The promulgation of the 2010 Constitution inspired hope among many Kenyans and stakeholders across all sectors. One of the celebrated milestones of the 2010 Constitution is the access to justice under Article 48. While there have been tremendous gains specifically with regard to justice, the section of the country’s population which is yet to reap the benefits cannot be wished away.
The journey towards achieving access to justice as envisaged in the Constitution has suffered numerous stumbling blocks, among them being the backlog of cases in the judiciary. One of the measures put in place by the government to reduce the backlog of cases is the enactment of the Small Claims Court Act (hereinafter ‘the Act’) in 2016 and subsequently amended in 2020 and 2021. The Act establishes and governs the operations of Small Claims Court (hereinafter ‘the Court’) in Kenya. Despite enactment of the Act, it was not until 26th April, 2021 that the Act was operationalised through the launch of Milimani Small Claims Court in Nairobi presided over by the Acting Chief Justice, Honourable Philomena Mbete Mwilu and attended by stakeholders drawn from various sectors not limited to the legal profession.
The launch was subsequent to the establishment of the Court at Milimani Commercial Courts, Nairobi vide Gazette Notice No. 3791 dated 23rd April, 2021 and the appointment of Hon. Stella Waigwe Kanyiri as the Acting Registrar of the Court vide Kenya Gazette Notice No. 3788 on 23rd April, 2021.
Objectives of the Court
The main objective of the Court is to guarantee the right of access to justice as envisioned under Article 48 of the Constitution through:
timely disposal of proceedings;
equal access to judicial services;
fairness of process; and
simplicity of procedure.
Jurisdiction of the court
The Court has jurisdiction to determine any civil claim relating to:
a contract for sale and supply of goods and services;
a contract relating to money held and received;
liability in tort in respect of loss or damage caused to any property or for the recovery of movable property;
compensation for personal injuries; and
set-off and counterclaim under any contract
The Act has expressly excluded from the jurisdiction of the court claims in the nature listed hereunder:
dispute over a title to or possession of land; and
employment and labour relations.
As is the case with other subordinate courts, the Court is subject to both pecuniary and geographical jurisdiction. Whereas the pecuniary jurisdiction of the Court is limited to Kenya Shillings One Million Only, (Kshs. 1,000,000/=), the geographical jurisdiction of the Court is determined by the Chief Justice who then publishes a notice in the Gazette designating the local limits of the jurisdiction of Court. For instance, pursuant to Gazette Notice No. 3791 of 23rd April, 2021, the jurisdiction of the Milimani Small Claims Court is limited to Nairobi County.
As at 4th May, 2021, the Court has only one station in Nairobi County and therefore access to justice through the Court is limited to Nairobi County. However, the progressive implementation of the Act and operationalisation of the Court is intended to ensure that such Courts are accessible in every sub-county and progressively in other decentralized units of judicial service delivery.
The jurisdiction of the court is also ousted by the doctrine of sub judice and res judicata i.e. the Court shall not adjudicate on a dispute that is pending determination in another court and/or a dispute that has been determined in another court respectively.
Language of the Court
The record of the Court shall be maintained in English. However, Kiswahili and any other appropriate language including indigenous languages, Kenya Sign Language, Braille and any other communication format accessible to persons with disabilities.
Representation before the Court
A party to the proceedings shall appear in person. However, where he or she is unable to appear in person, he or she may be represented by a duly authorised representative who may be advocate or not. This essentially means that persons other than legal practitioners can represent parties in court.
However, a representative who is not a legal practitioner must seek the permission of the Court and the Court shall only grant such permission upon satisfying itself that the person has sufficient knowledge of the case and sufficient authority to bind the party being represented.
Expeditious disposal of cases
‘Justice delayed in justice denied’ William E. Gladstone
Expeditious disposal of cases is a pivotal element in access to justice. It is therefore imperative that proceedings before the Court be determined as soon as practicable. The Act provides for expeditious determination of cases not more than a period of sixty (60) days from the date of filing. To ensure this is achieved, the Act provides that proceedings shall be heard on a day to day basis until final determination and judgement delivered on the same day and in any event not later than three (3) days from the date of hearing.
The Act also limits adjournment of proceedings to instances of exceptional and unforeseen circumstances in which case the adjournments shall not exceed three (3).
Simplicity of procedure
In the spirit of simplicity of procedure aimed at enhancing access to justice, the procedure of the Court is not as strict and rigid as is applicable in other courts. The Act clothes the Court with power to control its own procedure in the determination of claims before it provided that such procedure does not offend the principles of natural justice.
Further, under section 32 of the Act, the Court is not bound wholly by the rules of evidence. The court may admit evidence as it thinks fit for the ends of justice notwithstanding that the admitted evidence would ordinarily fail the test of admissibility of evidence in other courts. It is not mandatory that the evidence be given under oath. However, the Court may as it deems appropriate require that some evidence be given under oath or any written evidence be verified by way of statutory declaration.
Alternative Dispute Resolution Mechanisms
Article 159 (2) (c) of Constitution provides that judicial authority shall be guided by alternative forms of dispute resolution. The Smalls Claims Court is no different and thus, in exercising judicial authority, the Court is at liberty to adopt any appropriate means of dispute resolution aimed at effective, fair and expeditious disposal of cases. This liberty is however subject to the consent of parties. Where any dispute resolution mechanism adopted culminates into an agreement by parties, such agreement shall be recorded as a binding order of the court.
A party aggrieved by an order of the Court may apply to the Court for review of that order within thirty (30) days of the order or such other period as the court may allow. The court may also review the order on its own motion.
The grounds for review are as enumerated hereunder:
where the order was made ex-parte without notice to the aggrieved party;
where the claim or order was outside the jurisdiction of the Court;
where the order was obtained fraudulently;
where there was an error of law on the face of the record; or
where new facts previously not before the Court have been discovered by either of the parties.
A person aggrieved by the decision of the Court may appeal against that decision to the High Court and such appeal shall be final. This means that there will be no further appeal and therefore matters emanating from the Court will not find their way into the Court of Appeal.
Whereas all eyes are fixed on the operations of the Court and the roll out of the Court through opening of other stations and their impact on effective access to justice, let us remember that the success of this venture is dependent of the goodwill and co-operation of all stakeholders.