Limits to ‘the oxygen principle’

It is generally agreed that the principle will not, should not and must not assist a party whose aim is to side-step court procedure or one that is simply careless


By Newton Arori

Prior to the enactment of Section 1A and 1B of the Civil Procedure Act, Section 3A and 3B of the Appellate Jurisdiction Act and later Article 159 (2) (d) of the constitution of Kenya 2010, courts were sticklers of procedure, and it was common for pleadings to be struck out for reasons that were purely technical. This often resulted in injustice.

The above-mentioned provisions of the law sought to remedy that problem. Article 159(2) (d) of the Constitution provides that “justice shall be administered without undue regard to procedural technicalities.” This principle is known as “the oxygen principle”, and it is meant to avoid the unnecessary miscarriage of justice by allowing the courts more discretion.

The application of the oxygen principle, however, resulted in another challenge, where litigants seem to disregard court rules and procedure, seemingly comfortable in the knowledge that failure to adhere will not necessarily be fatal to their case. In the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others (2013) eKLR, the Court of Appeal seemed to be wary of this trend when it cautioned, “…it ought to be clearly understood that the courts have not belittled the role of procedural rules …parties and lawyers ought to be reminded that the bare invocation of the oxygen principle is not a magic wand that will automatically compel the court to suspend procedural rules.”

Thus, the courts have had to walk a fine line between giving force to the oxygen principle and at the same time upholding procedure where necessary. This article examines how the courts have applied the oxygen principle in an attempt to establish the scope and limitations of the oxygen principle in Kenya.

In Kenya Commercial Bank Limited vs. Kenya Planters Cooperative Union (2010) eKLR, the applicant, having filed the application after the filing time period had expired, sought extension of time and for the court to deem the application as having been filed within the extended time. The reasons given by the applicant for not filing in time were, among others, that due to the intervening long Easter holiday, the applicant was unable to instruct its advocates in good time to enable preparation and filing of the application within the statutory time limit of 14 days.  Justice Nyamu relied on the oxygen principle to grant the extension of time, holding that the reason given for not filing in time was valid.

In Stanley Kang’ethe Kinyanjui vs. Tony Keter &5 Others (2015) eKLR, the appeal arose from a ruling and order of the High Court, which had set aside the sale of land by public auction. In the application that had given rise to the ruling and order, the applicant had not invoked the relevant provision of the law, namely Order 22 of the Civil Procedure Rules.

Regardless, the trial judge had proceeded to find that the non-invocation of the relevant provision notwithstanding, he would still deal with the matter under the oxygen principle and the inherent power of the court. The judge found in favour of the applicant that the sale and transfer of the suit property was improper, and set aside the entire sale and transfer process. Aggrieved by that ruling, the respondent appealed to the Court of Appeal, alleging, inter alia, that the High Court should not have treated the oxygen principle as a carte blanche to cure the flouting of jurisdictional rules.

The question before the Court of Appeal was: given the straightforward provisions in Order 22 of the Civil Procedure Rules, was it open for the High Court to entertain the application and set aside the sale relying on the oxygen principle?

The Court of Appeal held that the High Court had erred. Justices Waki, Mwera and Kiage stated, “While fully cognizant of the court’s primary duty to do justice untrammelled by procedural technicalities, we are also aware that that litigation is a game with clear rules of engagement. It is not open for parties to pursue, and for the court to allow, a path of circumventing the rules that are imposed to aid in the attainment of justice. The oxygen principle cannot save applications that are incompetent.”

In arriving at that decision the judges were guided by the decision in City Chemist & Anor vs. Oriental Commercial Bank (Civil Application No. 302 of 2008), where it was stated, “…that, however, is not to say that the new thinking (the oxygen principle) uproots well-established principles or precedents in the exercise of discretion of the court, which is a judicial process devoid of whim and caprice. On the contrary, the amendments enrich those principles and embolden the court to be guided by a broad sense of justice and fairness as it applies those principles. The application of clear and unambiguous principles and precedents assists litigants and legal practitioners alike in determining with some measure of certainty the validity of claims long before they are instituted in court. It also guides the lower courts and maintains stability in the law and its application.”

In the case of Deepak Chamanlal Kamani &Another vs. Kenya Anti-Corruption Commission &3 Others (2010) eKLR, an application was brought to strike out a record of appeal arising from the ruling and order of the High Court. The grounds upon which the order to strike out was sought was that primary documents, including notes of two trial judges, had been omitted in the record of appeal, thereby making the appeal “incurably defective.”

Counsel for the applicant, Fred Ngatia, urged the court to strike out the appeal because under Rule 85(1) of the Court of Appeal Rules, among the documents to be included in a record of appeal are the trial judges’ notes of the hearing. At the High Court, three judges had heard the case, but the respondent had for some reason included only the notes of one judge.

In defence, counsel for the respondent Professor Githu Muigai relied on the oxygen principle and urged the court not to strike out the appeal but to instead proceed to hear it on its merits.

While the court declined to strike out the appeal as requested, it went on to hold: “We order 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. The 1st respondent must file and serve the supplementary record of appeal within 21 days of the date hereof. The costs of this motion shall be paid to the applicants by the 1st respondents in any event.”

To conclude, the oxygen principle is meant, overall, to aid the course of justice. As has been seen, the principle will not, should not and must not assist a party whose aim is to side-step court procedure or one that is simply careless. As the court warned in the case of Hunt Trading Company Ltd vs. Elf Oil Kenya Ltd (Civil Appeal No. 6 of 2010, “if improperly invoked, the oxygen principle could easily become an unruly horse.”


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