Supreme Court turned back the wheels of justice in rejecting affidavit on technicalities

Lawyers Ochieng’ Oduol (left) and George Oraro, who represented PM Raila Odinga in his recent petition challenging IEBC’s declaration of Uhuru Kenyatta as President-elect, at the Supreme Court. File 

As the dust settles on last Saturday’s landmark Supreme Court decision on the March 4 presidential election, it may be appropriate to reflect on how the conduct of the petition may affect the practice of law in Kenya

One must start by looking at what the Constitution says and what the Judiciary’s position has been in the conduct of litigation since the transformation began two years ago under Chief Justice Willy Mutunga.

Of interest to legal practitioners and all those who support the course of justice is the Supreme Court’s recent decision to disallow evidence brought in court by a petitioner on technicalities that in the minds of many Kenyans ended with the coming into force of the current Constitution. 

The Judiciary Transformation Framework 2012-2016 clearly defines the high-level protection that the Constitution guarantees citizens in matters of litigation.

“The Constitution guarantees equal protection of the law for everyone,” it says. “It, therefore, demands that justice must be done to all irrespective of status and that all state organs must assure access to justice for all persons. These twin constitutional demands require that justice be delivered expeditiously and without undue regard to technicalities.

“In particular, the Judiciary shall leverage and build on the new Supreme Court established by the Constitution to engage in progressive jurisprudence conscious of and faithful to the constitutional basis of its origins and mandate.” 

Doubts abound whether given its recent ruling that struck out a further affidavit in Presidential Election Petition No.5 of 2013, the Supreme Court kept to the policy as defined in the above transformation framework.

On March 25, 2013 the respondents in the said presidential election petition asked the Supreme Court to strike out an affidavit filed by the petitioner on the grounds that it had been filed out of time and without leave of the court.

The petitioners on their part resisted that attempt on grounds inter alia that the Constitution dictates that the Judiciary should undertake its mandate without due regard to procedural technicalities.

But in its ruling delivered on March 26, 2013 the Supreme Court struck out the new affidavit holding, among others, that leave ought to have been sought before it was filed.

It further stated that the interpretation of Article 159(2) (d) of the Constitution on “undue regard to technicalities” did not mean that procedural technicalities imposed by either the Constitution or written law may be ignored. 

The question that arises in the aftermath of the ruling is what it portends to the practise of law in Kenya. Since the promulgation of the Constitution and the advent of the new Civil Procedure Act and Rules and the Court of Appeal Rules (oxygen rule), the practice of law in Kenya has evolved from adherence to procedural technicalities in favour of substantive justice.

Indeed the new Judiciary has generally adopted an approach that abhors technicalities in the dispensation of justice. The Chief Justice and President of the Supreme Court Willy Mutunga has time and again reminded lawyers that the era of reliance on procedural technicalities is gone.

That position is also fortified by the Supreme Court Act, the Supreme Court Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of The Constitution) Practice and Procedure Rules 2012.