Save 20% off! Join our newsletter and get 20% off right away!

The illusion of judicial advancement: A commentary on judicial regard to procedural technicalities


“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 of the law from being enforced and is often simply used to denote any portion of the law that interferes with the outcome desired by the user of the term.”[1]

A keen reading of Article 159(2)(d) of the Constitution of Kenya, 2010 gives the idea that the courts have switched their focus from focusing on procedural technicalities.[2] An ordinary citizen or even legal practitioners may also argue that our courts no longer have a keen interest in matters of procedure and are only interested in substantive issues. But in spite of that, our case laws indicate that the judicial practice takes a sharp detour. The law applicable on the ground is slightly different from the actual written rules since some of our judges and magistrates anchor their judgments and rulings on procedural technicalities.

Origin of procedural technicalities

The issue of procedural technicalities has its foundation in the history of English laws. Procedural errors led to losing of very good cases on flimsy grounds. The common law was too rigid due to the application of case laws courtesy of the doctrine of judicial precedent. The principle of stare decisis was applicable where the material facts of the cases were the same and when the court that made the earlier decision belonged to a higher ranking in the hierarchy of courts. Notably, the principle is still applicable up to date albeit with little or no modification from how it was being used in the olden days.

Litigants began petitioning the king for a review of their cases. The king in his wisdom or lack of it established the court of chancery in an attempt to deal with some of the complaints that he received. It was intended to administer morality rather than law and to provide relief beyond the purview of common law courts. It was first an appeal to the king to do justice, or to go “at the foot of the throne,” as it was termed, to provide what the common law courts were unable to do due to their inadequate machinery. This, however, was not of great help since it soon carried with it the very challenges that it had been established to deal with. The chancery soon became a ghost of its former self. It is unimaginable that it ended up surpassing the dismal levels that had been set by its predecessor, common law. 

Misery loves company. This is the gospel truth for what English courts and legal systems used to be. In addition to the challenges highlighted above, there was the use of the writ system which was problematic. In those days, there were perhaps sixty different common law writs since there were separate writs for separate claims.[3] In fact, as has been stated, the chancery clerk’s office in those days resembled an arsenal. Every man who appeared in court was required to select his weapon from a very large selection. Regrettably, he was only allowed to choose one, and he was not allowed to change it during the progress of the game and the game itself was not to be decided by the weight of incontrovertible evidence but rather by the player’s skill and adherence to the formal rules.[4] By the end of the seventeenth century, the costs, delays, and inconveniences of chancery practice had surpassed those of common law practice.[5] 

The taking of all the evidence through interrogatories was laborious and never-ending, and delays in chancery courts were significantly worse than in common law courts. There were countless parties in a chancery case. It was necessary for everyone who was interested to be included as a party, regardless of whether they were the plaintiff or defendant. Should one of these multiple parties pass away, a bill of revivor was required while the case was in progress to close the loophole, and this was likely to occur once or more per year when there were thirty or forty parties involved.[6]

In terms of the course of action, the common law judges were especially rigorous. If the pleader chose the incorrect form, he would not be eligible; he tried a different one at his own risk and was fortunate if, on the third attempt, he selected the appropriate one. In none of the courts he tried, the judges considered whether or not an action would be based on the facts submitted, simply that the specific type of action would not be based on those facts.[7] It is very evident therefore that substantive law took second place to procedural law. Matters of procedure took precedence over the real issues that ought to have been tackled.

The no-nonsense demand for procedural adherence is a concept not unique to England alone. With time, this injustice spread far and wide especially to states that apply the common law legal system. United States for example still suffers the harm of procedural technicalities up to this very moment. There have been frantic attempts to make progress with little positive achievements. United States of America legislators revised procedural laws in the 19th century, but the courts developed a complex and frequently highly technical body of doctrine regarding who might testify about what in a trial. This expanding body of law made it possible for courts to have more influence over how trials turned out. An appellate court only needed a mistake in the admission of evidence to overturn a decision.[8]

Around the turn of the 20th century, it was a common complaint that because of evidentiary mistakes, appellate courts were granting too many new trials. Many common-law nations underwent modifications in the 20th century in response to this issue, preserving the law of evidence while no longer considering minor mistakes to be grounds for overturning a decision.[9] These efforts, nevertheless, have proved to be a drop in the ocean in the long and tiresome push to do away with undue regard to technicalities. Remarkably, states have been realising that procedural technicalities work against the whole goal of accessing timely and efficient justice.

The multiplicity of courts is yet another factor that leads to the procedural technicality. In England for example, instead of being created from the beginning, their court system has grown and developed over the course of a thousand years. This has produced a framework that is convoluted and, at times, unclear. Various case kinds are handled by particular courts and follow various paths to the Court of Appeal.[10] The resultant effect of this is that filing of a case on a wrong court lead to losing the case on the basis of procedure. This in the long run leads to undesirable injustice being suffered by those who intended to get justice from courts.

Kenyan context

History repeats itself and the more things change the more they remain. For us to have a clear understanding of our judicial advancement, we must be open-minded to appreciating the prolonged journey that our judiciary has traveled.  There is a need therefore to comprehend the dark past that we are coming from so that we may not err by going back. We reckon that our judiciary has made splendid adjustments since it was first established. Nonetheless, there is still room for improvement as the implementation of the said changes remains a challenge.

Kenya like the rest of the common law countries held so dear the stern procedural requirements. The court pronounced itself by defining the term technicality and further expounding on undue regard to procedural technicalities in the case of James Mangeli Musoo v Ezeetec Limited. The judge held: “A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decisions on court matters. Undue regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature. It does not, from the onset or in any way, oust technicalities. It only emphasizes a situation where undue regard to these should not be had. This is more so where undue regard to technicalities would inhibit a just hearing, determination or conclusion of the issues in dispute.”[11]

The court held in the case Gitau v Kenya Methodist University (KEMU) (Petition 5 of 2020) [2021] KEHC 322 (KLR) (8 December 2021) (Ruling) that courts are constitutionally obligated to adopt an approach that prefers the determination of cases on merits as opposed to procedural technicalities. Simply put, to be preferred is an approach that places emphasis on merits as opposed to undue technicalities. Courts should critically examine the meaning of the “on the merits,” how the principle has permeated our procedural theory and architecture, courtesy of our transformative, liberal and progressive Constitution and why, despite the allure of the procedural rules, we should prefer the “determination on the merits” principle.[12]

In practice the Kenyan courts have overemphasized technicalities despite the clear directions in Article 159(2)(d) of the Constitution. Article 159(2)(d) encourages the courts to administer justice without undue regard to technicalities. Many are times that the courts have given undue regard to technicalities contrary to article 159(2)(d) of the Constitution, the following are case law illustrations:

In Republic v Karisa Chengo & 2 others [2017] eKLR the Supreme Court of Kenya was called upon to decide whether judges of the special courts can exercise the Jurisdiction of the high court. In this case, the defendants had committed criminal offences and were convicted in various Magistrates’ Courts. The former Chief Justice Dr. Willy Mutunga declared a judicial week dedicated to hearing criminal appeals in the high court. Vide a gazette note he appointed Meoli J. of the High Court and Angote J. of the Environment and Land Court (ELC) to hear the criminal appeals of the defendants. The judges heard and dismissed the respondents’ appeals.  The issue of contention inter alia was as to whether Angote J a judge of the ELC had jurisdiction to hear their appeals. The Court of Appeal declared the proceedings of the mixed bench null and directed that the appeals be reheard by judges of competent jurisdiction. The Supreme Court followed suit by declaring the proceedings null. It cited the difference in jurisdiction between the High Court and the Environment and Land Court. It also added that judges of the ELC in addition to having general requirements of being a judge were required to have experience on matters of environment and Land.[13]

The issue of multiplicity of courts is experienced in Kenya majorly because we borrow heavily from the British system. Overlapping jurisdiction has been identified in judicial review and constitutional courts. In Korea, jurisdiction of judicial review is awkwardly divided between the constitutional court, this has led to a complication of procedure and power struggle between the courts.[14] Kenya experiences a similar problem where the jurisdiction of a subject matter is divided between courts. This complexity has led to cases being dismissed on technicalities in the interest of justice. You find that the jurisdiction on the subject matter of Labour law is spread between the High Court constitutional division and the three newly founded divisions of the Employment and Labour Court.

This issue can be illustrated in Constantine Joseph Advocates LLP v Attorney General [2022] eKLR. In this case, the petitioner had a matter which was cutting across the jurisdictions of the High Court and the Employment and Labour Court. The High Court determined the case and dismissed the case on grounds of jurisdiction and transferred the case to the Employment and Labour Relations Court. This transfer of cases on grounds of procedural technicality causes a lot of delay and it is against the interests of justice. The court can as well decide the case substantively to prevent wasting judicial time and resources.

Although there are many cases that show overemphasis on the procedure, there are others that have been decided well pointing us in the right direction and staying true to Article 159(2)(d) of the Constitution. One of these cases is Sonko v County Assembly of Nairobi City& 11 others [2022] KESC 76 (KLR). In this case, the party did not specify which of the two grounds of appeal under Article 163(4) of the Constitution the appeal was brought under. The respondents’ preliminary objection would have been sufficient to dispose of the appeal in its entirety on grounds of jurisdiction. The Supreme Court did not however dispose of the appeal.  The apex court allocated itself jurisdiction by identifying one of the grounds in Article 163(4) from the submissions and pleadings of the appellants. The court held that this was one of the cases that warranted the extension of the principle in Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Law Limited [1989] KLR.[15] The court extended the principle to carry out its constitutional obligation to develop jurisprudence on public interest matters and guide the courts below on matters of interpretation and application of the constitution.[16] This way the court shelved the procedures of the court to decide the case on its merits. This saved the court’s judicial resources and went on to serve other constitutional purposes.


The common law system was built by trial and error. The British have tried to shed off some of the aspects of common law that impede access to justice. The Americans have also taken steps back to scrutinize their borrowed system to make it better. It is also time for Kenya to embark on operationalizing Article 159(2)(e) of the Constitution of Kenya, 2010. The judiciary should also overhaul the High Court which has many divisions with overlapping jurisdictions to improve on justice delivery and scale down the procedural technicalities.

Michael Omondi Odhiambo has a keen interest in socio-economic issues. He is interested in the correlation between politics and law.

Omori Donatus is a law enthusiast who is particularly interested in the inner workings of the law and its effect on our day-to-day lives.

[1] Musembi Emmanuel Nzak, Due Regard versus Undue Regard to Procedural Technicalities: The Civil Procedural Tug-Of-War Technicality, citing Dictionary for US,  accessed on729 April 2022.

[2] Article 159(2)(d).

[3] John Davison Lawson, Technicalities in Procedure Civil and Criminal, 1 J. Am. Inst. Crim. L. & Criminology 63 (May 1910 to March 1911)

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid

[8] English common law (no date) Encyclopædia Britannica. Encyclopædia Britannica, Inc. Available at:  (Accessed: April 6, 2023).

[9] Ibid.

[10] Structure of the Courts & Tribunals System (2022) Courts and Tribunals Judiciary. Available at:  (Accessed: April 7, 2023).

[11] James Mangeli Musoo v Ezeetec Limited.

[12] Gitau v Kenya Methodist University (KEMU) (Petition 5 of 2020) [2021] KEHC 322 (KLR) (8 December 2021) (Ruling)

[13] R v Karisa Chengo & 2 others [2017] eKLR

[14] A theory of judicial power and judicial review, Georgetown Law Journal vol. 97 issue 3 (2009) 723- 802

[15] Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Law Limited [1989] KLR

[16] Sonko v County Assembly of Nairobi City& 11 others [2022] KESC 76 (KLR)

Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at