JUSTICE DEEMED DONE; THE DECENTRALIZED DELIVERY OF JUSTICE UNDER THE SMALL CLAIMS COURT ACT, NO. 2 OF 2016

By Austin Odoyo[1] and Kichwen Kemboi [2]

INTRODUCTION

When Abraham Lincoln said that the probability that we may fail in the struggle ought not to deter us from the cause we believe to be just, he may not have envisioned a situation and milestone recently achieved. Judiciary and justice system critics have for long whined about the backlog of cases and the slow-moving wheels of justice. The critics forgot that the wheels might be turning slow, but they grind exceedingly fine. In 2016, a notable legislation, the Small Claims Court Act was passed. On 26th April 2021, five years later, Ag CJ Lady Justice Philomena Mwilu launched the first Small Claims Court at Milimani. This is a game changer and a significant step towards the backlog of cases. In paying homage to Article 169(1)(d) of the Constitution of Kenya, 2010 and the phrase “justice must be seen to be done” I will highlight the key features of the Act and what is set to be achieved by its implementation

PRINCIPLE OF JUDICIAL AUTHORITY

The mantra is that the small claims Court shall be guided by the same constitutional principles that guide other courts established in the Constitution of Kenya, 2010. In exercising judicial authority, the court shall be guided by the principles: justice shall be done to all irrespective of status;[3] justice shall not be delayed;[4] alternative dispute resolution shall be promoted;[5] justice shall be administered without undue regard to procedural technicalities;[6] and the purpose and principles of the constitution shall be protected.[7]

In adopting the above principle, the Small Claims Court Act,[8] deduced that the court had the authority to adopt procedures appropriate to ensure timely disposal of all proceedings before the court using the least expensive method and equal access to judicial services.[9] The principles of fairness of process and simplicity of procedures are to be adopted by the Small Claims Court.[10]

[1] LLB (MOI), PGD (KSL), Associate, Kipkenda & Company Advocates, Advocate of the High Court of Kenya

[2] LL.B (KABU), PGD (KSL) (Student), Pupil, Kipkenda & Company Advocates.

[3] The Constitution of Kenya, 2010 at Article 159(2)(A)

[4] The Constitution of Kenya, 2010 at Article 159(2)(B)

[5] The Constitution of Kenya, 2010 at Article 159(2)(C)

[6] The Constitution of Kenya, 2010 at Article 159(2)(D)

[7] The Constitution of Kenya, 2010 at Article 159(2)( E)

[8] Small Claims Court Act, No. 2 of 2016 at Section 3(1)

JURISDICTION OF THE COURT

In realizing decentralization of justice, the Chief Justice shall determine the local limits of the jurisdiction of the court. When determining the same, the Chief Justice shall ensure that such courts are accessible in every sub-county and progressively in other decentralized units of judicial service delivery.[11]

The SCC has jurisdiction to determine any civil claim relating to; (a) a contract of sale and supply of goods or services; (b) a contract relating to money held or received; (c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; (d) compensation for personal injuries; and (e) set off or counter claims under any contract.[12]

Notable to say, there are express limitations and exclusions on the jurisdiction of the SCC. First, the pecuniary jurisdiction of the court shall be limited to one million shillings.[13] Second, the SCC cannot hear claims where the cause of action is founded upon defamation, libel, slander, malicious prosecution, or upon a dispute over a title to or possession of land or a matter concerning employment and labour relations.[14] Third, owing to the sub judice and re judicata doctrines, no proceedings relating to the same cause of action are to be brought before any other court except where the proceedings before the other court has been withdrawn.[15] Also, a claim cannot be brought before the SCC if proceedings relating to that claim are pending in or have been heard and determined by any other court.[16] In any case, a higher court may transmit a claim to the SCC.[17]

PROCEDURE BEFORE THE COURT

[9] Small Claims Court Act, No. 2 of 2016 at Section 3(3)

[10] ibid

[11] Small Claims Court Act, No. 2 of 2016 at Section 11

[12] Small Claims Court Act, No. 2 of 2016 at Section 12

[13] Small Claims Court Act, No. 2 of 2016 at Section 12(3)

[14] Small Claims Court Act, No. 2 of 2016 at Section 13(5)

[15] Small Claims Court Act, No. 2 of 2016 at Section 13(1)

[16] Small Claims Court Act, No. 2 of 2016 at Section 13(2)

[17]Small Claims Court Act, No. 2 of 2016 at Section 13(3)

The procedure before the SCC is provided for under Part IV of the SCC Act, 2016 and the Small Claims Court Rules 2019.[18] The explicate features on the procedures making the SCC different from the other courts clear from the SCC Act. First, the rules on filing of claims before the court are flexible as provided for under section 23 of the SCC Act 2016. Second, a party to the proceedings shall appear in person or where he or she is unable, be represented by a duly authorized representative.[19] Before permitting one to act as a representative, the court shall satisfy itself that the person has sufficient authority to bind the party being represented where the representative is not a legal practitioner.[20] Third, English or Kiswahili is the language in use in SCC. However, any other appropriate language may be used at any stage of the proceedings of court.[21] It should be noted that in all appropriate causes, the court shall facilitate the use by parties of indigenous languages.[22] Last, the court is not bound wholly by the rules of evidence.[23]

CONCLUSION

As aforementioned, the objective of the SCC is to expedite the adjudication of civil matters involving money or property valued at one million shillings. The question asked, is the pecuniary amount small money in Kenya economic terms? It is wise to also note, whether section 20 of SCC Act, 2016 by allowing representatives, who are not legal practitioners, will augur well with the qualified legal practitioners themselves. When all is done and dusted, justice must not only be done, but be seen to be done.

[18] http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%202%20of%202016

[19] Small Claims Court Act, No. 2 of 2016 at Section 20(1)

[20] Small Claims Court Act, No. 2 of 2016 at Section 20(3)

[21] Small Claims Court Act, No. 2 of 2016 at Section 21(1)

[22] Small Claims Court Act, No. 2 of 2016 at Section 21(3)

[23] Small Claims Court Act, No. 2 of 2016 at Section 32

BP2O3047
AUSTINE OTIENO ODOYO
Associate, Advocate of the High Court of Kenya

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