IS THE CURRENT APPLICATION OF OXYGEN RULE A THREAT TO THE LEGAL PROFESSION?

 

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In the wake of 2010, Kenya promulgated a new constitution that championed key developments in her legal system such as the Bill of rights, Devolved government, Leadership integrity and many more. In the legal practice, Article 159(d) of the Constitution of Kenya has since been dominant and hegemonic over the Courts decisions and dispensation of justice. The tenets of the Overriding Objective rule require justice to be affordable, expeditious and fair; a vehicle that has been used for Courts active case management. In the modern civil justice, (not only in Kenya) emphasis has therefore been put on substantive law as compared to order in the legal practice or the procedural laws. This is evident in various courts’ pronouncements and directions that has so far strengthened the wide application of the Oxygen rule.

However, pertinent issues still arise from the application of this principle being the extent of the applicability of the principle; the point at which a court should take refuge in the principle and show mercy to one who is not compliant with the procedural rules; and when a court should be stringent on the use of procedure to instill order in the justice system. The major question then is: when should the oxygen rule be used as a sword or as a shield in the administration of justice?

The origin and development of the overriding objective rule

As per the words of Francis Bacon L.C; ‘the fresh justice is the sweetest,’ the overriding objective rule known today as the oxygen rule (O2) derived from the double O’s trace its roots to the Courts of Chancery where the principles and maxims of equity were developed. The rule was developed from common law system and was greatly influenced by the maxim of equity which states that justice delayed is justice denied, an adversary to the maxim that was developed in Walsh vs Lonsdale (1882) 21ChD9 that, ‘equity regards as done what is ought to be done,’ which maintained the strict and tight application of the procedural laws developed in the writ system. In the year 1824, the Chancery Commissioners proposed the need to adopt the active case management system and undue regard to the procedural law was a recommendation. In 1873, Rules of Supreme Court were introduced in England that tacitly embodied the Oxygen rule as would later be endorsed by decisions from the House of Lords and Court of Appeal decisions an example being the decision in Associated Leisure vs Associated Newspaper [1970] 2QB 450, 457. The rule later gained relevance in other jurisdictions such as Australia’s Rules of Civil Procedure and the United States District Courts; reiterating that the oxygen rule was to ensure that substantive justice was the predominant aim with other aims being subordinates. In 1994, the Woolf Enquiry was established in England to investigate inter alias, whether the justice system was expensive, slow or lacking the required fairness and equality. This team came up with proposals that covered on case management, pre-action protocols, alternative dispute resolution and new procedure rules and accompanying practice directions that came into force in 1999.

 

The application of the Oxygen rule in Kenya: to stab or to shield?

 

Kenya is among the jurisdictions that has mastered the application of the Overriding Objective rule and has since enacted it in various statutes. Article 159 (d) of the Constitution of Kenya provides that, “justice shall be administered without undue regard to procedural technicalities.” Subsequently, Section 14(6) Supreme Court Act has embodied the rule thereto with a sole purpose to ensure that justice is dependent on substantive law and not the procedural technicalities. Further, Sections 3A and 3B of the Appellate Jurisdiction Act, Sections 1A and 1B of the Civil Procedure Codes and Section 80(1) (d) of the Elections Act; so far embodies the application of the principle. One of the earliest applications of this rule was in the case of Abdirahman Abdy vs Safi Petroleum Products Limited & 6 others CA No. 173 of 2010 where the Appeal was served on the Respondent out of time and without leave of the Court. The court while allowing the appeal held that the raison d’ etre of Overriding Objective in Civil litigation is a policy issues that the Court invokes to obviate hardship, expense, delay and to focus on substantive justice. This was the onset of delayed pleadings, defective applications and irregularities in lodging appeals all which in most circumstances, the court has been lenient to accommodate. Despite the application of this rule, uniformity has not been achieved and the extent of application not regularized. For example Justice Kiage in Nicholas Kiptoo Arap Korir Salat vs IEBC & 6 others [2013] eKLR held that; “  I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. Indeed, this Court must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goalposts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.” In the above judgment, it can be inferred that whereas the oxygen rule is in application, courts have not reached a uniform extent of its application. The application of this rule still remains unpredictable as it can be used as a shield for instance, to engulf a defaulting party against sanctions such as defective pleading or a sword to stab the same in favour of innocent party.  A standard practice and interpretation has therefore not been achieved in the application of the rule. A critical question then is; should the court take refuge under the oxygen rule enshrined in the CPC and other statutes to breathe life into or otherwise incurably defective pleadings?

The legal officers and the application of oxygen rule

Who is an advocate? Whereas section 2 of the Advocates Act defines an Advocate as one whose name is duly entered upon the Roll of Advocates, the typical advocate in day to day legal activities overrides the definition given. The day to day advocate is one who can argue for the whole day based on the procedure used just to ensure that a suit is dismissed or struck out for the benefit of a client or one that can invoke the overriding objective principle in all statutes to ensure that his/her pleading is allowed so as to proceed with the suit. In the legal profession, one undergoes thorough training before he/she is allowed to practice. In the training, one is taken through the substantive law and the procedural laws. The two are taught not only to equip lawyers with the required knowledge but also to ensure that they have the means and ways in which a court is moved or a case is handled to enable orderly management of cases thus avoiding disrespect and chaos to the entire administration of justice. When equipped with both substantive and procedural laws, a lawyer is expected to apply both in any case scenario. For example one is not only expected to draw a plaint but also to file it before the limitation of time. One is required to file an appeal in time or seek for a court leave to file it out of time. This is in line with good practice, as it has been 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.

However, the obtaining practice is a dilemma since court officers have over-relied on the oxygen rule as an excuse to by-pass the procedures put in place for good practice. There are increased numbers of defective applications, delayed pleadings, irregularities in lodging appeals and flawed pleading. Surprisingly, advocates are still able to defend this show of incompetence relying on the overriding objective principle as the only refuge to hide their carelessness and mistakes.

The net effect of this is carelessness and a greater disregard for procedure that in the end causes injustices. For example, judges could in good faith while applying the oxygen rule 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. Similarly, flawed pleadings are allowed without questioning the competency of a lawyer relying on the oxygen rule, this has allowed increased fraudulent activities in the legal profession including masqueraders. Strictly operating on the equity is equality principle, parties in a court are equal and one should not enjoy a privilege over the other. If one party is diligent to file all pleading in time without defect, the other party is supposed to follow the same and anything not similar to it should be disallowed.

The oxygen rule has also emphasized the use of Alternative Dispute Resolution, a platform that sometimes is troubled with the issue of unequal bargaining power thus injustice. If the application of the Oxygen rule continues with the same uncertainty, the legal field may internalise incompetency and the next generation may not have the benefit of seeing good practice. As to whether this principle has a drastic effect or benefits to the legal profession, is a question to be answered by the jury.

Solving the dilemma?

The problem, is the extent of the application Oxygen rule. In ensuring uniform applicability of the principle for a proper practice, there is need for courts to balance the consideration of substantive laws vis-a-vis procedural laws. In conclusion, this could be done by ensuring that substantive justice is not sacrificed before the altar of procedure; and also litigants do not intentionally hide their mistakes in the name of overlooking the laid down rules.

By Shem Nyang'or, an editor at the University of Nairobi Law Journal.