OPERATIONALIZATION OF THE SMALL CLAIMS COURT
OPERATIONALIZATION OF THE SMALL CLAIMS COURT
OPERATIONALIZATION OF THE SMALL CLAIMS COURT
Introduction
The Small Claims Court Act No. 2 of 2016 was enacted in 2016, establishing the Small Claims Court to hear and determine small claims in a simple, inexpensive and expeditious manner. To give effect to this Act, on 23rd August 2019, the Chief Justice gazetted the Small Claims Court Rules, 2019, and subsequently, the Parliament amended the Act through the Small Claims Court (Amendment) Act, 2020, making slight amendments.
Under the Act, the Chief Justice is mandated to designate any court station through a gazette notice to hear and determine small claims and designate any judicial officer to act as an Adjudicator in the Small Claims Court. In fulfillment of this role, the acting Chief Justice Hon. Lady Justice Philomena Mbete Mwilu, via a gazette notice No. 3791 of 2021 dated 23rd April 2021, gazetted the first Small claims court at the Milimani Commercial Court, Nairobi, and three adjudicators and an acting Registrar to adjudicate the Court. This operationalized the Small Claims Court Act and set the course to designate and establish other Small claims courts in Kenya.
What is a Small claims court?
Small claims court is a subordinate court within the structure of the Judiciary specifically designed to resolve civil and commercial disputes with relatively small claims of up to Kshs 1,000,000/=. The matters before this Court are heard and determined by an Adjudicator appointed by the Judicial Service Commission.
The cases brought to the Small claims courts comprise of civil and commercial claims relating to contracts for sale and supply of goods and services, contracts relating to money held and received, liability in tort in respect to loss or damages to any property, or for the recovery of movable property, compensation for personal injuries and set-off and counterclaim under any contract. However, the Court cannot hear claims where the cause of action relates to defamation, libel, slander, malicious prosecution, disputes regarding titles or possession of land, or employment and labor relations.
Filing a Claim in the Small Claims Court
The process of filing a claim in small claims court is simplified and affordable. A claim is filed by filling out prescribed forms with specific information to the claimant’s claim and filing the forms electronically through the designated platforms. The Claimant shall then pay the filing fees which range from Kshs 200/- to Kshs 1000/- based on the claim amount.
After that, the claimant is given a case number and summons for service to the Respondent. The Respondent must receive a copy of the statement of claim to enable their response to the claim. Service shall be done within 7 days of filing through the means of service prescribed in the Civil Procedure Rules. Within 14 days of service, the Respondent shall be required to respond through a response to claim or, if need be, counterclaim/sets off or file a Third-Party Notice through the prescribed forms.
The parties in these claims need not to have an Advocate on record as they can represent themselves or appoint their authorized representatives. The Act provides that authorized representatives can be a next of kin or a close relative appointed in writing and approved by the Adjudicator. This removes the strict legal requirement of proof locus standi and minimizes the expenses involved in hiring legal practitioners.
Hearings at the Small Claims Court
The rules and procedures in these courts are more straightforward and faster than in other courts. The hearings are informal, and the Adjudicators employ appropriate mechanisms to ensure expeditious disposal of suits, i.e., direct hearings to be conducted
electronically or in person at a designated place. Further, during hearings, the adjudicators shall only allow adjournments under exceptional and unforeseen circumstances, which adjournments shall be limited to three times. The strict rules of
evidence also do not apply, and the parties are not allowed to raise technical objections on the ground of any want of form.
The Small Claims court employs resolution of disputes through ADR and other dispute resolution mechanisms by adopting settlement agreements and consent judgments to
facilitate the amicable settlement of claims. This shall further ensure expeditious disposal of suits, fairness, flexibility, cost-effectiveness, party satisfaction, and foster relationships between the parties.
Orders that the Court can make
Upon the hearing of the claim, the Adjudicator shall deliver a judgment within reasonable timelines. The orders that the Court may issue concerning any matter before it includes an order for the restitution of any movable property; an order for the recovery of any sum in relation to the performance of a contract; an order dismissing the claim to which the proceedings relate or any such orders as the Court may deem necessary including, any stipulations or conditions for the enforcement of its orders.
Conclusion
The enactment and operationalization of this Act is part of the judicial reforms aimed at reducing the backlog of cases in the Courts, enhancing access to justice, and promoting the ease of doing business in Kenya. Thus, the Small Claims Court incorporates the above through providing timely disposal of all proceedings using the least expensive method, ensuring equal opportunity in the access of judicial services, promoting fairness of the judicial process, and simplifying procedures in the Court.
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Karanja-Njenga Advocates