By Davis Thuranira
Not many Kenyans anticipated the birth of the Small Claims Court before its establishment in 2016 and subsequent operationalization in 2021. During its tentative steps, key information about the court could only be supplied by its conceivers, those folks synonymous with esoteric speeches, often punctuated with enticing promises. They popularized their new creation as an ultimate redeemer in delivering civil and commercial justice. The promising infant was said and truly seemed to have landed with solutions tailored for the legal problems bedeviling the Small and Medium Enterprises (SMEs) and private persons.
As a result, Kenyans grew in hope and began to imagine how the Small Claims Court would salvage the country’s conventional court system from its chronic inter-generational case backlog. The term ‘inter-generational’ is not an exaggeration when the present generation is already condemned to adjudicate the disputes of its ancestors. Besides, it is undeniable that there are countless age-old files in those court registries, and some are turning blank due to decades of unmitigated friction with a legion of judicial palms. In every registry, it is possible to come across a file that looks and smells like a collection of useless papers reconstructed from the remnants of a fire outbreak. This sounds hysterical only to those whose business continuity, reputation, livelihood, or mental health does not depend on that particular old file.
Considering this harsh reality, it becomes easier to assume that in establishing the court, the legislature had really crafted a master plan to enhance the expeditious resolution of disputes. The Small Claims Court is clothed with simple but superior features, customized to speedy disposal of proceedings. If these features are derogated, the difference between the Small Claims Court and the conventional court system would probably be the same. Legislative intention strongly points towards a deliberate goal to ensure the delivery of justice without undue delay. It is doubtful, however, that in determining the fate of its supposed redeemer, the conventional court has assessed its approach on the anvil of the legislative intention.
Based on the content of their popularization campaign, key stakeholders in the justice sector, including the Judiciary itself, truly acknowledge that the 60-day statutory limit prescribed for the Small Claims Court is its most revolutionary feature. Section 34(1) of the Small Claims Court Act 2016 expressly requires the adjudicator to finalize the matter within 60 days of filing the claim. We can’t blame Kenyans for the excitement elicited by this provision. For decades, the right to have matters determined without undue delay has sounded like an alien clause to them. Courts have had to affirm this right on numerous occasions. Never mind that sometimes the judgments that assert this right have also taken years to be entered.
As Kenyans litigate their small commercial and civil disputes in the Small Claims Court, major battles evoked by this single statutory provision continue to gain momentum in the Superior Courts. It is a battle for the most appropriate analogies to be applied to this question, which is said to lack a fitting precedent. Our constitutional law experts have cited different case law and analogies ranging from deadlines in election petitions to those limiting actions and reviews before statutory tribunals. They do this to support their arguments for each side, depending on the specificity of the entry in their diary. Each seeks to discharge their burden in proof that the 60-day deadline under Section 34(1) is either mandatory or aspirational. If mandatory, all judgments entered beyond the deadline are rendered null and void for lack of jurisdiction. Conversely, others claim the deadline is just an aspiration and intends no legal consequences for non-compliance.
On the other side, judges of the Superior Court have seized the opportunity to demonstrate the varying depth of their jurisprudential mastery. The revered sages sitting in the so-called progressive court have picked the analogies suggested by Counsel, analyzed and critiqued them in their usual display of wisdom. Some have shown utmost regard to the guiding values of the Small Claims Court Act, thereby calling for commitment towards the speedy resolution of disputes.
Others consider the lapse of the 60 days as a technicality which, though undesirable, ought not to affect the legality of the judgment. Some also justify their conclusion by taking judicial notice that similar deadlines have failed in the past, especially for the conventional court system. These debates, however, seem quite exclusive as most potential litigants show utter indifference. Whether such an attitude is an expression of protest against the invasion by legal jargon into a court reserved for their minor disputes or they see no merit in a debate already settled by statute remains unclear.
Interestingly, this battle of wits is evocative of the deep concerns of renowned legal philosopher HLA Hart about the paradoxical answers given for questions as persistent as “What is law?” In his book, Concept of Law, the learned professor observes that these confusing answers do not emanate from anywhere. Instead, they are the “outcomes of prolonged reflection of law by men who were primarily lawyers, concerned professionally either to teach or practice law and in some cases to administer it as judges.”
Justice cannot be done unless both sides in a dispute are accorded adequate opportunity to ventilate their issues reasonably. This constitutional safeguard has been used to insulate judgments entered after the lapse of 60 days because, in certain circumstances, the court cannot expedite the proceedings as all parties deserve a proper hearing. This line of thinking will likely gain popularity if the higher courts disregard the 60-day statutory limit. Nonetheless, such a finding would be quite consequential in many ways. First, the debate will now be settled, thus leaving us with no option but to start re-embracing the imperfections of our conventional system. In another perspective, despite the pressuring grievances from their constituents, lawmakers would find it hard to overrule such a judicial finding.
Notably, the practicality of the deadline is key among the critical considerations in determining the fate of the Small Claims Court. It would certainly be unfair to conclude that the legislature failed to anticipate this whole debate on the practicality of the 60-day limit. Under Section 4 of the Act, the legislature limits the number of adjournments to three only. The grant of adjournments is not an absolute entitlement, so the Act requires Adjudicators to allow them only in exceptional and unforeseen circumstances. The toughness of the language used almost suggests that adjournments are probably limited to force majeure like El Nino or other serious natural disasters.
A discussion on parliamentary sovereignty within a system that embraces checks and balances emerges and becomes necessary. Notably, even the inconsistent High Court judgments acknowledge that the 60-day limit was a deliberate measure to attain the expeditious disposal of proceedings. But such an acknowledgment angers the Legislature, especially because their intentions are echoed consistently, word by word, until the last stanza, where drastic change occurs. Whenever lawmakers are irked by the checks from the Judiciary, the idea of having a constitutional amendment reigns in their minds and tongues. This option of seeking the sovereign’s approval might seem democratic until they feel bothered about being engaged in the pettiest things despite having elected representatives.
Indeed, if given a second to comment on this stalemate, Baron de Montesquieu would view it through the lens of separation of powers and the promotion of democratic ideals. Parliament enacts law as the Judiciary assesses its constitutional validity whenever required. Parliamentarians would not hesitate to beg the philosopher to suggest a remedy for the unreasonable exercise of judicial discretion. It may be unreasonable because it fails to reflect the problematic situation. Of course, courts have the luxury to question the constitutional validity of any parliamentary legislation but not the supremacy of the sovereign. Aware of this, the Legislature uses it to base its threats for a constitutional amendment because by doing so, they would express their desires fully and lock them out of the reach of the Judiciary.
A balance between the powers of any government’s judicial and legislative organs plays a critical role in avoiding bad governance, a widely accepted consequence of unchecked power. With both institutions being autonomous, the failure to cooperate in grasping and tackling the challenges Kenyans face is also quite likely.
Borrowing from HLA Hart’s words, the bright rays cast by these diverse answers enable us to see the things concealed within the law, thus increasing our comprehension of it, but their excessive brightness leaves us without a clear view of the issue. In simple terms, we remain confused.
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