By Alex Rienye
Last month, Chief Justice Martha Koome announced plans to establish 100 Small Claims Courts across the country to widen access to justice.
This follows a similar initiative involving a partnership between the Nairobi Metropolitan Service (NMS) and the Judiciary to build five such courts in the city suburbs of Kasarani, Makadara, Dagoretti, Mathare and Embakasi.
Devolving the Small Claims Court (SCC) will no doubt go a long way in enhancing access to justice by a majority of Kenyans. Among the most frequent complaints regarding our courts include case delays, expensive court fees and complex procedures rooted in arcane legal traditions.
Litigants pursuing small claims in our courts face the unenviable prospect of recovering only a fraction of the total claim after factoring in court and advocates fees and other expenses. The huge case backlog makes it worse given the inordinately long time taken in settling simple commercial disputes involving small amounts of money.
The idea behind the SCC is to provide an effective means to faster access to justice by reducing case delays and affording claimants a simple and expedited process of settling disputes.
The Court is established by the Small Claims Act 2016 (as amended in 2020) as a subordinate court within the judicial hierarchy, with a jurisdiction to hear and determine claims not exceeding Ksh. 1 million.
It is critical in the realization of Article 48 of the Constitution guaranteeing the right of access to justice. The main advantages of the SCC include expeditious disposal of cases; affordable court fees; fair and simple procedure; and minimizing case backlogs.
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The Court is presided over by an Adjudicator who is an Advocate of the High Court of Kenya with at least three years’ experience. Cases brought before the court are heard and determined on the same day or at least heard on a day-to-day basis until conclusion.
A party can appear in person or through a representative who need not be an Advocate. The SCC is also exempted from the strict application of the civil procedure rules and the rules of evidence. Court filing fees are minimal and range between Ksh 200 to Ksh 1,000 but the court only handles civil and not criminal cases.
In short, this is a court for those seeking expeditious justice for claims that would otherwise not make sense to pursue from a cost and time perspective. The Court is also viewed as a way of freeing money into the economy that would otherwise be tied up in prolonged litigation.
Last year, the SCC at Milimani in Nairobi reportedly concluded matters valued at over Ksh 500 million in just 59 days, pointing to its huge positive impact on the economy. This is cash that can be re-invested in the economy. It will also help unlock millions of shillings for Small and Medium Enterprises (SMEs) supplying goods and services to national and county governments by accelerating settlement of pending bills.
The SCC works on the principle that the cost of resolving a dispute should be proportional to its magnitude and complexity. Some of the greatest beneficiaries of the SCC include those lodging accident claims as the court ensures they access compensation faster and are thus able to pay medical bills or replace damaged assets.
The initiative by NMS in partnering with the Judiciary to put up SCC facilities across Nairobi County will go a long way in facilitating enhanced access to justice by city residents. Having a friendly dispute resolution forum that dispenses timely justice will promote the use of courts in resolving commercial disputes and recovering debts thus providing greater contractual certainty in business relationships.
However, the Judiciary also needs to consider fast-tracking devolution of the SCC in rural areas where disputes are predominantly land and family cases that usually drag on for years thus negatively impacting the livelihoods of millions of Kenyans.
Devolving the SCC will however require significant resources. Given the budgetary constraints facing the Judiciary, political goodwill is key is past experience is anything to go by.
Following the NMS example, counties should team up with the Judiciary to build courts specializing in minor cases. One of the constitutional functions of the counties is bringing essential services closer to the people. Access to justice is one such crucial public service.
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While expanding the existing court infrastructure is good, improving the quality of the justice delivery system is equally crucial. The ordinary Kenyan yearns for a court system that helps meet their expectations for a timely, inexpensive mode of resolving disputes.
Which is also why those vying for office in the upcoming Law Society of Kenya elections must support and prioritize the rollout of SCC system across the country to make faster access to justice a reality to the majority of Kenyans.
Mr. Rienye is an Advocate of the High Court of Kenya ([email protected])
