Overriding objectives in litigation

  

Date Posted: 10/9/2011 11:29:09 PM

Posted By: Brendah Aroko  Membership Level: Gold  Total Points: 3317

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INTRODUCTION
The oxygen principles have evolved from the term overriding objectives whereby the double Os have been combined to make the oxygen principles. The new civil procedure rules (2010) have been amended to include sections 1A and 1B in the appellate jurisdiction act and sections 3A and 3B as well. These principles ensure that the judicial and administrative resources are used efficiently by the respective parties involved in certain claims in courts. In the case of Hunker Trading Company Limited v Elf Oil Kenya Limited (2010) This decision being the first on the application based on the new provisions of the appellate jurisdiction act section 3A and 3B which provides that the overriding objectives in civil litigation aims at facilitating just, expeditious, proportionate and affordable resolutions on an appeal.
AIMS OF THE OVERRIDING OBJECTIVES IN CIVIL LITIGATION
(1)Ensuring that the parties are on equal footing and positions when awarding costs. Equity always protects the just rights of the oppressed and also prevents an injustice being perpetrated. Equity started becoming formal and in an attempt to reduce vagueness, maxims of equity developed. In the case of Alan Kiama v Ndia Mathunya and others (1978)
(2)Enactment of the oxygen principles brings into focus the fundamental purpose of civil procedure which is to ensure that the courts deal justly and fairly in handling cases brought before them. Dealing justly with cases include:-
Dealing justly with the cases in all ways which are proportionate to:-
The amount of money involved. Unless there is no reason, the court will not depart from the ordinary practice whereby the plaintiff being in error by filing the case in a wrong court, the defendant cannot be made to suffer for the plaintiff’s mistake. The plaintiff must, therefore pay the defendants costs. Further fees will be chargeable to the

plaintiff on filing his plaint in the proper court. Boustead and Clarke Ltd v Omar Ismail.
To the importance of the case. Every suit shall be instituted in the court of the lowest grade competent to try it. There is also a proviso in section 11 that the plaint shall be returned to be presented to the lower or higher than that of the court competent to try it.
To the complexity of the issues. If a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and void to the effect as to estoppels or otherwise and may be declared void by every court in which they may be presented. In the case of Seid Bin Seif v Sharriff Mohamed Shatry (1940)
To the financial position of each party. Unnecessary expenses should not be incurred by the litigant and the courts should always ensure that the due administration of justice does not cause such expenses. A taxing officer and judges owe a duty to the public to see that the costs are not allowed to rise to such a level as to deprive of access to the courts all but the wealthy.The case which commonly elaborates on this fact is Meru farmers co-operation union ltd v Abdul Aziz Suleman(1966)
This is the motivation behind the three tracks of case which are:-
Small claims tracks
Fast tracks
Multi tracks
These tracks are governed by different rules.
(3)Ensuring that a case is dealt with expeditiously and fairly. This means that parties who are not satisfied by reached by the lower courts may always appeal against the order to a court higher in rank than the previous one
(4)Saving expenses. The court will always consider offers to settle and cooperation when it comes to awarding costs and interests .The award of interests on a decree for the payment of money is a matter of entirely within the courts discretion and therefore such discretion must be judicially exercised and where no reasons are given for the exercise of a judicial discretion in a particular manner then it will be assumed that the discretion has been correctly exercised unless the contrary be shown.
(5)Allotting to a case an appropriate share of the court’s resources to other cases. In working out the total subject matter of the suit, courts must look to the principal amount awarded by the judgments in all cases to determine the value of the subject matter.
Section 3A(3) of the appellate jurisdiction act states that It is the obligation of the parties to assist the court in furthering the overriding objectives by informing the court of any agreements to settle or that the matter is unlikely to proceed so that the court does not waste time on a matter that is not likely to proceed . It is also upon the courts to actively manage cases so that they are dealt with justly.



IMPACTS OF OVERRIDING OBJECTIVES ON LITIGATION
By following these principles of overriding objectives the likely impacts of litigation include:-
(1)Advanced planning and preparation. Cases will be analyzed and issues identified at a very early stage to enable completion of the case management questionnaire. This helps to weed out unmeritorious claims and defenses and promote settlement. When cases are analyzed at an early stage it is beneficial for the court since they will not have to spend extra time going over matters that are of no importance and focus only on the main subject matter. During the preparation stage the court should decide the order in which issues are to be resolved.
(2)Stricter court deadlines. The courts will be less likely to grant time extensions and will require strict adherence to court determined timetables and milestone dates. By fixing timetables or otherwise controlling the progress of the case less time will be spent on adjourning a case due to absence or lateness.
(3)Fewer interlocutory applications. The requirement for economy and proportionality requires that summary assessment of costs and costs sanctions for only necessary interlocutory applications only. By doing this the courts will ensure that they deal with as many aspects of the case as it can at the same occasion.
(4)Greater use of alternative dispute resolution. Active case management by the court specifically includes encouraging parties to use Alternative dispute resolution and provide for possible sanctions against parties who unreasonably refuse to comply. The courts should consider whether the likely benefits are taking a particular step justify the cost of taking it if not so then they are forced to encourage the parties to resort to alternative dispute resolution methods.
(5)Greater court intervention. Steps should be taken in proceedings and the pace at which they are taken will be supervised and determined by the court, rather than left in the hands of the parties. This helps eliminate delaying tactics and unnecessary applications and ensure that parties focus on the real issues in dispute. The courts will determine which issues need full investigation and trial and accordingly dispose summarily others.
(6) Change in litigation culture. The new rules 2010 encourage cooperation between the parties in the conduct of the proceedings, which should facilitate more settlements. With the advancement of technology courts should opt for more advanced methods of recording and storing proceedings. This will also reduce the amount of time spent in hearing of cases as well as the amount of money spent on travelling to court every time .
The civil law system is the most widespread in the world and the sources of law that are recognized are the constitution and statutes passed by the legislature this are required to conform to the constitution in order to ensure that justice is provided without undue regard to technicalities.
REFERENCES
Judicial hints on civil procedure, Richard Kuloba 2nd edition 2005
http:/www.kenyalaw.org
http://kenyanjurist.blogspot.com/2010_12_01.

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