The Small Claims Court is established by the Small Claims Act 2016. This is a subordinate court in the structure of the court system in Kenya under Article 169 (1) of the Constitution with a monetary jurisdiction of matters not exceeding Kes One million (Kes 1000,000).
Small courts are established as part of an initiative to improve the ease of doing business in the country. The courts are projected to reduce backlog of cases by having disputes resolved through simple, inexpensive and expeditious procedures, thus enhancing access to justice.
The main objective of the court is to guarantee the right of access to justice as envisioned under Article 48 of the Constitution through simplicity of procedure, timely disposal of proceedings, fairness of process and reasonable court fees.
Mandate of the Court.
The Small Claims Court draws its mandate from Article 169 (1) (d) of the Constitution of Kenya, 2010 which creates subordinate courts.
Establishment, Organization and Administration of the Court
The Small Claims Court is established under Section 4 (1) of the Small Claims Act 2016 as a subordinate court pursuant to article 169 (1) (d) of the Constitution which states inter alia “ any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162”.
The Chief Justice is empowered under section 4 (2) as read together with section 11 (1) and (2) to designate any court station as a Small Claims Court (SCC) and specify the geographical jurisdiction of any such court, through a Gazette Notice.
The Small Claims Court is presided over by an adjudicator who is an advocate of the High Court of Kenya with at least three years experience in the legal field.
In accordance with Section 6(1) of the SCC Act, the Judicial Service Commission is tasked with the role of appointing adjudicators, registrars and other officers of the court as may be necessary for the effective discharge of its functions. The Chief Justice may also designate any judicial officer to act as an adjudicator.
Jurisdiction of the Court
The Chief Justice determines the local limits of the jurisdiction of the Small Claims Court and ensures that the courts are accessible in every sub-county and progressively in other decentralized units of judicial service delivery.
The Court has jurisdiction to determine any civil claim relating to:
(a) A contract for sale and supply of goods and services;
(b) A contract relating to money held and received;
(c) Liability in tort in respect of loss or damage caused to any property or for the recovery of movable property;
(d) Compensation for personal injuries;
(e) Set-off and counterclaim under any contract.
The court handles matters with a monetary value limited to one million shillings.
However, no proceedings relating to the same cause of action are to be brought before any other court except where the proceedings before that other court were commenced before the claim was lodged with the SCC or the claim before the other court has been withdrawn.
A claim cannot be brought before the Small Claims Court if proceedings relating to that claim are pending in or have been heard and determined by any other court. A higher court may transfer a claim to the Small Claims Court.
The Small Claims Court cannot hear claims where the cause of action is founded upon defamation, libel, slander, malicious prosecution, orupon a dispute over a title to or possession of land, or a matter concerning employment and labour relations.
Procedure before the Court
The procedure before the court is provided for under Part IV of the SCC Act, 2016 and the Small Claims Courts Rules, 2019. More specifically, the rules on filing of claims before the court are rather flexible and are provided for under section 23 of the SCC Act, 2016.
How to file a Claim?
The following procedures shall apply to the matters filed under the Small Claims Court:
- Download the SCC Forms from the Judiciary website using the following link: https://www.judiciary.go.ke/download/small-claims-court-form/
- Fill in all the details as provided for in the form.
- All documents shall be filed electronically in PDF format.
- All documents filed MUST have the email address and telephone number of the advocate/party drawing the pleadings and respondent’s contacts.
- Detailed procedure on filing, invoicing and payments can be found from the judiciary link file:///C:/Users/Registry/Downloads/PUBLIC%20NOTICE.pdf
However a claim can be made orally and it will be the duty of the court officer to turn the oral claim into a written one. The claim shall only be valid if supported by the claimant’s signature.
The court may, with the consent of parties, adopt other modes of alternative dispute resolution mechanisms and any agreement reached by means of an alternative dispute resolution mechanism may be recorded as a binding order of the court.
The language of the court during any proceedings will be English, Kiswahili or any other appropriate language. The court will also facilitate the use by parties of indigenous languages, Kenyan sign language, Braille and other communication formats and technologies accessible to persons with disabilities.
Representation of parties before the Small Claims Court is provided for under Section 20 of the Small Claims Court Act, which allows legal practitioners to represent parties before the court. The Act excludes the strict application of the rules of evidence in the Court under article 32 of the SCC act 2016.
Timelines of Hearings.
Proceedings are done in a timeous manner with deadlines and to their conclusion. Section 34 provides that all proceedings shall be heard and determined on the same day or on a day-to-day basis until final determination. The court has to hear and determine a matter within 60 days (2 months) from the date it was instituted.
The Court may only adjourn the hearing of any matter under exceptional and unforeseen circumstances which shall be recorded and be limited to a maximum of three adjournments.
Orders that can be made by the Court
Article 32 of the SCC act prescribes the orders the the Court may make:
(a) Order to pay money either in lump sum or by instalments;
(b) An order for the restitution of any movable property;
(c) An order for the recovery of any sum in relation to performance of a contract;
(d) An order dismissing the claim to which the proceedings relate; or
(e) Any such consequential or ancillary orders as may be necessary including, any stipulations or conditions for the enforcement of its orders or directions.
The first Small Claim Court was established and begun operations in April 2021 at Milimani Law Courts (Nairobi). The courts at Milimani are currently manned by 10 adjudicators. The Judiciary has further established five operational Small Claims Court in Milimani, Kajiado, Thika, Machakos and Eldoret. The Machakos court will conduct its sittings in Makueni County with a sub-registry for virtual court and e-filing support being maintained at the Machakos Law Courts, in efforts to enhance access to justice.
It is further planning to roll out similar courts in Mombasa, Nakuru, Naivasha, Kisumu, Kakamega and Meru in this financial year.