How to Get Your Small Debts Paid Through Court Process

  • undated image of Judiciary entrance of the Supreme Court building in Nairobi, Kenya
    A file image of Judiciary entrance of the Supreme Court building in Nairobi, Kenya
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  • Over the years, Kenyans have raised concerns over the long and tedious legal processes they have to follow to get their debts paid.

    A majority of them argue that they cannot seek legal redress for small amounts of money owed to them, arguing that justice ends up being elusive.

    However, to address this, the Judiciary under the leadership of Chief Justice Martha Karambu Koome has rolled out an ambitious plan to establish various small claims courts under the Small Claims Act 2016.

    Lady Justice Martha Koome while she delivered judgments and rulings of the Court of Appeal via Skype on April 24, 2020.
    Lady Justice Martha Koome while she delivered judgments and rulings of the Court of Appeal via Skype on April 24, 2020.
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    What is a Small Claims Court?

    This is a subordinate court in the structure of the court system in Kenya with a monetary jurisdiction of matters not exceeding Ksh1 million. The establishment of the courts is part of an initiative to enhance the ease of doing business in the country. 

    Jurisdiction

    The court has jurisdiction over civil 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 and damage caused to any property or for movable property, compensation for personal injuries and set off and counterclaim under any contract; whose subject matter does not exceed Ksh1 million.

    Exclusion

    Small Claims Courts are excluded from handling: all other civil claims not enumerated under Section 12 (1) of the Small Claims Act 2016. Some of these may include; claims whose cause of action is founded upon defamation, libel, slander, malicious prosecution, divorce or dispute over a title to or possession of land or a matter concerning employment and labour relations.

    Who may institute a claim?

    A natural person or persons, as well as body corporates, may institute an action in court. A person lodging a claim at the Small Claims Court is referred to as a claimant whilst a person being sued is referred to as the respondent.

    How to institute a claim at the Small Claims Court

    As per the provision of section 23 of the Small Claims Court Act, all claims filed in court should be by way of a statement of claim in the prescribed form SCC 1. The claim form is available on the Judiciary website.

    The claimant may at the time of filing attach any supporting documents and statements.

    Do complainants pay fees?

    At the moment, members of the public do not pay any fees for commercial cases whose monetary value is below Ksh1 million.

    As per the Legal Notice No. 59 issued under the Public Finance Management Act, the Cabinet Secretary for National Treasury and Planning waived court fees for commercial cases whose monetary value does not exceed Ksh1 million for a period of 2 years from April 1, 2020.
     
    Other civil cases filed in the court may attract a nominal filing fee charged at not more than Ksh1,000.

    Lawyers

    A claimant may choose to prosecute his/ her claim in person or through a representative who may be an advocate.

    Serving the respondent

    A claimant is required to serve the respondent to enable them to respond to the claim. 

    The claimant is required to serve the respondent with a copy of the statement of claim as well as any supporting documents in support of the claim and file a certificate of service to that effect.

    The respondent is required to respond within 15 days of service of the claim by the claimant.

    The respondent may;

    1. Satisfy the claim directly to the claimant and the claimant should report this to the court

    2. Admit whole or any part of the claim and the Court shall record the admission as an order of the Court in favour of the claimant. Where there is part admission, the court may proceed to determine any part of the claim that is denied.

    Limitations

    A claimant cannot file a matter at the Small Claims Court if similar proceedings are pending before another Court. A party may apply to withdraw a matter before another court and have it filed at the Small Claims Court or the matter may be transferred by a higher court to SCC.

    Hearing and judgement

    In line with Section 34 (2) of the Small Claims Court Act, all judgements shall be delivered on the same day and in any event, no later than 3 days from the date of hearing.

    A file image of the judiciary
    A file image of the judiciary
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    Note, that there is a provision for Alternative Dispute Resolution (ADR) mechanisms in the Small Claims Court. Under section 18 of the SCC Act, Court may with the consent of the parties adopt ADR mechanisms and the agreement reached shall be recorded as a binding order of the Court

    A person aggrieved by the decision or an order of the Court may appeal that decision or order to the High Court on matters of law and such appeal shall be final.