(Appeal from judgement and decree of Hon. V Momanyi, Resident Magistrate, in Nairobi SCCC No. E4108 of 2023, of 8th December 2023)
1. The matter before the trial court had been initiated by the respondent against the appellant. It was a claim for Kshs. 252,465.48, in respect of moneys lent, but not repaid. The appellant resisted the claim. He acknowledged the interaction with the respondent but denied ever being lent the money the subject of the dispute. He counterclaimed for Kshs. 350,543.00. A trial was conducted. Both parties testified. A judgement was delivered on 8th December 2023, in favour of the respondent.
2. The appellant was aggrieved; hence he filed this appeal, vide a memorandum of appeal, dated 25th January 2024. The grounds are that the trial court erred in finding that the agreement, the subject of the dispute, was enforceable; awarding double compensation; dismissing the counterclaim without considering the evidence; awarding general damages in a case of breach of contract; making an award of Kshs. 252,465.48 without basis; failing to find that the agreement had an arbitration clause; and filling in the gaps in the case.
3. Directions were taken, before the Judge, on an undisclosed date, for canvassing of the appeal by way of written submissions.
4. Both sides have complied, by filing their respective written submissions. The parties have argued around the trial court lacking jurisdiction, in view of the arbitration clause in the subject agreement; failing to consider all the facts presented; and awarding general damages for breach of contract.
5. Before I consider the appeal, on its merits, if at all I will get to do so, let me first deal with an issue that the parties have not raised, which did not arise at trial, but which ought to be at the core of this matter. That is whether the trial court had jurisdiction, as of 8th December 2023, when it determined the matter before it. For if there was no jurisdiction, as of 8th December 2023, the appeal herein would have no foundation, for it would be based on an invalid judgement.
6. The matter before the trial court was initiated and determined as a small claim, under the Small Claims Court Act, Cap 10 A, Laws of Kenya. The judicial officer, or officers, who handled the matter, presided over a Small Claims Court, established under the Small Claims Court Act.
7. The jurisdiction of the Small Claims Court is set out in Parts III and IV of the Small Claims Court Act. Part III sets out the geographical jurisdiction of the court, at section 11; jurisdiction with respect to the nature of the claims handleable by the court, at section 12(1); and the pecuniary jurisdiction, at section 12(3). Part IV sets out the procedural jurisdiction of the court. It covers such areas as, control of its own procedures, at section 17; adoption of alternative resolution mechanisms, at section 18; permitting representation of the parties, at section 20; entry of default judgement, at section 28; proceeding by electronic means, at section 30; consolidation of claims, at section 31; exclusion of strict rules of evidence, at section 32; expeditious disposal of matters, at section 34; and orders that the court may make, at section 36.
8. The principal features of the Small Claims Court are the key jurisdiction areas around the value of the claim, the duration within which the claims should be resolved, the nature of the claims themselves and relaxation of the rules of evidence and procedure. It is these jurisdictional features that ought to mark what the Small Claims Court should be, that is, a court designed to handle small claims, with expedition, and, to achieve that, certain rules of evidence and procedure must be relaxed, while others must be tightened.
9. The object, essence and character of the court, imagined by the Small Claims Court Act, comes out in section 3 of the Act, through what is legislated as the “guiding principles.” Section 3(1) envisages a court anchored on the principles of judicial authority prescribed under Article 159(2) of the Constitution; while section 3(2) requires the court to adopt procedures which ensure timely disposal of proceedings, use of the least expensive methods, equal opportunity of access to justice for all, fairness in the process and simplicity of procedure.
10. The said provision, section 3, states as follows:
“3. Guiding principles
(1) In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution.
(2)The parties and their duly authorized representatives, as the case may be, shall assist the Court to facilitate the observance of the guiding principles set out in this section, to that effect, to participate in the proceedings of the Court and to comply with directions and orders of that Court.
(3) Without prejudice to the generality of subsection (1) the Court shall adopt such procedures as the Court deems appropriate to ensure—
(a) the timely disposal of all proceedings before the Court using the least expensive method;
(b) equal opportunity to access judicial services under this Act;
(c) fairness of process; and
(d) simplicity of procedure.”
11. Article 159(2) is about justice being done to all irrespective of status, not being delayed, promotion of alternative modes of dispute resolution, eschewing of procedural technicalities and promotion of the purposes of the Constitution. The principal themes, captured in section 3 of the Small Claims Court Act, are access to justice for all irrespective of status, expeditious disposal of matters, alternative modes of dispute resolution, and avoidance of technicalities of procedure.
12. For avoidance of doubt, Article 159(2) of the Constitution provides:
“159. Judicial authority
(1) …
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted …;
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.”
13. With respect to access to justice for all, focus is on small claims. People of small means also tend to have small claims. The court, envisaged by the Small Claims Court Act, is one that would be accessible to persons in that social stratum. The Small Claims Court Act seeks to devolve the courts to the lowest level, in terms of claims of very low economic value. There is a coincidence of low social stratum and low economic means, on the one hand, and low standards of education on the other. Individuals, who have low formal education, would, often, find navigating around the technicalities, associated with the rules of procedure and evidence in the court, inhibitive, and such technicalities limit their access to justice. The Small Claims Court Act seeks to ease access to the courts and the justice system for such persons, by giving them a court which eschews technicalities of procedure, and which has jurisdiction to fashion its own rules of procedure, to suit the needs of its class of litigants, tailored to ease their access to justice.
14. Emphasis is given to simplicity of procedures and avoidance of procedural technicalities. Simplification of procedures and relaxation of the rules of evidence are meant to make the proceedings of the court inexpensive and the court more accessible, for the cohort of litigants, for whom the court, designed by the Small Claims Court Act, is meant. Delays in disposal translates to expense for those with limited resources, hence the need to have the matters disposed of as soon as possible, to the extent of them being heard and decided the same day. There is also encouragement, to the court, to adopt modes of dispute resolution that that cohort is familiar with.
15. The provisions of the Small Claims Court Act should be seen in that light, of a court that handles small claims, speedily, using the simplest of procedures. The jurisdiction of the Small Claims Court is exercised within those parameters: small claims, simple procedure, and determination within very short timespans. The pecuniary jurisdiction is set at a maximum of Kshs. 1,000,000.00. The period within which the jurisdiction is to be exercised is set at 60 days. Jurisdiction is granted to relax the rules of evidence and procedure. It is these elements that ought to characterize the court envisaged by the Small Claims Court Act. They create a special jurisdiction for that court.
16. From the appeals that have come my way, from that court, the Small Claims Court, the jurisdiction relating to that court, for handling claims whose value does not go beyond Kshs. 1,000,000.00, is being strictly adhered to. However, I doubt that the other jurisdictions are being respected. The one that is obviously least observed is that relating to the 60-day rule, for determining the claims. In almost all the appeals that I have handled so far, determinations were made outside the 60-days jurisdiction, prescribed by section 34(1) of the Small Claims Court Act. So, there is no expeditious disposal of the matters. More crucially, the determinations, made outside the 60 days, are without jurisdiction, and invalid, therefore.
17. To my understanding, the non-compliance with the 60-day rule has something to do with the Small Claims Court not exercising the jurisdiction granted to it by the Act, to relax the rules of evidence and procedure, and to have control of its own procedures. To my thinking, relaxation of the rules of evidence and having control of its procedures would point to the said court having jurisdiction to fashion its own procedures, to suit the unique needs of the targeted litigants, to facilitate disposal of the claims within 60-days. The Small Claims Court Act gives the Small Claims Court a broad latitude and discretion, with respect to how it handles evidence and procedure, to enable it to accommodate its poor clientele, and dispose of their claims in the shortest time possible. The provisions, in sections 3(3) and 17 of the Small Claims Court Act, about the Small Claims Court having control over its own procedures, is not dissimilar to Article 163(8) of the Constitution, with respect to the Supreme Court making rules for exercise of its jurisdiction, no doubt informed by the very strict timelines, under Article 140 of the Constitution, for disposal of the Presidential election dispute.
18. The sense I get, with respect, is that the Small Claims Court project is failing. As currently operating, the Small Claims Court, does not, or no longer, meets or aligns to the objectives for which it was set up by the Small Claims Court Act. It is no longer a Small Claims Court defined by simplicity of procedure, and the desire to obtain expeditious disposal of claims. The trajectory, that it has taken, has brought it at par with the Magistrate Court and the High Court, in terms of operating under a framework of procedure defined by the Civil Procedure Act, Cap 21, Laws of Kenya, and the Civil Procedure Rules, instead of the Small Claims Court Act, upon which it ought to be anchored.
19. The High Court, as the superior court that supervises the Small Claims Court, by dint of Article 165(5)(7) of the Constitution, has not helped that court. The objective, of expeditious disposal of claims, has been adulterated by the construction to which the High Court has given to section 34(1) of the Small Claims Court Act. Section 34(1) limits the jurisdiction of the Small Claims Court, during which it should determine claims, to 60 days. Put differently, the Small Claims Court Act has conferred upon the Small Claims Court a 60-day jurisdiction only, to hear and determine the claims that it is seized of. That provision is attuned to the spirit and the overall objective of the Small Claims Court Act. It is a conscious and deliberate provision, for the promotion of the objects of the Act, as set out in section 3.
20. To facilitate its implementation of the 60-day rule, the provision itself, that is section 34, prescribes ways of achieving that objective. It decrees that matters should be heard and determined the same day. The Small Claims Court should take evidence and deliver a judgement or make a determination the same day. Where that cannot work, it prescribes that the court adopts the strategy of hearing the matter on a day-to-day basis until it completes it. Judgements or determinations, where they cannot be delivered or made on the day hearing is completed, should be delivered at least within 3 days of completion of the hearing. Adjournments are discouraged, and should be allowed only in exceptional circumstances, which are defined. In any event, only a maximum of 3 adjournments is allowed.
21. Contrary to the stated objective of the Small Claims Court Act, the High Court has, in such decisions as Crown Beverages Limited vs. MFI Documents Solutions Limited [2023] KEHC 58 (KLR) (Majanja, J), Biosystems Consultants vs. Nyali Links Arcade [2023] KEHC 21068 (Magare, J) and Lumumba vs. Gift Gas Limited [2023] KEHC 25998 (Majanja, J), by judicial craft, removed that jurisdiction, and it has given to the Small Claims Court an open or unlimited jurisdiction, timewise, within which to determine these matters, which has brought it at par with the Magistrate’s Court and the High Court, with respect to the timelines that those other 2 courts operate under, while handling their matters, as prescribed under the Civil Procedure Act and the Civil Procedure Rules.
22. The Rules developed to operationalise the Small Claims Court Act have not helped either. The Small Claims Court Rules are largely a replica of the Civil Procedure Rules. They have reproduced the complexities associated with the processes at the Magistrate’s Court and the High Court, which often hinder access to justice for the poor and the underprivileged. The Small Claims Court Act sought to sidestep those complexities by establishing a special court, with a special jurisdiction, with a less stringent procedural framework compared to that under the Civil Procedure Act and the Civil Procedure Rules, which governs proceedings at the Magistrate’s Court and the High Court.
23. Part of what complicates the position of the Small Claims Court could also be the judicial officers who preside over that court. The design, by the Small Claims Court Act, is that of a court to be presided over by Adjudicators, but not Magistrates, as the Small Claims Court is a distinct court from the Magistrate’s Court. However, the Chief Justice has power, under the Small Claims Court Act, to appoint other judicial officers, such as Magistrates, to sit at the Small Claims Court as Adjudicators. At present, no Adjudicators have been appointed, and the Small Claims Court is being presided over and run by Magistrates, presumably nominated to do so by the Chief Justice. The Magistrates, sitting as Adjudicators, also sit as Magistrates, over matters initiated under the Civil Procedure Act and the Civil Procedure Rules.
24. Such magistrates exercise jurisdiction under the Small Claims Court Act, when handling Small Claims Court work, and under the Magistrates’ Court Act, and the Civil Procedure Act and the Civil Procedure Rules, when handling Magistrate’s Court work. It is something doable, but with the potential of undermining the objectives of the Small Claims Court Act, for there could be a real risk that the Magistrates could end up handling the Small Claims Court matters as if they are handling matters subject to the Civil Procedure Act, rather than the Small Claims Court Act. There could be an unconscious challenge, with juggling or transitioning from sitting as Adjudicator to sitting as Magistrate. It should not be forgotten that these are entry level positions, where young or newly enrolled Advocates are taking baby steps in the profession, and struggling to find their footing, in terms of making sense of the business of the legal profession, in the context of the workings of the Judiciary and the legal system.
25. The Small Claims Court is designed by the Small Claims Court Act for the poor, the marginalised, the underprivileged and the indigent. In the political arena, the current reference to the individuals, in that social stratum in Kenya, is in such terms of mama mboga, mama fua, boda boda, jua kali, among others. That cohort of litigants has low or meagre resources, small means, and, possibly, low levels of education. The Small Claims Court is meant to avail to them an opportunity to have their matters handled with lesser formality, in a system that would allow them to navigate through the court process with relative ease, without being inhibited by the procedural maze that defines the processes at the Magistrate’s Court and the High Court, governed, as they are, by the Civil Procedure Act.
26. It is also meant to afford them a process that would dispose of their matters quickly and expeditiously, as, being peasant farmers, petty traders, artisans and unskilled labourers, living from hand-to-mouth, from what they earn from their hustles on a daily basis, they cannot afford to be off their work, for long periods of time, as they attend to court cases. People lose jobs, for frequently seeking permission to be away from work, to attend court case sessions. In any event, claims for small amounts, such as Kshs. 1,000.00, or Kshs. 5,000.00, or Kshs. 10,000.00, or even Kshs. 50,000.00 should not drag in court for a long time. The claimants would like to recover the amounts quickly, and use the amount recovered to meet their daily needs.
27. I doubt that the Small Claims Court, as currently operating, is aligned to the needs of mama mboga, jua kali and boda boda operators. It is drifting away from its original goal, and it is now more of a Magistrate’s Court, than the Small Claims Court, that it was designed to be. The Kenyan economy is largely subsistent, for the majority, eke a living at the fringes or margins, from a rural economy or a jua kali environment. The other term used frequently, to describe it, is the Kadogo economy. Manufacturers, and other commercial entities, are cognisant of that reality, and have tapped into that kadogo economy, on the realisation that most consumers are in that bracket, the subsistence economy, with an income that only allows them to purchase consumer products enough to be consumed the same day, hence they, the industrialists, have begun to package consumer products in small quantities, on that account. Put differently, consumer products, specifically packaged for this cohort of consumers, are faster moving compared with the rest. The Small Claims Court, as designed by the Small Claims Court Act, targets that group of consumers, the provisions of the Small Claims Act has them in mind, and the said court should adapt to suit their needs.
28. If I understand the concept of the Small Claims Court, as designed by the Small Claims Court Act, well, which I think I do, I see it is a sort of revival of a court similar to what was known, during the colonial era, as the Native Court, which mutated into the African Court, before it became the District Magistrate’s Court, before it was, eventually, either merged with the Magistrate’s Court, or abandoned altogether, depending on the perspective that one looks at it from.
29. Perhaps, there may be need to contextualise this. There is a tendency to overplay the ills of the colonial system, and, in the process, only see the forest, instead of the trees in it. There could be a sense, in which the colonial State was more alive to the justice needs of the poor and the marginalised, compared with what happened after independence, with respect to access to justice, for that cohort of litigants.
30. The colonial State did not have enough European judicial officials on the ground, in Kenya, to go round, for it to impose a unitary legal system, designed to apply to all within the borders. For that reason, it permitted a dual or plural legal system to apply, where different systems of law applied to different socio-cultural groups. For the Europeans, a legal system, founded on statute and the common law, was permitted, largely copied from what they were familiar with. The Asians were allowed, so far as their personal matters were concerned, to be governed by their customary law. Later statutes, that applied in the Indian sub-continent, were applied in Kenya, for their benefit. The Muslims were allowed to keep their Islamic law, and the Africans their customary law. The different systems were allowed to co-exist and develop separately. Efforts, to unify the systems, into one catering for all, were only undertaken after independence.
31. There were both merits and demerits, of that plural system. The principal merit was that it facilitated a gradual growth and development of the separate systems, in a manner that, perhaps, respected and accommodated the social and cultural perspectives of the different groups or communities. The principal demerit was that it was segregationist.
32. My interest is with what happened to the African. At the onset of colonialism, the African was subject, exclusively, to customary law, with respect to both civil and criminal matters, and justice was accessed through the structures that existed traditionally amongst the different African communities. After some time, following access to some level of formal Western education, conversion to Christianity and incorporation into the growing formal employment sector, a small African elite emerged, and the colonial State began to develop primitive structures, to cater for their affairs, but separate from the structures existing for the other racial groups.
33. The Native Court was one of some of those structures. It handled matters of a civil and criminal nature, founded on African customary law. It was run by Africans, working under supervision of the local colonial European administrators. The Native Court was not part of the colonial Judiciary. It was largely designed for the small African elite, for the rest of the general African populace remained subject to the traditional structures, ran through the clan system. It was not supervised by the High Court, but by the provincial administration. The Native Court was later renamed the African Court.
34. At independence, there was a unification or merger of all the four systems of justice. The agenda was to unify the country, by bringing all under one legal regime. That development led to the re-structuring of the African Court. It was renamed the District Magistrate’s Court, and it was incorporated into the formal judicial system, or the mainstream Judiciary, as the lowest level of the magistracy, ran by judicial officers who were not Advocates, and supervised by the Resident Magistrate’s Court.
35. For a long time, the formal Judiciary comprised of the High Court and Resident Magistrate’s Court only, presided over by Judges and Resident Magistrates, who were Advocates. The incorporation of the African Court into the system created the third category, which was re-named the District Magistrate’s Court, presided over by a lay Magistrate. The District Magistrate’s Court handled matters that were subject to customary law, with a limited criminal jurisdiction to try petty offenders and a limited civil jurisdiction covering petty claims.
36. The coming of independence saw exodus of a large part of the European and Asian elite from Kenya, largely to the United Kingdom. That group used to provide the bulk of the consumers of justice at the High Court and the Resident Magistrate’s Court. The vacuum they left was filled by the African elite, who began to have their matters handled by the Resident Magistrate’s Court and the High Court, leaving the District Magistrate’s Court to handle matters for the rural and urban poor. The processes, at the District Magistrate’s Court, were marked by simplicity and informality, while those at the other 2 levels were laden with complexity and formality.
37. The District Magistrate’s Court remained in place until the 1990s or the turn of the century, when it was quietly phased out. The phasing out was informed more by the fact that the country had produced enough Advocates, to take charge of the entire magistracy. The thinking was that there was no need to maintain a court manned by lay magistrates, given the abundance of qualified Advocates in the market. The phase out had nothing to do with lack of need for a court, at the lowest level, to handle matters for the persons at that level, the peasant farmer, the mama mboga, the mama fua, the jua kali and boda boda operator, among others. That left them with the Resident Magistrate’s Court, which, for a long time, had been a court for the elite. Advocates never used to appear at the African Court, and hardly appeared before its successor, the District Magistrate’s Court, but the Resident Magistrate’s Court was their playground. The phasing out of the District Magistrate’s Court left the poor and the marginalised, who comprise the bulk of the Kenyan population, orphaned. The courts that remained, after the phase out of the District Magistrate’s Court, were elitist, and out of tune with the needs of the poor, and beyond their reach.
38. The vacuum, left by the abandonment of the District Magistrate’s Court, was filled by alternative justice systems. Rather than move up to the Resident Magistrate’s Court and the High Court, the poor resorted to other mechanisms, such as the police and the Chiefs, and to this day, these entities, in the Executive, handle most of the disputes at the local level, using the model of the Native Court. The challenge with these systems is that there are no enforcement mechanisms, for the resolutions arrived at through these forums, given that these modes are extra-judicial. Invariably, the festering of the unresolved disputes manifest in criminal activity, usually taking the form of assault or homicide.
39. The colonial State operated a system of justice which accommodated all, but in a segregated fashion. The independent State attempted to end the segregation, through unification, but in the process created a gap, where the poor ended up being excluded from the formal justice system, and shunted to the fringes. My understanding is that the Small Claims Court is an attempt to address that gap. That endeavour is, however, being or has been thwarted or subverted.
40. The new Constitution recognised these challenges, hence the provision in Article 159 of the Constitution, which addresses the issues that often hinder access to justice by the vulnerable, that is procedural technicalities, lack of access to justice, failure by the courts to utilise alternatives to formal justice systems, among others. It is little wonder then that the principles that guide the Small Claims Court, according to the Small Claims Court Act, are drawn from Article 159(2) of the Constitution.
41. I have compared the Small Claims Court Act with the statutes establishing the other courts, that is to say the High Court Organisation and Administration Act, Cap 8C, Laws of Kenya; the Environment and Land Court Act, Cap 8D, Laws of Kenya; the Employment and Labour Relations Court Act, Cap 8E, Laws of Kenya; and the Magistrates’ Court Act, Cap 10, Laws of Kenya; all enacted after the promulgation of the Constitution in 2010, and noted that only the statutes for the High Court and the Magistrate’s Court refer to Article 159, and that only the Small Claims Court Act gives emphasis to the court ensuring “the timely disposal of all proceedings before the Court using the least expensive method; equal opportunity to access judicial services … ; fairness of process; and simplicity of procedure,” which is, no doubt, distilled from Article 159(2).
42. The decisions, in Crown Beverages Limited vs. MFI Documents Solutions Limited [2023] KEHC 58 (KLR) (Majanja, J), Biosystems Consultants vs. Nyali Links Arcade [2023] KEHC 21068 (Magare, J) and Lumumba vs. Gift Gas Limited [2023] KEHC 25998 (Majanja, J), signify a subtle shift in focus, from what the Small Claims Court should be, under the Small Claims Court Act, to what the elite would like it to look like. It represents are rejection of the Small Claims Court, as designed by the Small Claims Court Act, and of the notion of a special court to address the needs of the poor and the vulnerable. However, the reality of the existence of a dual or plural system of justice in Kenya persists, one for the elite and the other for the poor and the marginalised.
43. The Kenyan judicial system is alive to the reality of that pluralism. It does not present a pretty picture, for it reflects the State as an elite enterprise, to which the poor are either excluded, sidelined and marginalised, or they, the poor, have chosen to keep away from it, for it is alien to them, or it is not suited to their circumstances. The official judicial system is that established through the Constitution and the statutes, and it conduces to the circumstances of persons who are economically able. The poor have their disputes and issues resolved away from or outside of the official judicial system, using either non-judicial State agencies or non-State agencies.
44. The presumption is that the official Judiciary is accessible to all. The reality is that it is not. When the needs of the marginalised and the voiceless are not attended to, that category of Kenyans, who form the majority in the population, tend to go underground. The consequence of that often manifests itself in unsavoury ways, for they
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1. The matter before the trial court had been initiated by the respondent against the appellant. It was a claim for Kshs. 252,465.48, in respect of moneys lent, but not repaid. The appellant resisted the claim. He acknowledged the interaction with the respondent but denied ever being lent the money the subject of the dispute. He counterclaimed for Kshs. 350,543.00. A trial was conducted. Both parties testified. A judgement was delivered on 8th December 2023, in favour of the respondent.
2. The appellant was aggrieved; hence he filed this appeal, vide a memorandum of appeal, dated 25th January 2024. The grounds are that the trial court erred in finding that the agreement, the subject of the dispute, was enforceable; awarding double compensation; dismissing the counterclaim without considering the evidence; awarding general damages in a case of breach of contract; making an award of Kshs. 252,465.48 without basis; failing to find that the agreement had an arbitration clause; and filling in the gaps in the case.
3. Directions were taken, before the Judge, on an undisclosed date, for canvassing of the appeal by way of written submissions.
4. Both sides have complied, by filing their respective written submissions. The parties have argued around the trial court lacking jurisdiction, in view of the arbitration clause in the subject agreement; failing to consider all the facts presented; and awarding general damages for breach of contract.
5. Before I consider the appeal, on its merits, if at all I will get to do so, let me first deal with an issue that the parties have not raised, which did not arise at trial, but which ought to be at the core of this matter. That is whether the trial court had jurisdiction, as of 8th December 2023, when it determined the matter before it. For if there was no jurisdiction, as of 8th December 2023, the appeal herein would have no foundation, for it would be based on an invalid judgement.
6. The matter before the trial court was initiated and determined as a small claim, under the Small Claims Court Act, Cap 10 A, Laws of Kenya. The judicial officer, or officers, who handled the matter, presided over a Small Claims Court, established under the Small Claims Court Act.
7. The jurisdiction of the Small Claims Court is set out in Parts III and IV of the Small Claims Court Act. Part III sets out the geographical jurisdiction of the court, at section 11; jurisdiction with respect to the nature of the claims handleable by the court, at section 12(1); and the pecuniary jurisdiction, at section 12(3). Part IV sets out the procedural jurisdiction of the court. It covers such areas as, control of its own procedures, at section 17; adoption of alternative resolution mechanisms, at section 18; permitting representation of the parties, at section 20; entry of default judgement, at section 28; proceeding by electronic means, at section 30; consolidation of claims, at section 31; exclusion of strict rules of evidence, at section 32; expeditious disposal of matters, at section 34; and orders that the court may make, at section 36.
8. The principal features of the Small Claims Court are the key jurisdiction areas around the value of the claim, the duration within which the claims should be resolved, the nature of the claims themselves and relaxation of the rules of evidence and procedure. It is these jurisdictional features that ought to mark what the Small Claims Court should be, that is, a court designed to handle small claims, with expedition, and, to achieve that, certain rules of evidence and procedure must be relaxed, while others must be tightened.
9. The object, essence and character of the court, imagined by the Small Claims Court Act, comes out in section 3 of the Act, through what is legislated as the “guiding principles.” Section 3(1) envisages a court anchored on the principles of judicial authority prescribed under Article 159(2) of the Constitution; while section 3(2) requires the court to adopt procedures which ensure timely disposal of proceedings, use of the least expensive methods, equal opportunity of access to justice for all, fairness in the process and simplicity of procedure.
10. The said provision, section 3, states as follows:
“3. Guiding principles
(1) In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution.
(2)The parties and their duly authorized representatives, as the case may be, shall assist the Court to facilitate the observance of the guiding principles set out in this section, to that effect, to participate in the proceedings of the Court and to comply with directions and orders of that Court.
(3) Without prejudice to the generality of subsection (1) the Court shall adopt such procedures as the Court deems appropriate to ensure—
(a) the timely disposal of all proceedings before the Court using the least expensive method;
(b) equal opportunity to access judicial services under this Act;
(c) fairness of process; and
(d) simplicity of procedure.”
11. Article 159(2) is about justice being done to all irrespective of status, not being delayed, promotion of alternative modes of dispute resolution, eschewing of procedural technicalities and promotion of the purposes of the Constitution. The principal themes, captured in section 3 of the Small Claims Court Act, are access to justice for all irrespective of status, expeditious disposal of matters, alternative modes of dispute resolution, and avoidance of technicalities of procedure.
12. For avoidance of doubt, Article 159(2) of the Constitution provides:
“159. Judicial authority
(1) …
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted …;
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.”
13. With respect to access to justice for all, focus is on small claims. People of small means also tend to have small claims. The court, envisaged by the Small Claims Court Act, is one that would be accessible to persons in that social stratum. The Small Claims Court Act seeks to devolve the courts to the lowest level, in terms of claims of very low economic value. There is a coincidence of low social stratum and low economic means, on the one hand, and low standards of education on the other. Individuals, who have low formal education, would, often, find navigating around the technicalities, associated with the rules of procedure and evidence in the court, inhibitive, and such technicalities limit their access to justice. The Small Claims Court Act seeks to ease access to the courts and the justice system for such persons, by giving them a court which eschews technicalities of procedure, and which has jurisdiction to fashion its own rules of procedure, to suit the needs of its class of litigants, tailored to ease their access to justice.
14. Emphasis is given to simplicity of procedures and avoidance of procedural technicalities. Simplification of procedures and relaxation of the rules of evidence are meant to make the proceedings of the court inexpensive and the court more accessible, for the cohort of litigants, for whom the court, designed by the Small Claims Court Act, is meant. Delays in disposal translates to expense for those with limited resources, hence the need to have the matters disposed of as soon as possible, to the extent of them being heard and decided the same day. There is also encouragement, to the court, to adopt modes of dispute resolution that that cohort is familiar with.
15. The provisions of the Small Claims Court Act should be seen in that light, of a court that handles small claims, speedily, using the simplest of procedures. The jurisdiction of the Small Claims Court is exercised within those parameters: small claims, simple procedure, and determination within very short timespans. The pecuniary jurisdiction is set at a maximum of Kshs. 1,000,000.00. The period within which the jurisdiction is to be exercised is set at 60 days. Jurisdiction is granted to relax the rules of evidence and procedure. It is these elements that ought to characterize the court envisaged by the Small Claims Court Act. They create a special jurisdiction for that court.
16. From the appeals that have come my way, from that court, the Small Claims Court, the jurisdiction relating to that court, for handling claims whose value does not go beyond Kshs. 1,000,000.00, is being strictly adhered to. However, I doubt that the other jurisdictions are being respected. The one that is obviously least observed is that relating to the 60-day rule, for determining the claims. In almost all the appeals that I have handled so far, determinations were made outside the 60-days jurisdiction, prescribed by section 34(1) of the Small Claims Court Act. So, there is no expeditious disposal of the matters. More crucially, the determinations, made outside the 60 days, are without jurisdiction, and invalid, therefore.
17. To my understanding, the non-compliance with the 60-day rule has something to do with the Small Claims Court not exercising the jurisdiction granted to it by the Act, to relax the rules of evidence and procedure, and to have control of its own procedures. To my thinking, relaxation of the rules of evidence and having control of its procedures would point to the said court having jurisdiction to fashion its own procedures, to suit the unique needs of the targeted litigants, to facilitate disposal of the claims within 60-days. The Small Claims Court Act gives the Small Claims Court a broad latitude and discretion, with respect to how it handles evidence and procedure, to enable it to accommodate its poor clientele, and dispose of their claims in the shortest time possible. The provisions, in sections 3(3) and 17 of the Small Claims Court Act, about the Small Claims Court having control over its own procedures, is not dissimilar to Article 163(8) of the Constitution, with respect to the Supreme Court making rules for exercise of its jurisdiction, no doubt informed by the very strict timelines, under Article 140 of the Constitution, for disposal of the Presidential election dispute.
18. The sense I get, with respect, is that the Small Claims Court project is failing. As currently operating, the Small Claims Court, does not, or no longer, meets or aligns to the objectives for which it was set up by the Small Claims Court Act. It is no longer a Small Claims Court defined by simplicity of procedure, and the desire to obtain expeditious disposal of claims. The trajectory, that it has taken, has brought it at par with the Magistrate Court and the High Court, in terms of operating under a framework of procedure defined by the Civil Procedure Act, Cap 21, Laws of Kenya, and the Civil Procedure Rules, instead of the Small Claims Court Act, upon which it ought to be anchored.
19. The High Court, as the superior court that supervises the Small Claims Court, by dint of Article 165(5)(7) of the Constitution, has not helped that court. The objective, of expeditious disposal of claims, has been adulterated by the construction to which the High Court has given to section 34(1) of the Small Claims Court Act. Section 34(1) limits the jurisdiction of the Small Claims Court, during which it should determine claims, to 60 days. Put differently, the Small Claims Court Act has conferred upon the Small Claims Court a 60-day jurisdiction only, to hear and determine the claims that it is seized of. That provision is attuned to the spirit and the overall objective of the Small Claims Court Act. It is a conscious and deliberate provision, for the promotion of the objects of the Act, as set out in section 3.
20. To facilitate its implementation of the 60-day rule, the provision itself, that is section 34, prescribes ways of achieving that objective. It decrees that matters should be heard and determined the same day. The Small Claims Court should take evidence and deliver a judgement or make a determination the same day. Where that cannot work, it prescribes that the court adopts the strategy of hearing the matter on a day-to-day basis until it completes it. Judgements or determinations, where they cannot be delivered or made on the day hearing is completed, should be delivered at least within 3 days of completion of the hearing. Adjournments are discouraged, and should be allowed only in exceptional circumstances, which are defined. In any event, only a maximum of 3 adjournments is allowed.
21. Contrary to the stated objective of the Small Claims Court Act, the High Court has, in such decisions as Crown Beverages Limited vs. MFI Documents Solutions Limited [2023] KEHC 58 (KLR) (Majanja, J), Biosystems Consultants vs. Nyali Links Arcade [2023] KEHC 21068 (Magare, J) and Lumumba vs. Gift Gas Limited [2023] KEHC 25998 (Majanja, J), by judicial craft, removed that jurisdiction, and it has given to the Small Claims Court an open or unlimited jurisdiction, timewise, within which to determine these matters, which has brought it at par with the Magistrate’s Court and the High Court, with respect to the timelines that those other 2 courts operate under, while handling their matters, as prescribed under the Civil Procedure Act and the Civil Procedure Rules.
22. The Rules developed to operationalise the Small Claims Court Act have not helped either. The Small Claims Court Rules are largely a replica of the Civil Procedure Rules. They have reproduced the complexities associated with the processes at the Magistrate’s Court and the High Court, which often hinder access to justice for the poor and the underprivileged. The Small Claims Court Act sought to sidestep those complexities by establishing a special court, with a special jurisdiction, with a less stringent procedural framework compared to that under the Civil Procedure Act and the Civil Procedure Rules, which governs proceedings at the Magistrate’s Court and the High Court.
23. Part of what complicates the position of the Small Claims Court could also be the judicial officers who preside over that court. The design, by the Small Claims Court Act, is that of a court to be presided over by Adjudicators, but not Magistrates, as the Small Claims Court is a distinct court from the Magistrate’s Court. However, the Chief Justice has power, under the Small Claims Court Act, to appoint other judicial officers, such as Magistrates, to sit at the Small Claims Court as Adjudicators. At present, no Adjudicators have been appointed, and the Small Claims Court is being presided over and run by Magistrates, presumably nominated to do so by the Chief Justice. The Magistrates, sitting as Adjudicators, also sit as Magistrates, over matters initiated under the Civil Procedure Act and the Civil Procedure Rules.
24. Such magistrates exercise jurisdiction under the Small Claims Court Act, when handling Small Claims Court work, and under the Magistrates’ Court Act, and the Civil Procedure Act and the Civil Procedure Rules, when handling Magistrate’s Court work. It is something doable, but with the potential of undermining the objectives of the Small Claims Court Act, for there could be a real risk that the Magistrates could end up handling the Small Claims Court matters as if they are handling matters subject to the Civil Procedure Act, rather than the Small Claims Court Act. There could be an unconscious challenge, with juggling or transitioning from sitting as Adjudicator to sitting as Magistrate. It should not be forgotten that these are entry level positions, where young or newly enrolled Advocates are taking baby steps in the profession, and struggling to find their footing, in terms of making sense of the business of the legal profession, in the context of the workings of the Judiciary and the legal system.
25. The Small Claims Court is designed by the Small Claims Court Act for the poor, the marginalised, the underprivileged and the indigent. In the political arena, the current reference to the individuals, in that social stratum in Kenya, is in such terms of mama mboga, mama fua, boda boda, jua kali, among others. That cohort of litigants has low or meagre resources, small means, and, possibly, low levels of education. The Small Claims Court is meant to avail to them an opportunity to have their matters handled with lesser formality, in a system that would allow them to navigate through the court process with relative ease, without being inhibited by the procedural maze that defines the processes at the Magistrate’s Court and the High Court, governed, as they are, by the Civil Procedure Act.
26. It is also meant to afford them a process that would dispose of their matters quickly and expeditiously, as, being peasant farmers, petty traders, artisans and unskilled labourers, living from hand-to-mouth, from what they earn from their hustles on a daily basis, they cannot afford to be off their work, for long periods of time, as they attend to court cases. People lose jobs, for frequently seeking permission to be away from work, to attend court case sessions. In any event, claims for small amounts, such as Kshs. 1,000.00, or Kshs. 5,000.00, or Kshs. 10,000.00, or even Kshs. 50,000.00 should not drag in court for a long time. The claimants would like to recover the amounts quickly, and use the amount recovered to meet their daily needs.
27. I doubt that the Small Claims Court, as currently operating, is aligned to the needs of mama mboga, jua kali and boda boda operators. It is drifting away from its original goal, and it is now more of a Magistrate’s Court, than the Small Claims Court, that it was designed to be. The Kenyan economy is largely subsistent, for the majority, eke a living at the fringes or margins, from a rural economy or a jua kali environment. The other term used frequently, to describe it, is the Kadogo economy. Manufacturers, and other commercial entities, are cognisant of that reality, and have tapped into that kadogo economy, on the realisation that most consumers are in that bracket, the subsistence economy, with an income that only allows them to purchase consumer products enough to be consumed the same day, hence they, the industrialists, have begun to package consumer products in small quantities, on that account. Put differently, consumer products, specifically packaged for this cohort of consumers, are faster moving compared with the rest. The Small Claims Court, as designed by the Small Claims Court Act, targets that group of consumers, the provisions of the Small Claims Act has them in mind, and the said court should adapt to suit their needs.
28. If I understand the concept of the Small Claims Court, as designed by the Small Claims Court Act, well, which I think I do, I see it is a sort of revival of a court similar to what was known, during the colonial era, as the Native Court, which mutated into the African Court, before it became the District Magistrate’s Court, before it was, eventually, either merged with the Magistrate’s Court, or abandoned altogether, depending on the perspective that one looks at it from.
29. Perhaps, there may be need to contextualise this. There is a tendency to overplay the ills of the colonial system, and, in the process, only see the forest, instead of the trees in it. There could be a sense, in which the colonial State was more alive to the justice needs of the poor and the marginalised, compared with what happened after independence, with respect to access to justice, for that cohort of litigants.
30. The colonial State did not have enough European judicial officials on the ground, in Kenya, to go round, for it to impose a unitary legal system, designed to apply to all within the borders. For that reason, it permitted a dual or plural legal system to apply, where different systems of law applied to different socio-cultural groups. For the Europeans, a legal system, founded on statute and the common law, was permitted, largely copied from what they were familiar with. The Asians were allowed, so far as their personal matters were concerned, to be governed by their customary law. Later statutes, that applied in the Indian sub-continent, were applied in Kenya, for their benefit. The Muslims were allowed to keep their Islamic law, and the Africans their customary law. The different systems were allowed to co-exist and develop separately. Efforts, to unify the systems, into one catering for all, were only undertaken after independence.
31. There were both merits and demerits, of that plural system. The principal merit was that it facilitated a gradual growth and development of the separate systems, in a manner that, perhaps, respected and accommodated the social and cultural perspectives of the different groups or communities. The principal demerit was that it was segregationist.
32. My interest is with what happened to the African. At the onset of colonialism, the African was subject, exclusively, to customary law, with respect to both civil and criminal matters, and justice was accessed through the structures that existed traditionally amongst the different African communities. After some time, following access to some level of formal Western education, conversion to Christianity and incorporation into the growing formal employment sector, a small African elite emerged, and the colonial State began to develop primitive structures, to cater for their affairs, but separate from the structures existing for the other racial groups.
33. The Native Court was one of some of those structures. It handled matters of a civil and criminal nature, founded on African customary law. It was run by Africans, working under supervision of the local colonial European administrators. The Native Court was not part of the colonial Judiciary. It was largely designed for the small African elite, for the rest of the general African populace remained subject to the traditional structures, ran through the clan system. It was not supervised by the High Court, but by the provincial administration. The Native Court was later renamed the African Court.
34. At independence, there was a unification or merger of all the four systems of justice. The agenda was to unify the country, by bringing all under one legal regime. That development led to the re-structuring of the African Court. It was renamed the District Magistrate’s Court, and it was incorporated into the formal judicial system, or the mainstream Judiciary, as the lowest level of the magistracy, ran by judicial officers who were not Advocates, and supervised by the Resident Magistrate’s Court.
35. For a long time, the formal Judiciary comprised of the High Court and Resident Magistrate’s Court only, presided over by Judges and Resident Magistrates, who were Advocates. The incorporation of the African Court into the system created the third category, which was re-named the District Magistrate’s Court, presided over by a lay Magistrate. The District Magistrate’s Court handled matters that were subject to customary law, with a limited criminal jurisdiction to try petty offenders and a limited civil jurisdiction covering petty claims.
36. The coming of independence saw exodus of a large part of the European and Asian elite from Kenya, largely to the United Kingdom. That group used to provide the bulk of the consumers of justice at the High Court and the Resident Magistrate’s Court. The vacuum they left was filled by the African elite, who began to have their matters handled by the Resident Magistrate’s Court and the High Court, leaving the District Magistrate’s Court to handle matters for the rural and urban poor. The processes, at the District Magistrate’s Court, were marked by simplicity and informality, while those at the other 2 levels were laden with complexity and formality.
37. The District Magistrate’s Court remained in place until the 1990s or the turn of the century, when it was quietly phased out. The phasing out was informed more by the fact that the country had produced enough Advocates, to take charge of the entire magistracy. The thinking was that there was no need to maintain a court manned by lay magistrates, given the abundance of qualified Advocates in the market. The phase out had nothing to do with lack of need for a court, at the lowest level, to handle matters for the persons at that level, the peasant farmer, the mama mboga, the mama fua, the jua kali and boda boda operator, among others. That left them with the Resident Magistrate’s Court, which, for a long time, had been a court for the elite. Advocates never used to appear at the African Court, and hardly appeared before its successor, the District Magistrate’s Court, but the Resident Magistrate’s Court was their playground. The phasing out of the District Magistrate’s Court left the poor and the marginalised, who comprise the bulk of the Kenyan population, orphaned. The courts that remained, after the phase out of the District Magistrate’s Court, were elitist, and out of tune with the needs of the poor, and beyond their reach.
38. The vacuum, left by the abandonment of the District Magistrate’s Court, was filled by alternative justice systems. Rather than move up to the Resident Magistrate’s Court and the High Court, the poor resorted to other mechanisms, such as the police and the Chiefs, and to this day, these entities, in the Executive, handle most of the disputes at the local level, using the model of the Native Court. The challenge with these systems is that there are no enforcement mechanisms, for the resolutions arrived at through these forums, given that these modes are extra-judicial. Invariably, the festering of the unresolved disputes manifest in criminal activity, usually taking the form of assault or homicide.
39. The colonial State operated a system of justice which accommodated all, but in a segregated fashion. The independent State attempted to end the segregation, through unification, but in the process created a gap, where the poor ended up being excluded from the formal justice system, and shunted to the fringes. My understanding is that the Small Claims Court is an attempt to address that gap. That endeavour is, however, being or has been thwarted or subverted.
40. The new Constitution recognised these challenges, hence the provision in Article 159 of the Constitution, which addresses the issues that often hinder access to justice by the vulnerable, that is procedural technicalities, lack of access to justice, failure by the courts to utilise alternatives to formal justice systems, among others. It is little wonder then that the principles that guide the Small Claims Court, according to the Small Claims Court Act, are drawn from Article 159(2) of the Constitution.
41. I have compared the Small Claims Court Act with the statutes establishing the other courts, that is to say the High Court Organisation and Administration Act, Cap 8C, Laws of Kenya; the Environment and Land Court Act, Cap 8D, Laws of Kenya; the Employment and Labour Relations Court Act, Cap 8E, Laws of Kenya; and the Magistrates’ Court Act, Cap 10, Laws of Kenya; all enacted after the promulgation of the Constitution in 2010, and noted that only the statutes for the High Court and the Magistrate’s Court refer to Article 159, and that only the Small Claims Court Act gives emphasis to the court ensuring “the timely disposal of all proceedings before the Court using the least expensive method; equal opportunity to access judicial services … ; fairness of process; and simplicity of procedure,” which is, no doubt, distilled from Article 159(2).
42. The decisions, in Crown Beverages Limited vs. MFI Documents Solutions Limited [2023] KEHC 58 (KLR) (Majanja, J), Biosystems Consultants vs. Nyali Links Arcade [2023] KEHC 21068 (Magare, J) and Lumumba vs. Gift Gas Limited [2023] KEHC 25998 (Majanja, J), signify a subtle shift in focus, from what the Small Claims Court should be, under the Small Claims Court Act, to what the elite would like it to look like. It represents are rejection of the Small Claims Court, as designed by the Small Claims Court Act, and of the notion of a special court to address the needs of the poor and the vulnerable. However, the reality of the existence of a dual or plural system of justice in Kenya persists, one for the elite and the other for the poor and the marginalised.
43. The Kenyan judicial system is alive to the reality of that pluralism. It does not present a pretty picture, for it reflects the State as an elite enterprise, to which the poor are either excluded, sidelined and marginalised, or they, the poor, have chosen to keep away from it, for it is alien to them, or it is not suited to their circumstances. The official judicial system is that established through the Constitution and the statutes, and it conduces to the circumstances of persons who are economically able. The poor have their disputes and issues resolved away from or outside of the official judicial system, using either non-judicial State agencies or non-State agencies.
44. The presumption is that the official Judiciary is accessible to all. The reality is that it is not. When the needs of the marginalised and the voiceless are not attended to, that category of Kenyans, who form the majority in the population, tend to go underground. The consequence of that often manifests itself in unsavoury ways, for they
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