The Small Claims Court (the Court) was established by the Small Claims Act 2016, which was assented to on 1st April 2016 and amended by the Small Claims Court (Amendment) Act, 2020, assented to on 30th April 2020, (the Act). The Court was gazetted vide Gazette Notice No. 3791 of 2021.
The Court is established under Article 169 (1)(d) of the Constitution with a monetary jurisdiction of matters not exceeding KES. 1,000,000/=. Since its operations began on 26th April 2021 to 21st July 2021 at the Milimani Law Courts in Nairobi, the Court had heard and determined 481 cases out of the 1,222 registered. This is a remarkable achievement.
The main objective of the Court is to guarantee the right of access to justice as envisioned under Article 48 of the Constitution through:
- the timely disposal of all proceedings before the Court;
- using the least expensive method and reasonable court fees;
- equal opportunity to access judicial services;
- reduction of case backlog;
- fairness of process; and
- simplicity pf procedures.
Alongside promoting the administration of justice, the establishment of the Court enhances the ease of doing business in the country.
Jurisdiction of the Court- Section 12 of the Act
The jurisdiction of the Court includes determining any civil claims relating to:
- contracts for sale and supply of goods and services;
- money held and received;
- sett offs and counterclaims on Contractual claims;
- liability in tort in respect of damage caused; and
- compensation for personal injuries.
Proceedings in the Court
The Court shall be presided over by an Adjudicator who is an advocate of the High Court of Kenya with at least three (3) years’ experience.
Section 32 of the Act provides for an exclusion of the Court to the strict rules of evidence and may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence.
Timelines of Proceedings/Hearings
Proceedings are done in a timeous manner with deadlines and to their conclusion. Section 34 provides that all proceedings shall be heard and determined on the same day or on a day-to-day basis until final determination. The court has to hear and determine a matter within 60 days (2 months) from the date it was instituted.
The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
Appeals – Section 38
Appeals lie only as a matter of law, and not fact. Appeals are lodged to the High Court, whose determination shall be final.
What is the Impact of the Small Claims Court to you?
- Flexible procedures- It is not stringently tied down by the Civil Procedure Rules, 2010 or any other procedural law including Evidence Law.
- Non- Representation-A party can appear in court in person or through a representative who need not be an Advocate of the High Court of Kenya.
- Timeous and expeditious disposal of claims-Matter have a conclusion timeline of 60 days (2 months). This thereby enhances the ease of doing business in the country due to the speedy resolution of disputes, so long as one has a valid contract.
- To the SMEs and content creators who struggle to get paid once work is done and delivered to their clients, through delay and or denial, the Small Claims Court will come to their aid and assisting the resolution of non-payment for service delivery, so long as they have valid contracts thereof, thereby enhancing the ease of doing business in Kenya, whilst protecting the legal and economic rights as per the contracts.
- To Defendants/Respondents such as banks and insurance companies, the counter-effect of the Small Claims Court on personal injury and material damage claims is that there may not be enough
time to adduce evidence given the stringent timelines of conclusion of a matter. The parties may not get enough time and chances to investigate claims by the Claimants thereby being stripped of the right to a fair hearing, and the matters being determined to their detriment.
Our Commentary on the Small Claims Court
The Small Claims Court is a craft towards reduction of case backlog as well as facilitation of citizen’s access to justice and opening the courts to the public directly. Commercially speaking, due to the volumes and the speedy dispensation of justice, the Court is going a long way into freeing money into the economy. As we speak, the judiciary is working towards opening up several Small Claims Courts in Nairobi and to other parts of the country.
If you have any queries regarding the Small Claims Court or dispute resolution in general, please do not hesitate to contact James Wairoto . Please note that this e-alert is meant for general information only and should not be relied on without seeking specific subject matter legal advice.
October 19, 2021