Kenyan Courts have been plagued with the menace of case backlog for a long time. The Kenyan Judiciary classifies a case as “backlog” if it remains unresolved one year after its filing in a Court. Case backlog amounts to a direct violation of Article 50 (2) (e) of Kenya’s Constitution which provides that every person has the right to a fair trial; which includes the right to have the trial begin and conclude without unreasonable delay.
In 2016, Kenya’s parliament in exercise of the powers conferred upon it under Article 169 (1) (d) of the Constitution enacted the Small Claims Court Act (Hereafter referred to as ‘The Act’ or ‘SCCA’.) The Act was meant to facilitate the implementation of Article 58 of the Constitution by establishing the Small Claims Court. As its name suggests, the Small Claims Court was specifically established to handle ‘small claims’ of civil/ commercial nature and to help reduce the number of cases filed in the magistrates Courts, hence facilitate speedy delivery of justice. Below is a step by step explanation on how the small claims court works and who can seek legal redress from it.
- Jurisdiction of the Small Claims Court
The Small Claims Court has jurisdiction to hear civil and commercial claims of not more than Ksh. 1,000,000. It can handle claims of the following nature:
- Contracts for sale and supply of goods or services;
- Contracts relating to money held and received;
- Liability in tort in respect of loss or damage caused to any property;
- For the delivery or recovery of movable property;
- Compensation for personal injuries; and
- Set-off and counterclaim under any contract.
However, it cannot exercise jurisdiction over a matter where proceedings relating to that claim are pending in or have been heard by any other Court or claims founded upon libel, slander, malicious prosecution and any disputes over title to or possession of land or employment and labour issues.
- Parties to proceedings before the Small Claims Court and Representation
Any person may become a party to proceedings before the Small Claims Court if they lodge a claim before the Court where they or their business is within the geographical limits within which the Court may exercise its jurisdiction or where the cause of action arose within the local limits of the jurisdiction of the Court.
A party to proceedings before the Small Claims Court may either represent themselves or be represented by a duly appointed representative; who may either be a legal practitioner or a person with sufficient knowledge of the case and authority to bind the party being represented.
- Procedure of the Small Claims Court
i). Filing of the Statement of Claim
In order to initiate proceedings before the Small Claims Court, a party has to file with the Court a statement of claim showing the factual basis for the claim. The Statement of Claim should indicate the name and address of both the Claimant and Respondent, the sum of money claimed by the parties and the relief or orders sought from the Court.This may be filed to the Court electronically through the platforms designated by the judiciary or by physically delivering a copy of the statement at the Small Claims Court registry.
ii). Issue and service of summons – The Claimant is required to prepare summons and lodge them with the Court. The summons are then signed by the designated judicial officer and sealed with the Court’s seal, after which the Claimant is required to serve them upon the defendant together with a copy of the statement of claim.
iii). Response to the Statement of Claim – Upon being served with the statement of claim, the respondent is required to lodge with the Court a written response or counter-claim within 15 days of being served.
iii). Notice of Hearing – Upon receipt of the respondent’s written response, the Court shall notify the parties of the date, time and place of hearing of the determination of the claim.
iv). Nature of Proceedings/ Hearings before the Small Claims Court
Both parties i.e. the Claimant and Respondent may call witnesses at the hearing in support of their respective claims. Hearings before the small claims Court may be conducted by telephone, videophone or any other electronic means
The Small Claims Act provides for the exclusion of strict rules of evidence before the Court, to mean that the Small Claims Court is not fully bound by the rules of evidence. It has discretion to admit into evidence any oral or written testimony, record or other material that that it considers credible or trustworthy even though the said material is not admissible as evidence in any other Court under the law of evidence.
- Orders of the Court
Once proceedings are complete, the Small Claims Court may make one or more of the following orders:
(a) | order to pay money either in lump sum or by installments; | ||
(b) | an order for the restitution of any movable property; | ||
(c) | an order for the recovery of any sum in relation to performance of a contract; | ||
(d) | an order dismissing the claim to which the proceedings relate; or | ||
(e) | any such consequential or ancillary orders as may be necessary including, any stipulations or conditions for the enforcement of its orders or directions. |
If a party is aggrieved by the decision or order of the Small Claims Court, it may appeal against the decision to the High Court only on matters of law and not on facts. Upon hearing the Appeal, the decision by the High Court is final and no further appeals may be made.
Why file at the Small Claims Court?
- Expeditious hearing and determination of claims – The Small Claims Court is required to hear and determine cases before it within 60 days. This deals away with the time consuming process involved in higher Courts, where matters can go on for more than one year before a verdict is given.
- Simplified Court Procedure –Unlike higher Courts which are bound by strict rules of procedure that are often disadvantageous to the ordinary Kenyan seeking to represent himself in Court, the Small Claims Court is not bound by rules of procedure and evidence. This demystifies the Court process, making it easier for the layman seeking legal redress from the Court on his own behalf, without involving legal counsel.
- Cost efficient – The cost of filing a new civil or commercial claims range from Kshs. 200 – 1000 depending on the value of the claim. Further, there are no additional fees for subsequent documents such as affidavits as is the case in higher Courts.
- Digitized Court process – The Small Claims Act stipulates that the Small Claims Court may conduct its proceedings via electronic means such as telephone or videophone.
Conclusion
The Small Claims Court provides an effective avenue for speedy delivery of with less stringent observance of rules of civil procedure in the Court. It provides a welcome solution to Kenyans by not only addressing the issue of case backlogs, but also making it easier for Kenyans to effectively represent themselves in matters before the Court.In case you require any clarification or have an inquiry, please do not hesitate to contact us.
By: Rebecca Patience Wandera.
Legal Assistant and Researcher
Oseko Advocates LLP.
Email: wandera@osekoadvocates.com