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published on 1 July 2021 | reading time approx. 5 minutes
The Small Claims Courts are seen to be an integral part of the Judiciary’s Reform Agenda. There are two main motivations for establishing the Small Claims courts. The first is to enhance access to justice. The Small Claims Courts will help not only in the expeditious determination of relevant matters, but also, importantly, in reducing the caseload in the Magistrates’ Courts thereby enabling the reduction of backlog in those courts. The second motivation is the business eye aspect; that commercial disputes were taking an inordinately long time to be resolved in the mainstream courts. From a political and economic perspective, the Government has shown its keenness to support the release of economic capital that is tied up in commercial disputes for re-investment into the economy.
The Judiciary Service Delivery Agenda, 2017-2021 notes that there is need to formulate and implement a strategy to operationalise the Small Claims Act, appoint adjudicators for the Small Claims Courts, designate courts that will handle Small Claims matters across the country, develop rules and regulations guiding the Small Claims Courts and gazettement of courts to handle Small Claims. Further to this, in the Judiciary Strategic Plan 2019 – 2023, it has been noted that the operationalization of Small Claims Courts is a key strategy to the realization of fast-track hearings and determination of old cases. This is also tied to enhanced access to justice, which has been identified as one of the key deliverables in the Judiciary’s reform agenda. The pilot Small Claims Court in Kenya was established vide Gazette Notice 3791 by the Acting Chief Justice Philomena Mwilu at Milimani Commercial Courts, Nairobi on the 23 of April 2021 to exercise jurisdiction within Nairobi County. Hon Stella Waigwe Kanyiri was also appointed to serve as the Acting Registrar of the Small Claims Court for a period of one (1) year vide Gazette Notice No 3788. During the launch of the Milimani Small Claims Court on 26 April 2021 where the court’s adjudicators were sworn in, the ACJ Philomena Mwilu affirmed the Judiciary’s commitment to roll out other Small Claims Courts to other locations across the country. The court officially commenced operations on 27 April 2021.
The Small Claims Act establishes a subordinate court known as the Small Claims Court to be presided over by an adjudicator. The adjudicator must be an advocate of the High Court of Kenya, with at least three years’ experience in the legal field. The idea behind the SCC is to allow for access to justice to the masses through a quick, inexpensive and expeditious informal process, in order to guarantee the right of access to justice under Article 48 of the Constitution. The courts should ideally be accessible in every sub-county (coterminous in boundary with what was previously known as a division under the old constitutional dispensation) and progressively in other decentralized units of judicial service delivery. Section 12 of the Act stated that the pecuniary jurisdiction of the court is limited to Ksh. 200,000 but this was later changed as outlined below. The nature of claims addressed by the court include:
The Small Claims Court cannot entertain any claim for defamation, libel, slander, malicious prosecution, a land dispute, employment or criminal matters. A party to the court proceedings is required to appear in person or where he or she is unable to appear in person, be represented by a duly authorized representative. The Act prohibited Advocates or any other legal practitioner, from representing parties before the court but this was later changed. Matters before the court are to be heard and determined on the same day or on a day to day basis until final determination whereas judgments are to be delivered on the same day or not later than 3 days from the date of the hearing. Appeals from the Court may be made to the High Court with the decision being final. The Rules provide the various procedure of the Small Claims Court and provides prescribed forms to be used by parties in lodging their claims as well as the applicable court fees.
This new amendment act was assented to on 30 April 2020 and brought about the following key amendments:
The Small Claims Court is expected to speed up the delivery of justice especially in relation to trade disputes, debt collections (both personal and commercial), personal injury claims amongst others. A pecuniary jurisdiction of KES 1,000,000 would be sufficient to cover a good proportion of the claims that generally arise in these areas. If the turnaround in these courts is fast enough individuals and businesses may not need to allow their matters to fester, but can elect to use these courts to enforce their rights. The courts may eventually get overwhelmed with a large number of cases but we hope more and more adjudicators are retained by these courts to ensure they meet the intended objective.
Mbatia Mwasaria
Associate Partner
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