Reforms in the Judiciary are part of the government’s initiative to address the high cost of doing business in the country and a measure to spur growth of local investments and regional trade by ensuring a speedy resolution of disputes.
Director, Business Reforms and Transformation in the State Department of East Africa Community (EAC) Mr Odede Kidenda said establishment of the Small Claims Court is intended to make the country more attractive and competitive for homegrown and regional Micro, Small and Medium Enterprises (MSMEs).
Operationalization of the Small Claims Court, he added, will unlock the billions of shillings held in custodial accounts while commercial cases drag in courts.
“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,” the Director pointed out.
Addressing members of the Kenya National Chamber of Commerce and Industry at a Nakuru Hotel Mr Kidenda observed that the Court had helped most MSMEs access their held up financial resources and assets which in turn has been pumped back into the economy through capital investments.
Mr Kidenda indicated that MSMEs play a critical role in developing economies by sustaining livelihoods, in particular among the women, youth, and vulnerable groups while contributing significantly to national economic growth and employment.
He said through the court that was first inaugurated in May last year at Milimani Commercial Courts in Nairobi, access to justice by aggrieved MSMEs had been enhanced through a quick, inexpensive and informal process.
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 Small Claims Court does not have jurisdiction over criminal suits, land claims, employer and employee relations, malicious prosecution, libel or defamation.
The Director added, “The critical role that the Small Claims Court is playing in development and sustainability of MSMEs cannot be gainsaid. Within the East Africa Community, MSMEs account for 90 percent of businesses, 60 to 70 percent of employment and 50 percent of the Gross Domestic Product.”
Unlike the long process required by other courts to file a suit, plaintiffs in the Small Claims Court only need to download a claimant form from the Judiciary’s website.
The claimant form explains the nature of the suit presented to a court. Claimants pay less than Sh1,000 in nominal fees.
“The Judiciary has strived to ensure that the court is all-inclusive, meaning that complainants who cannot afford lawyers can file their suits personally since the whole procedure has been simplified,” Mr Kidenda said.
Under the Small Claims Court Act, all cases should be heard and determined within 60 days of presenting the claim. The judgments should also be delivered less than three days from the date of the hearing.
The court deals with civil disputes of contract engagements, compensation for injuries, recovery for movable property and liability for losses.
Apart from the official languages of English and Kiswahili, the court allows parties to use indigenous languages, Braille and other forms of communication accessible to people with disabilities.
Plans are underway to roll out Small Claims Courts in every county.
Origins of the small claims court can be traced to 2003, when the government launched the Governance, Justice, Law and Order Sector (GJLOS) Reform Program.
It targeted a speedy, fair, affordable and accessible justice, especially for the poor, marginalized 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 courts are meant to hear simple cases like sale and supply contracts, property damage and loss and claims from personal injury.
Mr Kidenda explained that 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.
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 deems fit for justice so long as it does not fail the test of admissibility of evidence in other courts.
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 brought to a conclusion.
By Jane Ngugi