and oxygen principles,J. A Makau stated refusal of the application would be doing injustice to the applicant and therefore allowed the application on merit.

 

Rule 85 of Court of Appeal Rules, numerous appeals have been struck out on procedural technicalities. In Pepco v Carter [14]a party named “Pepco Construction Company Limited” was mistakenly described in the Notice of Appeal as “Pepco Construction & Transport Co Ltd”, the pre-amended name in the file. The title of the notice of appeal erroneously included the word “Intended”. Holding these defects incurable, the court said, “These errors are not the sort of errors that can be cured under rule 44.”

 

In another case of AG v Pattni ,[15]the Notice of Appeal mistakenly referred to the appellant as the respondent and misdated the ruling in question. The court ruled, “The notice of appeal which the applicant wishes to correct seems to me on the face of it to be incurably defective. This is a serious mistake… As a single judge I have no power to validate an invalid notice of appeal.” The implication was that a three-judge bench might have that power.

In conclusion, litigation is like a game and the rules provide a level playing field for the parties with the judge as referee.  Conducting cases on broad principles of justice without regard to technicalities may well lead to uncertainty and injustice

 


[1] [2012] eKLR

[2] 9th edition

[3] (1976-1985) EA 101

[4] (2010) eKLR

[5] PLC(1999) 1 WLR 1926

[6] Civil Application No. 53 of 2010 (Unreported)

[7] Civil Appeal No. 128 of 2006 (Unreported)

[8] Nairobi Civil Appeal No. 87 of 2007 (Unreported)

[9] [2010] eKLR

[10] (2012) eKLR

[11] Sc petition no.5 of 2013

 [12]     miscl. ammendment of 2010

[13] (2012) eKLR

[14] (24/3/00)

[15] (30/3/99),