For a long time, the Kenya’s judiciary has been criticized for delaying cases and the slow justice dispensation process. Many Kenyans who were afraid of filing their claims of substantially lower value have now been considered and soon they will have a court that considers and secures their rights. It is a welcoming step towards the improvement of the delivery of justice after the enactment of the Small Claims Court Act No. 2 of 2016, the Small Claims Court (Amendment) Act 2020 and finally the approval of establishment of the first small claim court at Milimani commercial courts Nairobi.
In a gazette notice volume CXXIII number 81 published on 23rd April 2021, the Acting Chief Justice Philomena Mwilu directed that the first small claims court be established at Milimani commercial courts to exercise jurisdiction within Nairobi county and appointed Hon. Stella Waigwe Kanyiri as the acting small claims court’s Registrar for a period of one year from 27th April 2021.
The Small Claims Court Act, No. 2 of 2016 established the Small Claims Court which is a subordinate court with a pecuniary/monetary jurisdiction of Kenya Shillings 1,000,000.00 but subject to change by a notice issued by the Chief Justice. Should this pilot project succeed, the small claims courts are to be accessible in every county, as well as in other decentralized units of judicial service delivery. These courts are to be guided by the constitutional principles that guide other courts established under the Constitution.
From the Act, Small Claims Court will have jurisdiction to deal with any civil claims relating to matters such as:
• Contracts for sale and supply of goods or services;
• Contracts for money held and received;
• Liability in tort in respect of loss or damage to any property, for the delivery or recovery of movable property;
• Compensation for personal injuries;
• Set-off and counterclaim under any contract; and
• Any other civil jurisdiction conferred by written law.
However, there are matters that the Court cannot deal with such as matters relating to defamation, libel, slander, malicious prosecution, disputes regarding titles or possession of land, or employment and labour relations matters.
Before a party lodges a claim with Small Claims Court, there are certain conditions which must be met. These include:
• That they must ordinarily reside or carry-on business within the local limits of the jurisdiction of the Court;
• The subject matter of the claim must be situated within the local limits of the jurisdiction of the Court;
• The contract to which the claim relates must either have been made or be intended to be performed within the local limits of the Court;
• The cause of action must have arisen within the local limits of the Court; or
• The Defendant to the claim must be residing within the local limits of the court’s jurisdiction.
Interestingly, the Small Claim Act provides that a party to the proceedings shall appear in person or where they are unable to appear in person, be represented by a duly authorized representative who shall be a next of kin, close relative or a legal practitioner.
To make things easier for litigants, the Act excludes the strict application of the rules of evidence. The Small Claims Court shall be presided over by an adjudicator who must be an advocate of the High Court of Kenya, with at least three years’ experience in the legal field and who may in addition, serve on full or part-time basis. The Act does not preclude a person from lodging a claim that is within the jurisdiction of the Small Claims Court in any other court if they elect to do so however this is a matter of wait and see how the jurisprudence with develop.
Finally, the decision of the court may be appealed against at the High Court and the High Court’s Decision is final.
Andrew Wanga
www.mmsadvocates.co.ke