Establishment of the Small Claims Court
The Small Claims Act of 2016, which was assented to on 1st April 2016, established the Small Claims Court (herein referred to as the SCC). One of the reasons for the establishment of the SCC was to help with the backlog of cases at the Judiciary with the hope of optimizing the operation of the Judiciary. It was not until April 2021, however, that the very first Small Claims Court station was established in Nairobi at the Milimani Law Courts.
Why establish a Small Claims Court in Kenya?
Access to justice is one challenge that people of Kenya have and continue to face. The SCC was created to provide an approachable and user-friendly avenue where litigants could have their matters heard and dispensed off expeditiously without being strictly confined to the rules of procedure thus safeguarding and guaranteeing the right of access to justice as framed under article 48 of the Constitution. It is worth noting that litigants are able to appear on their own before the SCC without requiring the representation of an advocate.
What is the monetary jurisdiction of the SCC?
Under Section 12(3) of the Small Claims Court Act, the SCC deals with matters whose value does not exceed One Million Kenya Shillings (Kshs. 1,000,000.00). This means that if your claim is above the limit of Kshs 1,000,000.00 then you cannot file it within the SCC, unless you agree to forfeit the amount in excess of Kshs 1,000.000.00. The Chief Justice however has powers to confer upon the Court such any other pecuniary jurisdiction as he/ she may deem fit.
What kind of matters can I file in the SCC?
The Act stipulates that the Court has jurisdiction to determine any civil claim relating to:
- contract for sale and supply of goods or services;
- 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
This jurisdiction is however not limited as the Court can exercise any other civil jurisdiction as may be conferred upon it by any other written law.
What kind of matters will not be entertained in the SCC?
Certain matters are expressly excluded from the jurisdiction of the SCC under Section 13 of the Act. Such include matters in which the course of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute overtitle to or possession of land, or employment and labour relations. It is important to add that no criminal action can be lodged before the Court as well.
What determines the place to file a claim?
Also known as the territorial jurisdiction, the Act stipulates that the right to lodge a claim before the Court is limited to; where the person ordinarily resides or carries business within the local limits of the jurisdiction of the Court;
- where the subject matter of the claim is situated within the local limits of the
jurisdiction of the Court;
- where the contract to which the claim relates was either made or was
intended to be performed within the local limits of the jurisdiction of the Court;
- where the cause of action arose within the local limits of the jurisdiction of the Court;
- or where the defendant to the claim resides within the local limits of the
jurisdiction of the Court
This does not however limit one from lodging a claim before any other Court with a similar jurisdiction. The fact that the Small Claims Courts are situated in less than half oft he counties poses a problem to litigants on where they should lodge their claims. The practice has been that the claims can be lodged before the Magistrates Court where such SCC do not exist.
At the moment, Kenya boasts of over 10 court stations with an SCC including Nairobi, Kisumu, Mombasa, Naivasha, Kakamega, Nyeri, Meru, Nakuru, Eldoret, Kajiado and Thika. This is a clarion call for the Judiciary to establish as many stations as possible. The Chief Justice has previously hinted that plans are underway to roll out 100 Small Claims Courts across the country by the end of the
year. It remains to be seen whether this will be the case. It is worth tilting the hat for these Courts due to the fact that within 59 days of the creation of the first station, out of the 5,080 matters filed, 2,347 had been disposed. That creates an abstract image of what they intend to achieve.