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Lawyer petitions court over Judiciary’s failure to establish small claims courts nationwide
A lawyer is suing Chief Justice Martha Koome for allegedly violating the constitution by establishing only 39 Small Claims Courts, despite the statutory requirement being 337.
A lawyer has petitioned the High Court to compel Chief Justice Martha Koome to accelerate the establishment of small claims courts nationwide, alleging a violation of statutory obligations under the Small Claims Court Act, 2016.
Mr Sunday Memba's court filings reveal that only 39 such courts currently operate against a statutory requirement of 337, leaving 298 sub-counties without access to the specialised justice system meant to handle claims under Sh1 million.
"The Respondent (Chief Justice) has failed to establish Small Claims Courts in every sub-county as mandated by Section 11 of the Act," states the petition filed at the High Court. "This denies citizens their constitutional right to accessible justice."
The Act, which came into force on April 21, 2016, required the Judiciary to establish a Small Claims court in every sub-county in the country. The petitioner’s analysis of Judiciary records shows the current coverage represents just 11.5 percent of the target, nine years after the law's implementation.
Lawyer Memba says that at the current pace of about four courts annually, full implementation would take until 2097, seventy-two more years.
The petition highlights geographic disparities, saying some sub-counties like Naivasha enjoy dedicated access while counties like Machakos and Makueni share one court.
Chief Justice Martha Koome speaks during the swearing-in of the new IEBC Commissioners at the Supreme Court in Nairobi on July 11, 2025.
Further, Mr Memba faults the Chief Justice for gazetting the small claims court at the county level instead of the sub-county as provided in the law.
“By conferring jurisdiction upon entire counties, multiple counties, or isolated sub-counties, the Respondent (Chief Justice) has in effect replaced the statutory unit of access, the sub-county, with larger and uneven territorial units (Counties),” he argues.
He says the CJ has, in effect, replaced the statutory unit of access with larger or inconsistent territorial units. This defeats the legislative intent that each sub-county has direct access to a Small Claims Court, he maintains.
Legal experts note the small claims courts' rollout faces practical challenges as it would require massive budgetary and human resources.
The specialised courts were designed to decongest magistrates' courts, provide affordable, speedy justice, serve SMEs and ordinary citizens and use simplified procedures of litigation.
The petitioner seeks a declaration of constitutional violation, a six-month compliance timetable, appointment of part-time adjudicators and sub-county level implementation.
“The Petitioner prays that this court be pleased to grant an order directing the respondent to utilize the provisions of Section 6(6) of the Act to appoint qualified part-time adjudicators, drawn from practising advocates of good standing, as a means of expanding judicial capacity and accelerating the establishment and functioning of Small Claims Courts,” reads the petition.
He has also applied for an order compelling the Chief Justice to publish in the Kenya Gazette and on the Judiciary’s public platforms a national roll-out plan for the establishment of Small Claims Courts in all sub-counties.
This case comes amid ongoing tensions between the Judiciary and Parliament over budget cuts exceeding Sh3 billion last fiscal year.
However, the petitioner says Parliament has equipped the Chief Justice with administrative and resource management tools to fulfil the obligations.
“Section 6(6) of the Act expressly empowers the Chief Justice to appoint part-time adjudicators for the efficient and economical administration of justice,” says Mr Memba.
“That provision allows the utilisation of competent members of the Bar many of whom are admitted to practice each year by the Respondent herself to serve as part-time adjudicators and thereby expand judicial capacity without imposing significant budgetary strain,” he argues.
Citing Article 48 of the Constitution, which guarantees the right of access to justice and obliges the State to ensure that no barrier, whether financial or geographic, impedes the enjoyment of that right, the lawyer says the establishment of Small Claims Courts was one legislative mechanism through which Parliament sought to operationalise that constitutional guarantee.
The Chief Justice is yet to file her response in court to the petition.
