Section 100: Court can amend defects/errors in proceedings to determine the real issue.
Order VII Rule 2 of Uganda Ordinance: Plaint rejected if it doesn't disclose a cause of action.
Facts:
Suit against payee/endorser of a promissory note.
Plaint lacked averment of notice of dishonor.
Defense: Plaint disclosed no cause of action.
Trial magistrate: Amended Plaint, gave judgment against defendant.
Appeal:
Ground: Plaint should have been rejected, no power to amend.
High Court question: Was the amendment proper, or was the magistrate bound by Order VII Rule 2?
Court held:
Plaint disclosed a cause of action, but a necessary averment was omitted.
Amendment was permissible under the Act, even with Order VII Rule 2.
'Does not disclose a cause of action' means no legitimate amendment can give it a cause of action.
Amendment allowed under Section 99 to rectify a bona fide mistake.
The Act prevails over conflicting Rules.
S S Gupta v Inder Singh Bhamra [1965] EA 439
Further illustrates the point that the Act prevails over inconsistent rules.
Plaintiff: Sued defendant as drawer of a dishonored check.
Plaintiff: Filed an amendment without leave under Order VII Rule II, explaining why notice of dishonor wasn't necessary.
Defendant: Applied to disallow the amendment.
Plaintiff: Argued that the amendment was proper under Section 99 of the Ordinance.
Court ruled:
The rule should not conflict with the Civil Procedure Ordinance.
Inconsistent rule = ultra vires.
Unfettered power in Act, limiting rule = inconsistent, ultra vires.
Two constructions possible: choose the one consistent with the Act.
Other Rules
Act/rules are not exhaustive, but intended to apply to all civil matters.
Other statutes can provide specific jurisdiction, complementing Civil Procedure Rules.
When a Statute mandates application of the Act/rules, they should be applied.
Court with Jurisdiction: Can exercise jurisdiction, even if rules are lacking.
Section 3: If specific procedure is provided by an Act of parliament, that procedure should prevail.
Court Principle: Procedure is permissible unless prohibited, not prohibited unless permitted.
Mansion House Ltd. V John Wilkinson (1954) 1EACA 98
Case illustration of Court Principle for Procedure.
Winding up via Originating Motion (OM).
OM wasn't in Civil Procedure Ordinance; original authority was in English company winding up rules.
Court:
Primary civil jurisdiction is exercised under Cap 21.
Court applies laws creating special jurisdiction, power, or procedure.
Re Parbat Shah (1955)22 EACA 381
Repeated Mansion House ruling.
Kenyan courts' jurisdiction:
Based on local legislation.
Applied foreign laws, including civil and criminal jurisdiction of the High Court in England when local laws are silent.
Applications for habeas corpus and prerogative writs:
Made in English Courts, either civil or criminal.
Kenyan High Court has jurisdiction under either its civil or criminal side, based on nature of proceedings.
Inherent Powers of the Court
Jurisdiction exists, procedure lacking: Judge/magistrate must devise a convenient procedure to serve justice.
Court can't refuse justice due to lack of procedure.
Section 3A of the Act: Power to make orders necessary for justice, prevent abuse of process.
'Inherent Power': Not defined, Monreal Trust Co. v Churchill Forest Industries attempted a definition:
Sir Jack I.H. Jacob: "reserve or fund of powers…which the court may draw upon…to ensure due process…prevent improper vexation…do justice…secure a fair trial".
Inherent Jurisdiction vs. General Jurisdiction
General jurisdiction: Unrestricted power in civil/criminal cases.
Only taken away by unequivocal statutes.
High Court: Unlimited original jurisdiction, full judicial power, not subject to supervisory control.
Inherent jurisdiction: Aspect of general jurisdiction.
Inherent vs. Statutory Jurisdiction
Statutory jurisdiction: Defines limits of granted jurisdiction.
Inherent jurisdiction: Derives from the court's nature as a court of law.
Magistrate’s Courts Act: Sets out monetary jurisdiction of each class of magistrate (example of statutory jurisdiction).
Rules of the Court
Beyond Civil Procedure Rules: Regulations and Directions guide court process.
Practice directions: Issued by Judicial Officer or Chief Justice for orderly conduct of court business.
Case Law as a Source of Procedure
Case law can give procedural direction.
Tiwi Beach v Stamm (1991) KLR 658: Court of appeal upheld injunction despite non-disclosure of material fact.
No deliberate concealment.
Court would have granted the order anyway.
System of Courts
Chapter Ten of Constitution (Articles 159 to 173) deals with the Judiciary.
Article 162: System of courts.
Superior courts: Supreme Court, Court of Appeal, High Court, and courts with status of High Court established by Parliament.
Parliament-established courts deal with Employment/labor, Environment, land use/title.
See Gazette Notice No. 9123 of 2015.
Article 169: Sub-ordinate courts.
Magistrate’s courts.
Kadhis courts.
Courts martial.
Other courts/local tribunals established by an Act of Parliament other than those under Article 162 (2).
Hierarchy of Magistrate’s courts (descending):
Chief Magistrate.
Senior Principal Magistrate.
Principal Magistrate.
Senior Resident Magistrate.
Resident Magistrate.
District Magistrate.
Up to (e): officers preside in Resident Magistrate’s Courts, jurisdiction throughout Kenya.
District Magistrate’s Court: Established for each district, jurisdiction throughout the district, presided over by a District Magistrate (First, Second, or Third Class).
Districts are obsolete, but the Act hasn't been amended.
The ‘Double O’ or the Oxygen Principle
Sections 1A and 1B of Civil Procedure Act Cap 21 (revised 2009) for High Court/Subordinate courts, Magistrates Court Act Cap 10.
Appeals to Court of Appeal: Sections 3A and 3B of the Appellate Jurisdiction Act Cap 9.
Similar wording across statutes.
Cap 21 1A (1): overriding objective is just, expeditious, proportionate, affordable resolution of civil disputes.
Cap 21 1A (2): Court to give effect to overriding objective.
Cap 21 1A (3): Parties/advocates must assist the Court.
Cap 21 1B (1): Court shall handle matters for attaining:
Just determination.
Efficient disposal of business.
Efficient use of resources.
Timely disposal at affordable cost.
Use of suitable technology
Sections 3A and 3B of Cap 9 apply only to appeals to the Court of Appeal
Principle also grounded in Article 159 of the Kenya Constitution 2010.
Civil Appeal (Application) No. 277 of 2005: Mradula Suresh Kantaria versus Suresh Nanalal Kantaria
Double O principle discussed re: striking out Notice of Appeal/Record of Appeal due to failure to serve Notice of Appeal on all affected parties (Rule 76 (i) of the Court of Appeal Rules)
Ruling delivered after amendment to Acts enacting the principle.
Judges summarized 'Double O' purpose:
Enable case management principles.
Attainment of justice should be fair and cheap.
Expressed differently: Facilitate just, quick, cheap resolution of real issues.
Embraced Puruse Pty Limited vs Council of the Cty of Sydney (2007) NSWLEC) 163:
Power must be exercised judicially with factual foundation.
Not a panacea, application foundation must be laid, advantages judicially ascertained.
Overriding objective cannot override fundamental principles of law.
Application to strike out granted.
Essential to have all affected parties before the Court.
Corridors of justice shouldn't lock out parties, in keeping with constitutional right to due process.
Civil Application No. 6 of 2010 Hunker Trading Company Limited vs Elf Oil Kenya Limited
Application grounded on Sections 3A and 3B of the Appellate Jurisdiction Act requesting for Orders of Stay of Execution, a similar application having been made in the High Court and been granted on condition of deposit of K.Shs 5,000,000/=
Applicant also failed to comply with those conditions
Judges emphasized Section 1A (3) of the Civil Procedure Act.
Applicant breached Section 1A(3) of Civil Procedure Act & Section 3A (3) of Appellate Jurisdiction Act by failing to comply with High Court order.
Applicant has duty to obey all processes/orders, abused Superior Court process, violating “O2” or “oxygen principle”.
The O2 Principle is intended to re-energize processes/promote good management.
Action of Applicant covered in High Court now through Court of Appeal Rules: waste of resources, abuse of processes, violation of the principle.
Cited Court of Appeal Application No. NAI 190 of 2009 Caltex Oil Limited vs. Evanson Wanjihia: Court given greater latitude to overcome technicalities/achieve overriding objective.