Will the small claims court deliver justice?

It took Wamboi 11 years for her suit against an insurance company for Sh200,000 to be concluded. By the time of the ruling in 2018 she was frustrated and even regretted filing the case.

In contrast, it took her husband a month to resolve a case at the small claims court launched in April this year.

“My husband was telling me his experience...within one month of filing, his case was heard, it was all online, and the following day the magistrate ruled,” she said.

“Contrast that with my experience in 2007. Someone hit my car on Uhuru Highway, and I sued for Sh200,000. It took me 11 years for the case to be concluded and get paid. I regretted filing the matter,” she said.

The journey towards achieving access to justice as envisaged in the Constitution has, thus, suffered many stumbling blocks, key among them the backlog of cases in the conventional court system.

Many times, creditors have been frustrated by the slow wheels of justice, which create an incentive for defaulters to resort to courts knowing that most pragmatic Kenyans won't bother to pursue the debt since it makes no economic sense to do so.

According to the State of Judiciary Report, by June 2020 Milimani Commercial & Tax Division had the second highest number of pending court cases at 7,497.

In two months since establishment, the small claims court has heard and determined 1,200 cases with just five adjudicators and one court.

“The adjudicators are handling on average 600 cases a month. I know of someone whose case was heard within 10 days, he served the other party who did not come to court, and the matter proceeded. Small claims matters are easier because parties know each other,” said Stella Kanyiri, the small claims courts registrar.

City lawyer Wilberforce Akello, a partner and head of litigation at Robson Harris & Company Advocates, said the operationalisation of the small claims court will unlock the billions of shillings held in custodial accounts while commercial cases drag in court.

“The case backlog has occasioned delayed hearing and determination of disputes particularly commercial claims thereby affecting the ease of doing business in Kenya. This necessitated the establishment of Small Claims Court as one of the measures in promoting access to justice,” Mr Akello said.

He said the evolution of the Judiciary since promulgation of the 2010 Constitution has helped create alternatives to the one-shoe-fits-all system.

Origins of the small claims court can be traced to 2003, when the government launched the Governance, Justice, Law and Order Sector (GJLOS) Reform Programme.

It targeted a speedy, fair, affordable and accessible justice, especially for the poor, marginalised and the vulnerable through the enactment of initiatives such as Small Claims Court, which would provide a small, informal, quick process to adjudicate minor disputes.

The Small Claims Act was passed in 2016 and it was only in April this year that the Court got its first station in Nairobi County after gazettement and official launch presided over by the Deputy Chief Justice Philomena Mwilu, who was at the time Acting Chief Justice.

As is the case with any other subordinate courts, the Court is subject to both pecuniary and geographical jurisdictions and is limited to matters below Sh1 million and locations determined by the Chief Justice.

The courts are meant to hear simple cases like sale and supply contracts, property damage and loss and claims from personal injury.

The Small Claims Court does not have jurisdiction over criminal suits, land claims, employer and employee relations, libel or defamation.

Mr Akello explained the small claims court is unique in that it is supposed to stay simple and expeditious solving matters in less than two months.

ACCESSIBLE PLATFORMS

Records are kept in English, Kiswahili and any other appropriate language, including indigenous languages, Kenya Sign Language, Braille and any other communication format accessible to persons with disabilities.

Parties may appear in person or may be represented by an advocate or next of kin or a close relative appointed in writing and approved by the adjudicator.

“Where the representative is not a legal practitioner, they must seek the permission of the Court and the Court shall only grant such permission upon satisfying itself that the person has sufficient knowledge of the case and sufficient authority to bind the party being represented,” he said.

The Court is also not as strict and rigid as is applicable in other courts. It controls its own procedure in the determination of claims before it, provided that such procedure does not offend the principles of natural justice.

It is not bound wholly by the rules of evidence and may admit evidence as it thinks fit for justice so long as it does not fail the test of admissibility of evidence in other courts.

It is not even mandatory that the evidence be given under oath.

The court allows for an alternative resolution of cases and where parties are not happy with the outcome, they can apply for a review within a month or even appeal in the High Court where the matter will be laid to rest.

Matters emanating from the Small Claims Court will not find their way into the Court of Appeal.

“There is a need to expand the small claims courts to locations across the country to have meaningful decrease in case backlogs. Currently, the court has only one station in Nairobi County and, therefore, access to justice through it is limited to Nairobi County,” Mr Akello said.

He said the progressive implementation of the Act and operationalisation of the Court is intended to ensure that such platforms are accessible at sub-county level and progressively in other decentralised units of judicial service delivery.

This is expected to deliver a speedy, cheaper and quicker resolution of disputes, which in effect, will reduce case backlog and further facilitate the ease of doing business in Kenya.