Substantive justice over procedural Law in Kenya; gains under the 2010 constitutional dispensation

Wanjala, Situma Jacob
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Strathmore University
Disputes are inevitable in any society. This calls for the establishment of disputes mechanisms that resolve disputes expeditiously and at affordable rates. The citizens should not be left to despair in the pursuit of justice but instead the legal institutions should create an enabling environment that enhances the delivery of justice at any forum1. For many years, technicalities were given prominence by our courts2. This made it very hard for the applicants in particular and the public in general to access justice. Access to justice was merely an appendage to the repealed constitution. The courts were reluctant to administer justice due to absence of the rules of procedure. Therefore, many litigants were driven away from the seat of justice before their cases could see the light of the day. The period prior to 2010, when the overriding objective principle and the constitution were promulgated, striking out of pleadings for reasons that were purely technical was the rule rather than the exception3. In many instances, cases were struck out of the record of the court for trivial failure on the part of the applicant to file submissions on time or serve the respondent with the applications4. This resulted in untold suffering to the people to the extent that they lost faith in our court systems5. The courts were obsessed with technically sound decisions, which according to justice mutunga, lead to the emergence of mechanical jurisprudence
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School
Substantive justice, procedural law, 2010 constitutional dispensation, Kenya