The Hon. Chief Justice Emeritus, Hon Justice Willy Mutunga's Vision; Judiciary Transformation Framework (JTF) 2012-2016 set the Judiciary on a reform trajectory. In the vision, enhancing access to justice was identified as a critical area for reform and the operationalization of the Small Claims Court was viewed as key in achieving this.

The operationalization of the Court in April, 2021 heralded a new dawn in the administration of justice in Kenya as it actualized the judiciary's long held vision of making dispensation of justice more people centred. The Hon. Chief Justice Martha Koome has in her vision of Social Transformation Through Access to Justice underscored the need to widen the access to justice space to the excluded and mainly marginalized sections of the citizenry through the adoption of the multi door approach to justice by way of use of avenues such as Alternative Dispute Resolutions Mechanisms (ADR), Tribunals, Alternative Justice Systems (AJS) and the roll out of the Small Claims Court to strategic and high impact locations.

World over, weak judicial systems characterized by huge case backlogs, complex legal procedures, low clearance rates, high court fees and delays in obtaining judgments constitute barriers to access to justice. Due to the already existing imbalance in obtaining judicial services, the vulnerable, marginalized, unrepresented, Micro, Small and Medium sized enterprises (MSMEs) are the most affected by such weaknesses in the justice system.

From a business angle, these barriers further form obstacles to a healthy business climate and incentivize businesses and litigants to solve their disputes outside the realms of the legal system. It was therefore critical that targeted result focused interventions be put in place; such as the operationalization of the Small Claims Court amongst other key interventions to mitigate these barriers which have the ability to overall limit access to justice and affect the country's business environment.

The underpinning logic behind the establishment and subsequent operationalization of the Small Claims court was to enhance the access to and expeditious delivery of justice and to further provide a platform within the justice system where civil and commercial disputes whose value does not exceed one million shillings are dealt with in a simple, efficient and cost-efficient manner.

The Court is also intended to help reduce the backlog in the Magistrates' Court which as at June 2022 stood at 521,823 pending cases with a total of 233,177 of those cases being older than three years. By its design, the Small Claims Court aims at promoting a people centric approach to access to justice by affording the citizenry justice services that are accessible, inclusive, efficient, timely and responsive.

Through its simplified procedures and cost effectiveness, the Court has ensured the scaling up of access to justice as envisioned under Article 48 the constitution. The bottom up approach to access to justice is then able to create and prioritize basic and community level justice. By and large, the operationalization of the Court is designed to contribute towards achieving equality, poverty reduction and social inclusion by ensuring that all have equal access to fair and timely justice. Determination of cases at a record 60 days has become a game changer.

The official launch of the Meru Small Claims Court on Monday, February 27, 2023 marks the close of the first phase of the operationalization of the Small Claims Court. The first phase saw a total of 12 courts rolled out in the counties of Nairobi, Kajiado, Kiambu, Machakos, Nyeri, Uasin Gishu, Nakuru, Kakamega, Kisumu and Mombasa. These areas were identified as strategic given the level of commerce undertaken and the existing backlog in the magistrates' courts within those counties.

For the close to two years the various Small Claims Courts have been operational, they have all together heard and determined over eighteen thousand cases with claims in excess of Ksh3.7 billion. Giving credence to its character, and as June 2022, the various courts maintained an average time of thirty-seven days for hearing and conclusion of cases which is a significant reduction in time taken to resolve simple commercial disputes and is indicative of the transformative trajectory the judiciary is currently undertaking with a view to making the institution more effective, responsive and efficient.

The timely determination of commercial disputes has enabled the unlocking of billions of shillings which would otherwise have been tied up in lengthy litigation. Further, the various courts have adopted and infused technology into their various processes such as the adoption of virtual courts and the enhancement of the court's e-filing system which has seen the service delivery timelines in the various registries greatly enhanced.

Unlike many jurisdictions with similar courts, the Small Claims Court Act has provided an avenue for appeals to the High Court but purely on matters of law only. For the period, a total of three hundred and ninety-six appeals have been filed in the various High Court Stations out of the over eighteen thousand concluded cases. This translates to 2.2 per cent appeal rate which is indicative of the high levels of satisfaction by litigants in the decisions of the court.

In order not to lose sight of the objective of the Small Claims Court Act, of timely and uncomplicated processes, there are plans to amend the Act to allow the High Court adopt the same procedure as is in the Small Claims Courts for appeals emanating from that Court. Structures have been put both in the Commercial & Tax and the Civil Divisions of the High Court to give dedicated attention to these appeals. The aim is to ensure that the said appeals do not also exceed a 60-day period in the High Court.

With a view to achieving national coverage and promote accessibility, the Court will be strategically rolled out to other parts of the country in due course. In this regard and if the momentum is to be maintained, it is imperative that both capital and human resources be made available to ensure the successful roll out. At present, the Chief Justice has designated twenty-nine serving Resident Magistrates from the Magistrates' Court to serve as Adjudicators in these Small Claims Courts.

For the Court's enhanced and effective performance, it is critical that the optimal numbers of Adjudicators and staff for the Court be recruited if the Court is to achieve the set statutory timelines of sixty (60) days for hearing and determination of disputes. Further, the start-up courts require resources for infrastructural set up, both physical and ICT, which if fully integrated in the court and registry processes will make service delivery more accessible and efficient.

As we start the new year, it will be interesting to see role the Small Claims Court will play toward the creation of enabling environment for Micro, Small and Medium sized enterprises (MSMEs) business to thrive and generally widen the access to justice space for all whilst keeping up with its mantra of Haki Chap Chap!

Justice Mabeya is the Presiding Judge, Commercial and Tax Division

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