Justice Musyoka says Small Claims Court project is failing and unable to live up to its key objectives
What began as a modest debt dispute between two friends has escalated into a landmark legal contest that could nullify hundreds of Small Claims Court rulings—or deepen uncertainty over their validity.
The controversy stems from growing disagreements among High Court judges on the fate of judgments issued beyond the 60-day statutory deadline.
Recently, Justice William Musyoka sharply differed with his peers by stating that a judgment of the Small Claims Court delivered after the lapse of the statutory timeline is null and invalid, hence unenforceable.
According to Justice Musyoka, the Small Claims Court project is failing and unable to live up to its key objectives, which are to provide a quick, affordable and accessible forum for resolving minor civil and commercial disputes.
“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, meet or align with 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,” said Justice Musyoka in a recent ruling.
One of the victims of the alleged failure by the Small Claims Court to comply with the strict 60-day time limit is Ms Lynda Mwisiwa, who initiated a case at the Milimani Law Courts in Nairobi in June 2023, claiming Sh252,000 from Mr Tim Ndaguri.
She claimed that she had lent him the amount but he had failed to repay, forcing her to seek redress from the court. In the same case, Mr Ndaguri filed a counter-claim seeking Sh350,000 from Ms Mwisiwa.
The court’s adjudicator delivered a late judgment on December 8, 2023, in favour of Ms Mwisiwa.
Non-compliance
Mr Ndaguri was dissatisfied and lodged an appeal at the High Court, where Justice Musyoka said the lower court’s decision was in fact null and invalid for non-compliance with the 60-day timeline. The judge told Ms Mwisiwa that she had obtained a null judgment against Mr Ndaguri.
Justice Musyoka subsequently struck out the appeal as it was founded on an invalid and null decision, marking the end of the road for both claimants.
Records show that, since the statement of claim was filed on June 6, 2023, and going by the statutory timeline of 60 days prescribed in section 34(1) of the Small Claims Court Act, the determination by the trial court should have been on or about August 5, 2023.
“Judgment was delivered on December 8, 2023, way outside the 60 days. Indeed, delivery came 185 days outside the 60-day deadline. The proceedings conducted after August 5, 2023, were without jurisdiction, and that made the determination of December 8, 2023, null and void,” said Justice Musyoka.
Milimani Law Courts in Nairobi.
According to Justice Musyoka, ignoring compliance with the statutory timeline points to a systematic rejection of the Small Claims Court and a reversal to Kenya’s traditional judicial system, which he argues favours the elite.
“I doubt that the Small Claims Court, as currently operating, is aligned to the needs of mama mboga, jua kali artisans 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 it was designed to be,” Justice Musyola said.
“The Kenyan economy is largely subsistent. For the majority, they eke out a living on the fringes or margins — within a rural economy or a jua kali environment. The other term used frequently to describe it is the Kadogo economy,” he added.
He declined to follow the previous holding of his peers at the High Court, Justices Kizito Magare and the late David Majanja, who had ruled that statutory provisions in relation to judgment delivery within a specified timeline are meant to be a guideline to strive for but not a strict rule.
Justice Kizito, in case law, held that the 60 days required for the Small Claims Court to determine a dispute were aspirational, as the Small Claims Court Act did not provide any penal consequences for breach and non-compliance with the said timeline.
‘Good reason’
“The purpose of the Small Claims Court Act is to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result is that balancing the two may result at times in overshooting the 60 days. The 60 days do not have penal consequences for good reason. They are aspirational. This is part of having access to justice over amounts that need not be in the normal system,” said Justice Magare.
The late Justice Majanja, while addressing the same issue, said:
“Although section 34(2) of the Small Claims Court Act is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method.”
“The provision as to delivery of judgment is meant to be directory and not mandatory, as it is not the intention of the Small Claims Court Act to invalidate any proceedings that violate the statutory timelines.”
But Justice Musyoka disagreed.
He stated that such holdings 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 a 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,” argued Justice Musyoka.
He said delays in disposal translate into expense for those with limited resources, hence the need to have matters disposed of as soon as possible, ideally being heard and decided the same day.
Justice Musyoka argued that the SCC is failing to meet its objectives, citing delays and systemic issues.
The Small Claims Court was rolled out in 2016 to handle small claims speedily, using the simplest of procedures because, according to Justice Musyoka, "people of small means also tend to have small claims."
The monetary jurisdiction of SCC is set at a maximum of Sh1 million.
Justice Musyoka said the Small Claims Court was meant to handle a specific class of work, dispersed to it from the Magistrate’s Court, and that work was designed to be done in a different way, within a different span of time, by a different outfit.
“The special status of the Small Claims Court should, therefore, be respected, honoured, and protected.”
According to the judge, the well-to-do usually have no issues with access to justice because they have the resources to facilitate filing cases in whichever court they wish.
Significant issues
“They have the wherewithal to hire advocates to act for them in those matters. They also usually possess adequate education, enabling them to argue the cases in the courts personally when, for whatever reason, they choose not to rely on advocates. The concern of this cohort would not be with being able to access the courts, but rather in having their disputes disposed of expeditiously,” he said.
He maintained that the poor face significant issues with access to justice and technicalities of procedure.
“Technicalities of procedure are, in fact, an aspect of the problem of access to justice for this class of litigants. In the first place, the courts could be located too far from them, accessible only at considerable expense,” said Justice Musyoka.
There are at least 40 Small Claims Court stations countrywide.
In the year ended June 2024, the Small Claims Court had a backlog of 5,019 cases, up slightly from 5,012 in the previous year.
According to the “State of the Judiciary” report, a total of 41,524 cases were filed at the Small Claims Court during the period, and the adjudicators resolved 33,527.
During the reporting period, the high and rising case load per adjudicator at the Small Claims Court, leading to burnout and non-compliance with statutory timelines, was flagged as one of the emerging issues affecting the court.
Another emerging issue was the high number of appeals at the High Court from the Small Claims Court.
With rising case loads and diverging judicial interpretations, the Small Claims Court’s ability to serve its original purpose remains in question—prompting calls for reforms to address delays and accessibility.
