I thought the Civil Procedure Rules, 2010 were coming into effect tomorrow, 10th December 2010, that is, 90 days from the date of publication, 10th September 2010. Alas, the LSK has sent a circular saying that the date is 17th December 2010. Everyone is rushing to file their plaints today. Under Order 3 (2) all suits, including suits against the government except small claims, shall be accompanied by the following documents;
(a) Verifying Affidavit.
(b) A list of witnesses to be called at the trial.
(c) Written statements signed by the witnesses excluding expert witnesses; and
(d) Copies of documents to be relied on at the trial including a demand letter before action.
This provision will necessarily mean that more effort will have to be put in preparation of cases for filing. The era of "get me an injunction now" are over. I hope this will curb frivolous suits.
Overidding Objectives (Oxygen Principles)
The amendment of the Civil Procedure Act and the Appellate Jurisdiction Act to include section 1A and 1B and 3A and 3B of respectively was thought to be an elixir for all procedural defects and technicalities. At some point established principles on the application of rule 5(2)(b) of the Court of Appeal Rules seemed to swept away by the blast of oxygen. In the case of African Safari Club Limited vs Safe Rentals Limited Court of Appeal, Nairobi Civil Application No. 53 of 2010 (Unreported) 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 O2 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 O2 principles, also recognised the longstanding principles which guide the court’s discretion. In Westmont Power (K) Limited vs Commissioner of Income Tax Nairobi Civil Appeal No. 128 of 2006 (Unreported) 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 Nairobi Civil Appeal No. 87 of 2007 (Unreported), 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."
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. I hope the Court of Appeal will in due course clarify some of these principles.
A word on fees
An advocate is ordinarily entitled to instruction fees upon receipt of instructions. The rules now oblige us to actually prepare for the case by drawing and preparing witness statements and filing all documents to be relied upon for hearing. This amounts to "getting up." Getting Up fees should be awarded upon filing of the case. The Advocates Remuneration Order should be amended to reflect this new requirement.