Breathing Life into Justice: How Kenya’s Oxygen Principle Transforms Civil Procedure

I. Introduction

The legal system is often criticized for being slow, rigid, and overly technical, leading to delayed or even denied justice. Recognizing these challenges, Kenya introduced the Oxygen Principle to ensure that the civil justice system remains fair, efficient, and accessible. This principle, embedded in the Civil Procedure Act (CPA) and Civil Procedure Rules, aims to shift the focus from procedural formalities to substantive justice.

This article explores the origin, impact, and future of the Oxygen Principle, demonstrating how it has transformed Kenya’s civil litigation landscape.

II. Understanding the Oxygen Principle

Definition and Origins

The Oxygen Principle is an overriding objective in Kenya’s civil justice system, ensuring that courts administer justice fairly, efficiently, and without undue technical barriers. It was introduced through Sections 1A and 1B of the Civil Procedure Act to modernize litigation and prevent cases from being dismissed purely on procedural grounds.

Before its introduction, courts often struck out cases due to minor technical errors, denying parties the chance to have their disputes determined on merit. The Oxygen Principle overrides strict procedural rigidity, ensuring that rules serve the interests of justice rather than acting as obstacles to it.

Key Provisions in the Law

The principle is explicitly outlined in the Civil Procedure Act, which states:

Section 1A – The Overriding Objective

Courts must ensure the just, expeditious, proportionate, and affordable resolution of civil disputes.

All parties—including judges, lawyers, and litigants—must cooperate to achieve these objectives.

Section 1B – Duties of the Court

Courts must ensure fairness, efficiency, and cost-effectiveness in civil proceedings.

Judges have the discretion to apply rules flexibly to prevent injustice.

The principle encourages the use of alternative dispute resolution (ADR) mechanisms.

By emphasizing substance over form, the Oxygen Principle acts as an overriding objective that guides all civil litigation in Kenya, ensuring that courts focus on delivering justice rather than enforcing rigid procedural rules.

III. The Impact of the Oxygen Principle on Civil Litigation

  1. Reducing Procedural Technicalities

Before the Oxygen Principle, civil cases were often dismissed for minor errors—such as missing a deadline by a day or filing a document in the wrong format. Today, courts have more discretion to consider whether such errors prejudice the other party before dismissing a case.

  1. Enhancing Access to Justice

The principle has particularly benefited self-represented litigants (litigants in person) who may not be well-versed in legal technicalities. Courts are increasingly showing a willingness to support individuals rather than punish them for minor errors. This shift reflects a growing understanding that everyone makes mistakes, and it’s encouraging to see the legal system take a more compassionate approach.

  1. Empowering Courts to Prioritize Substantive Justice

Judges now emphasize the case’s merits instead of strictly following procedural rules. This ensures that legitimate claims are fairly heard and resolved.

  1. Encouraging Alternative Dispute Resolution (ADR)

The principle promotes mediation, arbitration, and negotiation for quick dispute resolution, minimizing backlog and costs.

IV. Case Law and Judicial Interpretation

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

Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 6 others [2013] eKLR

The Supreme Court emphasized that rules of procedure should not be applied rigidly if doing so results in injustice.

Deynes Muriithi & 4 Others v. Law Society of Kenya & Another [2016] eKLR

The Court of Appeal held that substantive justice should override procedural technicalities unless procedural compliance is essential to justice.

Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others [2011] eKLR

The court ruled that delays and procedural lapses should be excused if they do not cause undue prejudice to the opposing party.

These rulings illustrate how courts apply the Oxygen Principle to balance procedure and fairness.

V. Challenges and Criticisms

Despite its benefits, the Oxygen Principle faces some challenges:

  1. Risk of Abuse by Litigants

Some parties exploit the principle by filing incomplete or improperly drafted documents, expecting courts to overlook their mistakes.

  1. Judicial Discretion and Inconsistency

Different judges may interpret the principle differently, leading to inconsistencies in rulings.

  1. Need for Training and Awareness

Despite advancements in legal practices, some attorneys and court officials cling to strict procedural rules, which can hinder a full embrace of the underlying principles of justice. This rigidity often creates obstacles that challenge the flexibility needed for a more comprehensive application of the law.

VI. The Future of Civil Procedure in Kenya

To maximize the impact of the Oxygen Principle, the following steps should be taken:

  1. Strengthening Court Guidelines

Courts should develop clear guidelines on when procedural lapses can be excused, ensuring consistency.

  1. Promoting Legal Awareness

Litigants and legal practitioners should be educated about the principle to prevent misuse.

  1. Leveraging Technology

The judiciary should continue adopting digital filing systems and virtual court sessions to streamline procedures and reduce technical errors.

VII. Conclusion

The Oxygen Principle has significantly reshaped Kenya’s civil procedure by redirecting the emphasis from rigid technicalities to core values of justice, fairness, and efficiency. This transformative approach aims to create a more equitable legal landscape, where the needs and rights of all parties are paramount. Although challenges remain in fully implementing this principle, its integration has steadily enhanced accessibility and fairness in the litigation process.

At D. Otunga & Associates, we wholeheartedly advocate for these crucial legal reforms. We are committed to promoting advanced judicial training and leveraging cutting-edge technology to ensure that Kenya’s civil justice system evolves into one that is not only just and efficient but also centered around the people it serves. Our efforts breathe new life into the legal process, empowering individuals and communities to navigate the complexities of the legal framework with confidence and clarity.

Scroll to Top