Due regard versus undue regard to procedural technicalities: the civil procedural tug-of-war

Abstract

In as much as the undue regard principle now finds anchoring in the Constitution, it is unclear what this guiding principle fully entails. This is evinced by the fact that there exists neither rules nor judicial pronouncements on what due vis-a-vis undue application is and the modalities of application it demands. As a result, there is need for a proper delineation of what amounts to due regard to procedural technicalities The aim of this research undertaking was to determine what due regard to procedural technicalities is visa- vis undue regard to procedural technicalities. The author sought to analyze the effect of Article 159(2)(d) of the Constitution that establishes that administration of justice is to be done without undue regard to procedural technicalities; to probe if and how courts orchestrate undue regard to procedural technicalities in the conduct of their business and assess the effects of undue regard to procedural technicalities in the civil justice system. The methodology adopted was desk-based research and the tools used were secondary data and included analysis of case law from the commonweal, the Superior courts of Kenya, the Civil Procedure Rules and procedural law texts. The chief discussion in the study was the need for predictable test by appraising the principle of Legal Certainty and a proposed test to guide the courts in determining what due regard to procedural technicalities is, aided by practice, legal principles and case law. The main recommendation was interventions to reform policy and legislation for the cessation of undue regard to procedural technicalities by courts and tribunals in Kenya to guarantee civil justice.