Case backlog fears as lawyers target small claims courts

Lawyers have wormed their way into the Small Claims Court after years of lobbying in a move likely to improve quality of dispute- resolution but slow down the wheels of justice.

Small Claims Court — which handles cases valued at no more than Sh200,000 — is a product of the reforms that the Judiciary has implemented in recent years in effort to cut backlog of cases.

Members of Parliament have proposed amendments to expand the court’s mandate to handled disputes of up to Sh500,000, and also endorsed calls by the Law Society of Kenya (LSK) to lift restrictions that have locked out advocates.

The LSK, in a memorandum by its President Nelson Havi, had pushed for amendments to Section 20(2) of the Small Claims Court Act, 2016, through the Small Claims Court (Amendment) Bill, 2020 to allow legal practitioners to represent parties.

“A party to the proceedings shall appear in person or where he or she is unable to appear in person, be represented by a duly authorised representative. The representative referred to in subsection (1) shall not be a legal practitioner,” Section 20(2) of the Act states.

The court was established in April 2016 to resolve disputes “informally, inexpensively and expeditiously” in accordance with principles of law and natural justice.

It is presided over by an adjudicator and determines any civil claim relating to a contract for sale and supply of goods or service, money held and received liability in respect of loss or damage to movable property and compensation for personal injury among others.

Lawyers’ absenteeism has been cited among the reasons the wheels of justice turn slowly in higher courts.

Lawyers are set to charge representation fees on clients, raising cost of justice despite the recent move by the National Treasury to waive fees on disputes valued at Sh1 million and below.

“The parliamentary committee agreed with LSK submissions that Section 20(2) of the Act be amended to allow legal practitioners to represent parties in the Small Claims Court.

“The committee was of the view that the proposed enhanced jurisdiction of the court is likely to attract cases with complicated issues of facts and the law and thus it was important to allow advocates to represent parties in the court,” William Cheptumo, who chairs the Justice and Legal Affairs committee, said in a report on the scrutiny of the Bill.