SANCTIONS FOR

CONTRAVENING
OVERIDDING
OBJECTIVES
 Firm 14E

1. Felix Opondo (Chairperson) – 20231192

2. Otieno Lilian Adhiambo (Secretary) – 20230920

3. Chebet Mercy – 20231141

4. Halima Hamadi Garashi – 20231491

5. Irine Akinyi Owuor – 20230973

6. Patricia Kahindi – 20230989

7. Simon Mwangangi – 20230079

8. Wanjala Jafred – 20231052

 What are sanctions?
 Black’s Law dictionary defines sactions as a penalty or punishment
provided as a means of enforcing obedience to the law.

 Cambridge dictionary also defines sanctions as a strong action taken in

order to make people obey a law or rule or a punishment given when
they do not obey.

 Thus, sanctions for contravening overriding objectives can be defined

as penalties imposed on acts that amount to contravening of the
overriding objectives.

 The court in dealing with contravention of overriding objectives may

give sanctions and/or remedies.
 Cont.
 The application of the sactions when overriding objectives are contravened

varies on a case to case basis.

 Kenya Commercial Finance Company Limited vs. Richard Akwesera Onditi

Civil Application No. Nai. 329 of 2009 the Court of Appeal expressed itself as

follows:

“In applying the principle or concept of overriding objective, each case

must be viewed on its own peculiar facts and circumstances and it would

be a grave mistake for anyone to fail to comply with well settled

procedures and when asked why, to simply wave before the court the

provisions of sections 3A and 3B of the Appellate Jurisdiction Act”.

 SANCTIONS IMPOSED ON PARTIES/LITIGANTS FOR
CONTRAVENING THE OVERRIDING PRINCIPLES
 Sanctions can be imposed either on parties for contravening the

overriding objectives or on advocates for failure to comply with the

overriding principle.

 Sanctions that can be imposed on the parties/litigants for contravening

the overriding principles include:

a) Costs

b) Striking out pleadings

c) Default judgement
 a) COSTS
 If a party or their representative acts unreasonably and causes
unnecessary costs, the court may order that party or their
representative to pay some or all of the costs incurred by the other
party this may include the payment of legal costs, expenses. The court
may further direct a person to pay some or all of the costs of another
person arising from the contravention. The courts may order that the
legal or other costs of a person be payable and enforceable
immediately.

 The case of Nuru Ruga Ali & Another v Commodity House Ltd & 3 others
(2021) eKLR the court ordered that the suit which had been dismissed
due to applicant seeking adjournment be re opened and parties Canvas
the issues on merit. The appeal was allowed with costs to the
respondent since he moved the court to dismiss the case in the lower
court. The case involved negligent driving that resulted to death of
 b) STRIKING OUT THE

PLEADINGS
Courts may in certain instances where parties try to hide their negligent acts and mistakes in the name of

oxygen principle strike out the pleadings as such would amount to misuse of the principle. This was the

supreme court decision in the case of Evance Kidero Odhiambo & 5 others v Ferdinand Waititun&5others

where it stated that courts of law will pay regard to the substantive justice of the case as opposed to

procedure, but will not allow a party to hide their negligent acts and mistakes in the name awwof the

oxygen principle as such would amount to misuse of the principle.

 The court threw out a petition filed by the appellant 72 days after the judgment of the High Court for

being incompetent, holding that the statutory timelines laid out in the law were mandatory and could not

be derogated from. This was so despite the fact that the appellant was not responsible for the delays,

which had been caused by the fail of the High Court registry to avail typed proceedings of the judgment

in good time.

 Similarly, in Raila Odinga v The IEBC & 3 Others,the Supreme Court struck out an affidavit filed by the

Petitioners on the ground that it had been filed out of the stipulated time. The Supreme Court observed

that a court of law is not a court of sympathy and ignorance of procedure is no excuse, and that rules of

procedure can only be disregarded on a case by case basis.

 c) DEFAULT JUDGEMENT
 If a party fails to comply with a court order or fails to attend a hearing, the court may
give a default judgment against that party as in re Eunice Mugure Muchori & 2 others v
Peter Macharia [2020] eKLR. The court observed that those rules and timelines serve to
make the process of judicial adjudication and determination fair, just, certain and even-
handed.

 Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts
for, while it may seem to aid one side, it unfairly harms the innocent party who strives
to abide by the rules.

 The court asserted its discretion to set aside an exparte judgment or order for that
matter, intended to avoid injustice or hardship resulting from an accident,
inadvertence or inexcusable mistake or error but not to assist a person who deliberately
seeks to obstruct or delay the course of justice.
 SANCTIONS IMPOSED ON ADVOCATES
 An advocate is an officer of the court under Section 55 of the Advocates Act (2017)

and should aid the court in meeting the objects of the oxygen principle.

Contravention of the oxygen principles amounts to professional misconduct. This

may result into sanctions being imposed on the advocate for failure to comply.

 S. 60(4) of the Advocates Act, spells out some of these sanctions include:

1. Admonition - Admonition entails a light form of punishment consisting in a

reprimand and warning administered by the tribunal to the advocate.

2. Suspension - The tribunal may order that such an advocate be suspended

from practice for a specified period not exceeding five years.

 Cont.

3. Striking off the Roll of Advocates - In extreme cases an

advocate may be struck off the roll of advocates for repeated or

serious breaches of the oxygen principle.

4. Payment of fines - An advocate may be liable to pay a fine not

exceeding 1 million.

5. Compensation and Reimbursement - The advocate will pay to

the aggrieved person compensation or reimbursement of an amount

not exceeding 5 million.

 Other consequences for non-compliance
In addition to sanctions, failure to comply with the overriding objective principle can
have other consequences. These include:
1. The court may make an order that the person take specified and necessary steps
to remedy the contravention that has been made, therefore shifting the
responsibility to the person who may have caused the delay. In the case of Deepak
Chamanlal Kamani &Another vs. Kenya Anti-Corruption Commission &3 Others
(2010) eKLR, the applicant asked the court to strike out an appeal on grounds that
the primary documents including the notes of the 2 trial judges had been omitted
in the record of appeal making it incurably defective. The court in declining to
strike out, held that striking out the appeal would contravene the overriding
objectives principle. The court further held that the appellant should offer a
supplementary record of appeal to the respondents reiterating that striking out the
appeal would not facilitate the just, expeditious, proportionate and affordable
resolution of the appeal.
 Cont.

2. The court may grant an extension of time where it is satisfied that the party
making the application was not aware of the contravention.
In Kenya Commercial Bank Limited vs. Kenya Planters Cooperative Union (2010)
eKLR, the applicant, having filed the application after the filing time period had
expired, sought extension of time and for the court to deem the application as
having been filed within the extended time. The reasons given by the applicant for
not filing in time were, among others, that due to the intervening long Easter
holiday, the applicant was unable to instruct its advocates in good time to enable
preparation and filing of the application within the statutory time limit of 14 days.
Justice Nyamu relied on the oxygen principle to grant the extension of time,
holding that the reason given for not filing in time was valid.
 conclusion

 It is important for parties and their representatives to comply

with the overriding objectives, as failure to do so results in

serious consequences, including the imposition of sanctions by

the court as it may any other order that the court considers is

in the interests of any person who has been prejudicially

affected by the contravention.