Small claims courts in Kenya and how they work.
Introduction
The objective of this article is to enable the reader understand/ to have a glance at the Small Claims Court of Kenya. This includes how it was established, its objective, Jurisdiction, procedures before it, and Appeals.
The Small Claims Court (the Court) was established by the Small Claims Act 2016, which was assented to on 1st April 2016 and later amended by the Small Claims Court (Amendment) Act, 2020 (the Act). The Court was gazetted vide Gazette Notice No. 3791 of 2021. Its establishment has legal basis under Article 169 (1)(d) of the Constitution of Kenya, 2010.
Objectives of the Court
Access to justice has been one of our country’s challenges. In combating this, the Court was established with the main objective of guaranteeing the right to access justice as envisioned under Article 48 of the Constitution of Kenya, 2010 through:
- 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;
Jurisdiction of the Court
Section 12 of the Act specifies that the Court has jurisdiction to determine any civil claims (whose value does not exceed Kenya Shillings One million, KES 1,000,000) relating to:
- A contract for sale and supply of goods or 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 delivery or recovery of movable property;
- Compensation for personal injuries; and
- Set-off and counterclaim under any contract.
Section 13 of the Act goes on to expressly exclude certain matters from the jurisdiction of the Court. Those matters include claims which the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations. Worthy to note, no dispute pertaining to tenancy relationship shall be heard and determined by this Court.
Procedure before the Court
The Court is presided over by an Adjudicator who is an advocate of the High Court of Kenya with at least three years’ experience in the legal field.
Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court 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.
The proceedings are done in a timeous manner with deadlines and to their conclusion. Section 34 of the Act provides that all proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day basis until final determination of the matter. A good example is that the Court may only be allowed to adjourn a 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 of the Act provides that a person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law, whose decision shall be final.
Review of Decree or Orders
The Small Claims Court Rules, 2019 gives the court powers to review decree or order either upon an application of a dissatisfied party or on his or her own motion, the Adjudicator may in fact review any Small Claims Court order on several grounds including that
- it was an ex-parte order made without notice to the applicant;
- the claim or order was outside the Court’s jurisdiction;
- the order was obtained through fraud; and
- there was error of law on the face of the record or where either party discovers new facts not before the court.
Applications for review are time sensitive and must be made within three months (3) months of the passing of the decree or the making of the order in issue.
Conclusion
The establishment of the Small Claims Court is a progressive step towards the decongestion of the Kenyan courts in furtherance of the fundamental rights of access to justice enshrined in Article 48 of the Constitution. Notably, the Small Claims Court’s simplified procedures, expeditious disposal of suits and cost-effectiveness has enhanced this fundamental freedom.
Should you have any queries on the Small Claims Court of Kenya, please contact us at info@mmsadvocates.co.ke or kachero@mmsadvocates.co.ke