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The illusion of judicial advancement: A commentary on judicial regard to procedural technicalities
Procedural technicalities are peculiar to most legal systems. Every legal system is trying to ensure justice is delivered without undue regard to procedural technicalities. Kenya has not been left behind; it has enacted this principle in Article 159(2)(d) of the 2010 Constitution. This provision provides that in the exercise of judicial power, procedural technicalities should not be given undue regard. However much of this has been provided for in the Constitution of Kenya, 2010, the operationalization of the provision has proven to be problematic. In practice, judges give undue regard to matters of jurisdiction, procedure and other technicalities. There is also a multiplicity of courts in Kenya especially in the High Court which complicates matters of procedure. Many cases today are thrown out on the grounds of being in the wrong forum. Despite these flaws, Kenyan courts have tried to operationalize Article 159(2)(d) and to better on justice delivery. Therefore, for Kenya to be a role model in matters of justice, it has to shed off its old skin.
Introduction “Legal technicality is a casual or colloquial phrase referring to a technical aspect of law and it is not a term of art in the law, has no exact meaning, and does not have a legal definition. That notwithstanding, the term implies that strict adherence to the letter of the law prevents the spirit […]