Eliminate technicalities in court

By Pravin Bowry

Seeking any form of redress in courts — be it in criminal or civil matters — can be mind boggling and a mountain of technical and intricate laws, rules, regulations and procedures.

Appealing to the Court of Appeal in criminal matters from the subordinate courts, for example, is dependent on whether the appeal is on facts or law.

If the appeal is on facts only, the Court of Appeal will not allow the appeal to proceed. Very fine and subtle distinctions are drawn to bar or open the doors for appeals.

In all trials, elaborate rules of evidence have to be complied with mainly related to barring evidence on principles of relevancy or hearsay.

New introductions

Procedural restrictions are thrown into the cauldron not to mention hurdles such as constitutional provisions of fairness and natural justice and limitation periods among others.

Latest changes to the Civil Procedure Act Chapter 21 Laws of Kenya, introduces a new concept of "overriding objective".

The provision reads: "The overriding objective of this Act and rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes governed by the Act."

For the purposes of furthering the concept of "overriding objective" the court must handle all matters presented before it for the purpose of attaining, amongst other aims, the just determination of the proceedings and the efficient disposal of the business of the court.

It also aims at attaining the efficient use of the available judicial and administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties.

The use of "suitable technology" is also introduced.

The courts have also previously addressed the matter.

In the case of Joseph Ochieng and two Others Vs First National Bank of Chicago, the Court of Appeal of Kenya emphasised the need to take into account the economic reality that a majority of the people cannot engage advocates to represent them.

Deciding cases

As such, courts should lean towards deciding cases on their merits and substance rather than on technicalities.

No other case more succinctly put the point across than Iron & Steelwares Ltd versus C.W. Martyr & Company where the East Africa Court of Appeal stated: "Procedural rules are intended to serve as the handmaidens of justice, not to defeat it."

Rules of procedure, therefore, should, as the Court of Appeal again held in Bhag Bhari versus Mehdi Khan, be seen as mere facilitators of the means towards which the end of adjudicating on the substantive issues is arrived at. The poor litigant often is mesmerised that an obvious fact or matter well known to him, and the world at large, cannot be seen or accepted by the Court, to the detriment of the party. All this leaves a bitter feeling not of justice but injustice.

How true is the Persian proverb that says "Injustice all round is justice"?

The Harmonised Draft Constitution in its Article 197 (2) attempts to address the matter by providing that "Justice shall be administered without undue regard to technicalities". Treatises and even books may well be written on this seemingly insignificant and harmless clause and lawyers will have a field day by introducing this constitutional intervention in every matter. Rules of procedures and evidence may be at risk of being relegated to insignificance.

Will all the new changes and proposed constitutional provisions put to rest the time wasting and what judicial officers perceive as unnecessary objections, to an end or will it further increase "technical" objections? It remains to be seen.

—The author {[email protected]} is a lawyer in Nairobi