Breathing Legal Clarity: The Oxygen Principle in Kenya

The Oxygen Principle coined from Overiding Objectives (O2) is enshrined in Article 159(2)(d) of the Constitution of Kenya 2010, mandates that “justice shall be administered without undue regard to procedural technicalities.” This principle aims to ensure that justice is not hindered by rigid adherence to procedural rules, thereby promoting fairness and equity in the judicial process.

This article delves into the Oxygen Principle, its application in Kenyan courts, and relevant case law, providing a comprehensive understanding of its impact on the legal landscape.

The Emergence of the Oxygen Principle

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 Oxygen Principle emerged as a remedy to this problem, aiming to ensure that justice is not compromised due to procedural technicalities.

Legal Framework

The Oxygen Principle is primarily rooted in Article 159(2)(d) of the Constitution of Kenya 2010. Additionally, Sections 1A and 1B of the Civil Procedure Act and Sections 3A and 3B of the Appellate Jurisdiction Act reinforce this principle by emphasizing the need for just, expeditious, proportionate, and affordable resolution of civil disputes.

Application in Case Law

Several landmark cases have shaped the interpretation and application of the Oxygen Principle in Kenya:

1. Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission, Wilfred Rottich Lesan, Robert Siolei, Returning Officer, Bomet County, Kennedy Ochanyo,Wilfred Wainaina,Patrick Wanyama & Mark Manzo (Civil Appeal 228 of 2013) [2013] KECA 113 (KLR) (Civ) (22 November 2013) (Ruling): In this case, the Court of Appeal emphasized that while the Oxygen Principle allows for flexibility, it does not negate the importance of procedural rules. The court cautioned against the misuse of the principle to bypass essential procedural requirements.

   
   

2. Kenya Comemrcial Bank Limited v Kenya Planters Co-operative Union (Civil Application 85 of 2010) [2010] KECA 302 (KLR) (Civ) (7 May 2010) (Ruling): The applicant sought an extension of time to file an application after the statutory period had expired. The court, invoking the Oxygen Principle, granted the extension, recognizing the validity of the reasons provided for the delay.

   
   

3. Hunker Trading Company Limited v Elf Oil Kenya Limited (Civil Application 6 of 2010) [2010] KECA 480 (KLR) (24 March 2010) (Ruling): The court highlighted the importance of the principle in ensuring just and proportionate resolutions of disputes.

   
   

Benefits of the Oxygen Principle

The Oxygen Principle has several advantages:

• Promotes Fairness: By allowing courts to focus on substantive justice rather than procedural technicalities, the principle ensures that cases are decided on their merits.

  
  

• Enhances Access to Justice: The principle reduces the likelihood of cases being dismissed on technical grounds, thereby improving access to justice for all litigants.

  
  

• Encourages Judicial Discretion: Judges have greater discretion to make decisions that promote justice, equity, and fairness.

How the Oxygen Principle Affects Kenyan Legal Practice

The Oxygen Principle has profound implications for legal practice in Kenya. It ensures that:

• Rights Protection: Lawyers and legal practitioners must prioritize the protection and enforcement of constitutional rights in their practice. This principle compels legal professionals to approach cases with a focus on safeguarding fundamental freedoms.

  
  

• Judicial Review: Courts have a duty to scrutinize actions and decisions that may infringe on constitutional rights. The Oxygen Principle mandates that judicial oversight is robust and that any violations are addressed promptly.

  
  

• Legislative Framework: Legislators are tasked with enacting laws that align with the principles of justice and human rights. The Oxygen Principle serves as a guiding principle in the creation and implementation of legislation.

  
  

Challenges and Considerations

Despite its importance, the application of the Oxygen Principle faces several challenges:

• Enforcement Issues: Ensuring that rights are not only recognized but also enforced remains a challenge. There are instances where individuals struggle to access legal remedies or face delays in the judicial process.

  
  

• Public Awareness: There is a need for greater public awareness about constitutional rights and how to assert them. Education and advocacy play a crucial role in empowering citizens to understand and exercise their rights effectively.

  
  

• Resource Constraints: Legal aid and resources for marginalized communities can be limited, impacting the ability to uphold the Oxygen Principle universally.

  
  

• Potential for Abuse: There is a risk that litigants may misuse the principle to circumvent procedural rules, leading to delays and inefficiencies in the judicial process.

  
  

• Balancing Act: Courts must strike a delicate balance between applying the Oxygen Principle and upholding necessary procedural rules to maintain order and predictability in the legal system.

Conclusion

The Oxygen Principle is a cornerstone of Kenyan constitutional law, emphasizing that fundamental rights are essential and must be protected with utmost diligence. Recent case law illustrates how this principle is applied in practice, reinforcing its significance in ensuring justice and upholding human rights.

Legal professionals, lawmakers, and citizens alike must continue to champion the principle, ensuring that constitutional rights are not only recognized but actively protected and enforced.

For more information on the Oxygen Principle and how it impacts legal practice in Kenya, or if you require legal assistance regarding constitutional rights, feel free to contact our firm. Our experienced legal team is dedicated to upholding your rights and providing expert legal support.

The Oxygen Principle in Kenya