Towards new frontiers of justice: re-evaluating the place of small claims court in Kenya: solace for the indigent?

This paper examines access to justice in Kenya through small claims courts. The Small Claims Court (SCC) in Kenya was established by the Small Claims Court Act, of 2016, which is now fully operational. The SCC's concept is to provide access to justice through a quick, inexpensive, and expeditious informal process. However, the Small Claims Court (Amendment) Act, 2020 amended the Principal Act to make changes to the SCC's operations. The changes pertain to the SCC's monetary jurisdiction, party representation, and adjournment of matters before the SCC. This paper also considers the progress made by small claims courts in providing expeditious justice in Kenya. The strengthening of access to justice is relevant in all societies, not only in a fragile context. This article argues for a more radical and comprehensive approach to access to justice that emphasizes social justice and systemic change by fully utilizing the Small Claims Court. This strategy necessitates a significant shift in focus, a reimagining of what is required to meet the needs of low-income litigants in poor people's courts (SCC).

Litigation has been complicated for the country’s impoverished citizens. This is due to the legal technicalities used in court, complex procedures, high costs, and delays in resolving disputes.1 Furthermore, there are impediments that the poor, as well as the marginalized and uneducated, face in their quest for justice. They include long distances to the courts, illiteracy, high advocacy fees, a lack of court infrastructure, and a lack of information.2 As a result, the rights and fundamental freedoms of this group of individuals are denied, violated, or infringed upon, causing dissatisfaction and bias against the courts, which are mandated to administer justice to all regardless of social status. Resolving disputes is fundamental to the peaceful existence of society. The Constitution of Kenya in Articles 21, 47,48, and 50 guarantees the right of every person to access justice and calls for the state to take appropriate policy, statutory and administrative interventions to ensure the efficacy of justice systems. It is not in question that most disputes in Kenya are resolved at the community level through the use of community elders and other persons mandated to keep peace and order.3

The Small Claims Court sought to cure this problem and promote quick access to justice for the indigent. Small claims courts can be referred to as the people’s claims courts because they aim to provide an informal, uncomplicated forum for resolving small disputes that do not involve large amounts of money to justify the cost of formal litigation.4 The Small Claim Court derives its authority from Article 169 (1)(d) of Kenya’s 2010 Constitution, which establishes subordinate courts.5 According to Section 4(2) of the SCC Act, 2016, and Article 6(3) of the Constitution, the Chief Justice has the authority to designate any court station as an SCC and specify the geographical jurisdiction of any such Court through a Gazette notice.6 The SCC is thus a facet of the multi-door approach towards accessing justice.

Chief Justice Hon. Martha Koome has lauded the place of Small Claims Court in the expeditious delivery of justice stating that: “Having witnessed the revolutionary potential of the Small Claims Courts over the last one year, we project that if we have in place One Hundred (100) such courts operational in the country, this will mark a turning point for the efficiency of the Justice sector. In fact, if we get adequate support, we are thinking of having a night shift operation of the Small Claims Court with some adjudicators sitting from 5p.m. – 8p.m. in Nairobi and Mombasa cities, which would be a first for any public sector institution in Kenya and regionally. This will certainly place our country on the path to claiming the top spot in the continent in terms of efficiency in commercial disputes resolution hence enhancing the country’s attractiveness as a business and investment destination.”7

2.0 The concept of access to justice in Kenya

Nicholas Orago aptly captures the hope of the Constitution 2010 in this manner: ‘The struggle for a new constitutional dispensation in Kenya was underpinned by the desire for a new political, economic and social dispensation capable of eradicating poverty, inequality, and marginalization. The aim of the Kenyans who struggled for the new political and socio-economic dispensation was the entrenchment of a just system of government that will enhance access to the basic socio-economic goods and services for the Kenyan people, especially the poor, vulnerable, and marginalized.8

Access to justice in Kenya is dependent on several instruments and institutions, including the judiciary, the legislature, policy, and international human rights, among others. Further, Article 22(1) of the Constitution of Kenya provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated, or infringed, or threatened.

Article 22(3) of the Constitution of Kenya thereof further provides that the Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy amongst others the criteria that: formalities relating to the proceedings, including the commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation; and the court while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities.9

Besides, Article 48 thereof is to the effect that the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice. Article 159 (1) of the Constitution provides that judicial authority is derived from the people and is vested and exercised by courts and tribunals established under the constitution. In exercise of that authority, the courts and tribunals are to ensure that justice is done to all, is not delayed, and that it is administered without undue regard to procedural technicalities.10 It echoes the right of all persons to have access to justice as guaranteed by Article 48 of the constitution. It also reflects the spirit of Article 27 (1) which states that “every person is equal before the law and has the right to equal protection and equal benefit of the law.”

The decision of the court in Dry Associates Limited v Capital Markets Authority & another [2012] eKLR, enumerated and expounded on the tenets of access to justice including the enshrinement of rights in the law; awareness of and understanding of the law; access to information; equality in the protection of rights; access to the justice system, particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay. Chief Justice Martha Koome in promoting her vision of Social Transformation through Access to Justice posits that:
“The Judiciary contributes to social transformation by providing a forum where the concerns of litigants, parties and vulnerable groups are raised as legal claims and redressed. In addition, the redress of such legal claims ought to be individually and socially just. A major challenge in achieving this objective is that access to justice is still limited for certain sectors of the Kenyan society. This category of persons includes those in most need of judicial protection, persons belonging to vulnerable groups, who tend to lack the means to engage in lengthy and costly judicial proceedings. It is for this reason that my vision is centred on delivering to the Kenyan people an accessible, efficient, expeditious and cost-effective justice system. This can only be enabled if systemic and informal barriers to access justice are removed.”11

3.0 Small claims court as the pathway toward expeditious access to justice in Kenya

Due to the nature of the cases they hear, Small Claims Courts have occasionally been viewed as having a low status. In addition, they have been accorded a very high priority and significance because they are so widespread and have the potential to affect all people and all stages of life.12

The Small Claims Act of 2016 established Small Claims Courts, which are subordinate courts meant to expedite the resolution of disputes involving small monetary claims through informal and affordable avenues while adhering to the principles of law and natural justice. The need to incorporate these conceptual imperatives into civil justice administration stems from the fact that complicated procedural rules, systemic delay, and excessive expense impede civil justice delivery. The Small Claims Court Act of 2016 sought to improve access to justice by expanding the reach of the formal justice system to areas underserved by existing courts, as well as to facilitate access to justice for a category of claimants who are currently unable to access judicial services for a variety of reasons. The primary purpose of the court is to ensure the right of access to justice enshrined in Article 48 of the Constitution through the simplicity of the procedure, prompt disposition of proceedings, procedural fairness, and reasonable court fees.13 Since the Small Claims Courts promotes the use of informal conflict management mechanisms it promotes the concept of access to justice, brings justice closer to the people and it is more affordable.14 According to Lima and Gomez, “access to justice guarantees that people can petition the courts for the protection of their rights, regardless of their economic, social, political, migratory, racial, or ethnic status, or their religious affiliation, gender identity, or sexual orientation.” People’s ability to seek and obtain a remedy through formal or informal institutions of justice in accordance with human rights standards is another definition of access to justice.15 Legal framework, legal protection, legal awareness and knowledge, legal aid and representation, access to justice institutions, fair procedure and adjudication, enforceable solutions, and civil society and parliamentary oversight are necessary for effective access to justice.

Justice is not primarily found in official justice-dispensing institutions, just as health and knowledge are not primarily found in hospitals and schools, respectively. In the end, access to justice entails more than just bringing cases before a court of law; it also entails enhancing the quality of justice in people’s relationships and transactions.16 The purpose of establishing the SCC is to enable judicial institutions to provide easy access to informal, cheaper, and expeditious resolution of debt recovery disputes. Since the law allows people who are not legal practitioners to represent parties to proceedings in Small Claims Court ensures the expedient delivery of justice in an inexpensive way.17 Access to justice goes beyond merely having the presence of formal courts in a country, it also entails the opening of these formal systems and legal structures to the disadvantaged groups in society, removal of legal, financial, and social barriers such as language, lack of knowledge of legal rights and intimidation by the law and legal instruments.18

Access to justice is viewed as an important pillar for poverty alleviation and sustainable development.19 Conventional wisdom, dictates that improving access to justice can be accomplished by lowering the costs for litigants using the formal court system. According to Rankin, the inability to access justice and obtain legal representation may place burdens on courts and judges, undermining the independence of the formal legal system.20 Baldwin argues that raising the jurisdictional limit of small claims courts is generally welcome but recognizes potential problems if lay litigants do not have access to adequate legal advice.21 Many impoverished Kenyans who could not afford expensive legal battles to recover their hard-earned money have found solace in the Small Claims Court.22

4.0 Attributes of small claims court

The Small Claims Court Act’s dispute resolution procedure places a strong emphasis on the timely disposition of suits that are both simple and cost-effective. For the resolution of disputes within the claim being lodged, a strict time limit of sixty (60) days is imposed.23 Furthermore, cases may be heard and decided on the same day or on a daily basis until a decision is reached. Such judgments must be delivered on the same day, and no later than three (3) days after the hearing date. The strict evidentiary rules that apply in other courts are not fully applied in Small Claims Court, and parties to proceedings are not required to be represented by an advocate but may do so. Furthermore, in contrast to the complex pleadings filed in other courts, the Act provides a simplified form and structure for claims.

After hearing the claim, the Adjudicator shall deliver a decision within a reasonable time frame. An order for the restitution of any movable property; an order for the recovery of any sum in relation to the performance of a contract; an order dismissing the claim to which the proceedings relate; or any such orders as the Court may deem necessary, including any stipulations or conditions for the enforcement of its orders are among the orders that the Court may issue concerning any matter before it.

Toward facilitating the amicable settlement of claims, the Small Claims Court uses Alternative Dispute Resolution (ADR) and other dispute resolution mechanisms, such as settlement agreements and consent judgments.24 This will also ensure expedited suit disposition, fairness, flexibility, cost-effectiveness, and party satisfaction, as well as foster relationships between the parties.

Appeals from Small Claims Court judgments or orders may be filed in the High Court only on matters of the law.25 In contrast to other suits filed in Magistrates’ courts, which may be appealed to the Court of Appeal, no further appeals are available with regard to the High Court’s decision in Small Claims Court appeals.

The Adjudicator may review any Small Claims Court order on several grounds, including that it was made ex parte without notice to the applicant; the claim or order was outside the Court’s jurisdiction; the order was obtained through fraud; there was error of law on the face of the record; or either party discovers new facts not before the court. Applications for review must be made within thirty (30) days of the order or award sought for revision, or within such time as the court deems appropriate. However, unless expressly ordered by the Adjudicator, the filing of an application for review does not result in an automatic stay of execution of an order. When a stay of execution is issued, it may be subject to costs, payment into court, security, or other conditions as determined by the Adjudicator.

The SCC operating mechanism is predisposed such that once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the Court that it is just to grant for adjournment, and when the Court deems it fit to grant that adjournment, it shall give a date for further hearing or directions per section 34 of the SCC Act, 2016.

5.0 Jurisdiction of the small claims courts

The subject matter jurisdiction of the Small Claims Court is limited, primarily to contractual and tort claims.26 The SCC’s jurisdiction over contractual claims is limited to civil disputes relating to a contract for the sale and supply of goods or services, a contract relating to money held and received, or set-off and counterclaim under any contract. In contrast, the SCC’s jurisdiction over tort claims is limited to civil disputes relating to liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property, and compensation for personal injuries. Small Claim Court has a pecuniary jurisdiction of up to one million shillings.27 An Adjudicator appointed by the Judicial Service Commission hears and determines cases before this Court. The adjudicator must be an advocate of the High Court of Kenya, with at least three years of experience.28 Furthermore, pursuant to Article 172 (1) of the Constitution, the Judicial Service Commission shall appoint as many Adjudicators, Registrars, and other SCC officers as may be required for the effective discharge of the Court.

The Registrar’s role is to establish and maintain a register in which all Court records are kept, to enforce Court decisions, and to facilitate access to Court judgments and records. The SCC registrar will consider or dispose of procedural or administrative matters in accordance with the Rules or on the Adjudicator’s direction.29 If a party to a claim is dissatisfied with the Registrar’s decision on matters pertaining to the Court’s judicial functions, he or she may request a review by an Adjudicator of that court.30

No proceedings relating to the same course of action may be brought before any other courts after a claim has been lodged with the SCC, and no claim which is before another court may be instituted before the SCC, unless the claim has been withdrawn before the other court.31 The SCC shall have a separate Registry and case register at the Court, so that the parties may be assisted by the registrar in filling out forms during the filing process.

6.0 Towards achieving the promise of justice; strides made by the small claims court so far

The gospel of the dispensation of justice via the Small Claims Court has been spreading throughout the whole country.32 Recognizing that the SCC improves access to justice by extending the reach of the formal justice system to a group of claimants who were previously unable to access mainstream judicial services for a variety of reasons, the Judiciary has continued to carry out its ambitious rollout plan for the establishment of Small Claims Courts across the country.33 Twenty two Resident Magistrates were also designated as Adjudicators to preside over Small Claims Court.

Kajiado, Machakos, Nyeri, Naivasha, Nakuru, Eldoret, Kakamega, Kisumu, Mombasa, Thika, and Meru Small Claims Courts, as well as one virtual sub-registry, were established and operationalized for 2021-2022(Eleven new small claims courts). To improve understanding of the court’s processes and requirements, information, education, and communication (IEC) materials on the Court have been developed and disseminated to the public in English and Swahili.34

Furthermore, the SCC designated twenty-five Resident Magistrates as adjudicators, with efforts being made to expand the Judiciary ICT infrastructure, such as e-filing and the Case Tracking System (CTS), to these courts. The Nairobi Metropolitan Services (NMS) and the Judiciary collaborated to build five SCC in Kasarani, Makadara, Dagoretti, Mathare, and Embakasi. The Judiciary is committed to strengthening and expanding the SCC because it is critical to providing justice to more Kenyans and reducing case backlogs.35 The Chief Justice also carrying out her ceremonial and appointive duties swore in 19 small Claims Court Adjudicators to hear and determine disputes. The SCC has radically transformed the adjudicatory space by opening new doors to justice, resolving 9,315 cases worth Ksh 1.431 billion so far.

There were 1,239 matters pending in various SCC stations at the end of the reporting period. This is displayed based on the station and case type. Milimani Station had the most pending cases, with 650. Thika Station had 170 pending cases, Eldoret had 101, Kakamega had 49, Nakuru had 32, Nyeri had 27, Naivasha had 22, and Kajiado had 18 pending cases.36

7.0 Convenience of using the small claims court in Kenya

Due to the relatively low monetary threshold for small claims matters, self-represented litigants are discouraged from initiating frivolous or vexatious cases involving amounts less than one million Kenyan Shillings. The Court structure and case management practices, which include the quasi-judicial functions of the Registrars in making initial determinations, allows for a direct right of appeal that is less expensive, less complex, and more efficient than in the higher Courts. This essentially safeguards the legal rights of all parties involved. With the option to include or exclude legal representations, more claims will fall under the jurisdiction of the SCC, as not only will the procedure be less formal, but the costs associated with initiating and maintaining the claim is also lower. Since technical rules of representation and evidence and procedures are discouraged, it enables claimants to seek judicial relief in a shorter period of time. The purpose of the SCC is to improve access to justice in a timely manner. The SCC is more inquisitorial than adversarial in nature, it facilitates a better resolution of disputes. It is already anticipated that SCC will increase public confidence in Courts that are viewed as detached, mysterious, and corrupt.

8.0 Impact made by the small claims court in Kenya today
During the fiscal year 2020/21, 1,023 cases were filed in the SCC. During the same time period, 637 cases were resolved. Cases involving breach of contract accounted for 30% of all filed cases, followed by liquidated claims (26%). Civil miscellaneous applications accounted for 2% of all cases filed. In terms of resolved cases, liquidated claims accounted for 35% of the total, with personal injury cases accounting for 25%. For the fiscal year 2020/21, the most cases filed were breach of contract cases (307), followed by liquidated claims (261 cases). Liquidated claims accounted for 221 of the total resolved cases, followed by personal injury cases at 159. The SCC took 53 days to resolve cases, which is less than the minimum statutory requirement of 60 days under SCC Act No. 2 of 2016. At the end of fiscal year 2020/21,

the SCC had 386 pending cases. The majority of pending cases (51%), followed by commercial suits (28%), were for breach of contract. These findings were derived from the State of the judiciary and the Administration of Justice Annual Report for the year 2020/2021.

The Small Claims Court had 386 cases pending as of June 30, 2021. In fiscal year 2021-22, 8,503 cases were filed, with 8,226 of those cases resolved. As of June 30th, 2022, 1,239 cases were still pending. The Judiciary conducted an audit in 23 court stations, including the Supreme Court, Court of Appeal, Nairobi Employment and Labour Relations Court, Milimani Commercial, JKIA, Kisumu, Wang’uru, Hamisi, Meru, Isiolo, Gatundu, Narok, Ruiru, Nyando, Kikuyu, Kapsabet, Eldoret, Mavoko, Kericho, Ngong, Mandera, Kahawa and The audit revealed that the automation of many court processes has made it easier to issue court orders, assess court fees, and generate e-receipts. This includes standard forms for filing court processes (including pleadings in Small Claims Courts) as well as notification to parties via email and SMS. These findings were derived from the State of the Judiciary and The Administration of Justice Annual Report for the year 2021/2022.

9.0 Possible and emerging challenges facing the small claims court in Kenya
Sadly, the operationalization of the Small Claims Courts in Kenya is underfunded, despite being a means for Kenyans to access justice. It was allocated only Ksh.150 million for the fiscal year 2021/22, despite being a very critical area. There is a need for Parliament to amend the law to guarantee the judiciary at least 2.5% of the national budget to safeguard the financial autonomy of the judiciary as envisaged in the constitution in order to support the operationalization of the Small Claims Courts.

10.0 Concluding thoughts

The Small Claims Court (SCC) is a novel and innovative approach to not only reducing case backlogs but also facilitating hampered citizens’ access to justice and opening the court institution to public participation. The SCC is at the forefront of eliminating the time-consuming procedures that delay the process of getting to trial and the practice of attorneys regularly adjourning hearings for dubious reasons. The registration system of the SCC also ensures that records are kept due to a system put in place to ensure that the status quo of cases is known in a transparent manner. As a result,

I contend that small claims courts may be paradigmatic of governmental responses to social problems.

Miracle Okoth Mudeyi is a final-year law student at the University of Nairobi. His research interests include but are not limited to transformative constitutionalism, mental health law, and public international law, third-world approaches to international law, dispute resolution, administrative law, and sexual and reproductive health rights. He can be reached via mudeyi_miracle@uonbi.ac.ke

1Kariuki Muigua & Kariuki Francis., ‘Alternative Dispute Resolution, Access to Justice and Development in Kenya.’.p 1-2.

2Kariuki Muigua, ‘Access to Justice and Alternative Dispute Resolution Mechanisms in Kenya’.p 4.

3K. Muigua, Resolving Conflicts through mediation in Kenya, 9glenwood Publishers, 2012),pp.21-22.

4Texas Young Lawyers Association and the State Bar of Texas, ‘How to Sue in Small Claims Court’ Page 1.

5Article 169(1) of the Constitution also creates other subordinate courts, which include: (a) the Magistrates courts; (b) the Kadhis’ courts; (c) the Courts Martial; and (d) local tribunals established by an Act of Parliament.

6Article 6(3) of the Constitution states that; “A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.”

7Speech delivered by Hon. Justice Martha Koome, EGH, Chief Justice and President of the Supreme Court of Kenya during presentation of the Annual State of the Judiciary and Administration of Justice (SOJAR) Report FY 2021/2022, 4th November 2022.

8Nicholas Wasonga Orago, Socio-economic rights and the potential for structural reforms: A comparative perspective on the interpretation of the socio-economic rights in the Constitution of Kenya, 2010 in Morris Kiwinda Mbondenyi, Human rights and democratic governance in Kenya: A post-2007 appraisal Pretoria University Law Press (2015).

9Article 22(3)(b)(d) Constitution of Kenya, 2010.

10Ibid, Article 159(2)(d).

11Chief Justice Martha Koome’s Vision for the Judiciary – Social Transformation through Access to Justice (STAJ).

12Eric H. Steele, ‘The Historical Context of Small Claims Courts’ American Bar Foundation Research Journal (1981), 293.

13“Small Claims Courts – the Judiciary of Kenya” https://www.judiciary.go.ke/courts/surbordinate/small-claims-courts/ accessed November 23, 2022.

14See Kariuki Muigua and Kariuki Francis, ‘ADR, Access to Justice and Development in Kenya’, Paper Presented at Strathmore Annual Law Conference 2014 held on the 3rd and 4th July, 2014 at Strathmore Law School, Nairobi.

15Gutterman, Alan, Older Persons’ Access to Justice (February 17, 2022). A. Gutterman, Older Persons’ Access to Justice (Oakland CA: Older Persons’ Rights Project, 2022), Available at SSRN:https://ssrn.com/abstract=3889752

16Marc Galanter, ‘Justice in Many Rooms’ in M Cappelletti (ed.), Access to Justice and the Welfare State, 1981, Sijthoff, Alphen aan den Rijn, 147–81 at pp 161–2.

17See The National Assembly Report on the Consideration of the Small Claims Court(Amendment) Bill, 2020.

18“Global Alliance Against Traffic in Women” (Working Papers – The Global Alliance Against Traffic in Women (GAATW)https://www.gaatw.org/atj/index. php?option=com_content&id=105&catid=18%3ASpecialized+articles+on+anti-trafficking+legal+issues&Itemid=116 accessed November 23, 2022.

19“Access to Justice in Kenya ”(IDLO October 7, 2019)< https://www.idlo.int/what-we-do/initiatives/access-justice-kenya&gt ; accessed November 23, 2022.

20Rankin, M. B. (2013). Access to Justice and the Institutional Limits of Independent Courts. 30 Windsor Yearbook of Access to Justice 101.

21Baldwin, J. (1998). The Litigant’s Eye View of Small Claims Hearings. 8 Consumer Policy Review 2.

22KNA , “Small Claims Court Comes to the Rescue of Small Businesses” (Capital Business October 19, 2022) https://www.capitalfm.co.ke/business/2022/10/small- claims-court-comes-to-the-rescue-of-small-businesses/ accessed November 23, 2022 .

23Section 34 of the Small Claims Court Act of 2016.

24Section 18 of the Small Claims Court Act of 2016.

25Ibid at Section 38.

26Ibid. section 12(1).

27See Small Claims Court (Amendment) Act No. 5 of 2020 Accessed at http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2020/SmallClaimsCourt_ Amendment__Act_No.5of2020.pdf

28Section 5 of the Small Claims Court Act.

29Ibid at Section 9.

30Ibid at Section 10.

31Ibid at Section 10.

32Sam Kiplagat , “Boost for Small Claims Courts as CJ Gazettes 20 Adjudicators” (Boost for small claims courts as CJ gazettes 20 adjudicators | Business Daily January 10, 2022) https://www.businessdailyafrica.com/bd/news/counties/boost-for-small-claims-courts-cj-gazettes-20-adjudicators-3676844?view=htmlamp accessed November 23, 2022.

332022 (State of the Judiciary and the Administration of Justice Annual Report FY 2021-2022) 16.

34Ibid.

35Ibid, SOJAR.

362022 (State of the Judiciary and the Administration of Justice Annual Report FY 2021-2022) 91.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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