In my earlier article, How Administrative Sabotage Killed the Small Claims Court, I argued that one of Kenya’s most promising access to justice experiments was being systematically destroyed from within. I traced the deterioration of the Court from an innovative, commercially sensible institution into something increasingly resembling the very Magistrates’ Courts from which Parliament had deliberately tried to distinguish it. I blamed administrative capture, the abandonment of a dedicated registry structure, the wholesale importation of conventional civil procedure, delayed decrees, procedural formalism, institutional indifference and, perhaps most importantly, the unwillingness of the Judiciary to accept that Parliament had created a court that was supposed to operate differently.
I ended that article substantially agreeing with Justice William Musyoka’s diagnosis in Muiruri v Mkalama. His description of the “Small Claims Court project” as failing was refreshingly candid. He correctly identified the central institutional problem: the Court had gradually abandoned the procedural simplicity contemplated by the Small Claims Court Act and had begun operating like an ordinary civil court.
On that diagnosis, I remain in complete agreement. On the cure, I am no longer so sure.
What has happened since then, particularly when Muiruri, Mboga, Gathaiya and the growing body of jurisdictional decisions are read together, points to something more dangerous than administrative incompetence.
The Small Claims Court is not merely being badly administered anymore. Its jurisdiction and powers are being steadily dismantled. And almost every time another piece is removed, the justification is the same: jurisdiction must be strictly construed.
That proposition sounds unimpeachable. Every Kenyan lawyer knows that jurisdiction comes from the Constitution and statute. Every Kenyan lawyer has cited Lillian S. Every Kenyan lawyer has cited Samuel Kamau Macharia. A court cannot invent jurisdiction simply because exercising it would be convenient. But that is not really the controversy anymore. The real question is the opposite one.
What happens when Parliament has actually granted jurisdiction, but courts progressively interpret it away?
That question is now becoming impossible to avoid.
The Court was created to fight a very particular form of impunity
The importance of the Small Claims Court has always been easy to underestimate because the amounts involved are, by definition, relatively small. But that is precisely why the Court mattered. Kenya has always had a peculiar form of commercial impunity in which a sufficiently sophisticated debtor could defeat a perfectly legitimate claim simply by making enforcement economically irrational. If you owe somebody KShs. 100,000 and refuse to pay, uta do?
A rational claimant could easily spend a substantial percentage of the debt simply trying to recover it, if they were to go through the Magistrate Courts. Add the opportunity cost of several court appearances and a case lasting years, and refusing to pay small debts could become economically rational. That is impunity.
It is not the dramatic impunity of stolen billions or grand corruption. It is the ordinary impunity experienced every day by small businesses, tenants, accident victims, suppliers, employees, professionals and consumers. The landlord who keeps a KShs. 150,000 deposit because he knows the former tenant will eventually give up. The company that refuses to pay a KShs. 400,000 invoice because the supplier cannot finance prolonged litigation. The debtor who understands that delay itself is leverage. The person who damages someone else’s property and calculates that the cost of litigation will exceed the value of the loss.
The Small Claims Court was Parliament’s answer to that problem. And Parliament did not merely give an ordinary Magistrates’ Court a lower pecuniary ceiling. It designed a fundamentally different judicial institution.
Section 3 of the Small Claims Court Act requires the Court to adopt procedures ensuring timely disposal using the least expensive method, equal access to judicial services, fairness and simplicity. Section 17 then gives the Court control over its own procedure, subject to the Act, the Rules and the principles of natural justice. Section 32 deliberately relaxes the strict rules of evidence. Section 34 imposes an extraordinary sixty day timetable. Appeals are restricted. Procedure is compressed. The entire architecture is designed around speed, affordability and accessibility. Above all this sits Article 48 of the Constitution: The State shall ensure access to justice for all persons.
Unfortunately, Article 48, section 3 and section 17 increasingly appear to be treated as inspirational language which may be applauded in the introductory paragraphs of a judgment and then forgotten when the jurisdictional analysis begins.
Parliament expressly told us what was excluded
The architecture of sections 12 and 13 is particularly important. Section 12 says what the Small Claims Court may hear. It includes contracts for goods and services, money held and received, specified property torts, compensation for personal injuries, and contractual set offs and counterclaims. Section 13(5) then tells us what Parliament did not want the Court to hear. It expressly excludes claims founded upon defamation, libel, slander, malicious prosecution, disputes over title to or possession of land, and employment and labour relations.
Parliament therefore knew perfectly well how to exclude a cause of action. Indeed, that was precisely the approach taken by the High Court in Wanjiru v Kiilu [2024] KEHC 8881 (KLR). The Court held that a road traffic personal injury claim fell squarely within section 12(1)(d). More importantly, it said that, apart from the matters expressly excluded by section 13, claims falling within section 12 remained within the Small Claims Court subject to the monetary limit.
That approach was repeated in Ochieng v Mshila [2025] KEHC 2660 (KLR). The High Court again observed that section 13(5) specifically identifies the matters excluded from the Small Claims Court and that personal injury was not among them. That, in my view, is how an access to justice statute should be interpreted.
Then came Gathaiya. In Gathaiya v Attorney General & 2 others; 176 Interested Parties [2026] KEHC 290 (KLR), a three judge bench of the High Court held that the Small Claims Court has no jurisdiction over personal injury claims arising from road traffic accidents.
The significance of the decision cannot be overstated. Section 12(1)(d) says: “compensation for personal injuries.” It does not say compensation for some personal injuries or personal injuries except those suffered in motor vehicle accidents. Rule 5(3) of the Small Claims Court Rules goes further and expressly specifies the medical documents a claimant seeking personal injury compensation under section 12(1)(d) must produce. And road traffic injuries are not contained in section 13(5)’s list of excluded causes of action. Yet the High Court held that road traffic personal injury claims were outside the Small Claims Court’s jurisdiction.
What is particularly extraordinary is that the Court itself acknowledged the problem. It accepted that a cursory plain reading of section 12 and the Rules would indicate that the Small Claims Court had jurisdiction over personal injury claims. Later, when dealing with pending cases, the Court acknowledged that an ordinary reading of section 12 could not have alerted litigants that these claims were supposedly never intended for the Court.
Pause there.
- A statute expressly says “compensation for personal injuries”.
- The Rules expressly provide the documents required for personal injury claims.
- The statute expressly lists excluded causes of action and does not include road traffic injuries.
- Previous High Court decisions had said those claims were within jurisdiction.
And yet litigants were ultimately told that Parliament did not really mean road traffic personal injuries. That is a remarkable form of statutory interpretation. The Court’s reasoning rested substantially on what it considered the broader legislative intention, the characteristics of road traffic claims, the involvement of insurers, questions of negligence and the practical difficulty of resolving such matters within the compressed Small Claims Court framework.
But Parliament already knew all of this. If Parliament meant: “compensation for personal injuries other than personal injuries arising from road traffic accidents”, it could have written exactly that. It did not. The judges have effectively inserted those words for it.
That is why this debate is no longer adequately answered by repeating that jurisdiction must be conferred by statute. It was. The real issue is how much of that statutory jurisdiction a court can remove by interpretation before judicial interpretation itself starts doing the work of legislative amendment.
There is an additional irony in Gathaiya. Having excluded thousands of claims from the Small Claims Court, the Court invoked Article 48 when protecting litigants who had already filed their cases, ordering the pending road traffic matters transferred to Magistrates’ Courts so that claimants would not suffer prejudice. Article 48 therefore only mattered after jurisdiction had been removed. Why did it not carry comparable weight when interpreting whether Parliament had removed that jurisdiction in the first place? That is the jurisprudential contradiction at the heart of the present problem.
Section 17 has also been steadily forgotten
There is another provision that deserves far more attention than it receives: section 17. The Small Claims Court controls its own procedure. That provision was fundamental to Parliament’s design because the ordinary rules of civil litigation were themselves part of the problem Parliament was trying to solve. Several High Court decisions have understood this perfectly.
In Nalianya v Mwanza [2025] KEHC 3432 (KLR), Justice Musyoka expressly held that section 17 does not tie the Small Claims Court to the Civil Procedure Act or Civil Procedure Rules and described the Small Claims Court Act and Rules as a distinct procedural regime.
Likewise, in Kenya Orient Insurance Limited v Otieno [2024] KEHC 7637 (KLR), the High Court emphasised that the Small Claims Court possesses its own exclusive procedure and that the Civil Procedure regime does not simply apply wholesale. This is critical because the Court was not supposed to ask how an ordinary Magistrates’ Court would handle a problem. It was supposed to ask:
What procedure is fair, simple and inexpensive, having regard to natural justice?
That is a radically different question. Yet whenever difficulty arises, the tendency has increasingly been to see the difficulty as evidence that the matter belongs elsewhere.
- Too many documents? Too complex.
- Counterclaim? Too complex.
- Several witnesses? Too complex.
- Another statutory framework involved? No jurisdiction.
- Execution mechanism not spelled out with conventional civil procedure detail? No power.
Section 17 was enacted precisely because Parliament knew unexpected procedural problems would arise. It gave the Court flexibility so those problems could be solved. We increasingly use those same problems as reasons why the Court should not act at all.
And now even the Court’s ability to enforce its judgments is vulnerable
A court that can determine rights but cannot effectively enforce them is not delivering justice. It is issuing opinions. This is another area in which the Small Claims Court’s powers have come under pressure.
In Gathaiya, the High Court also considered Rule 25 of the Small Claims Court Rules, which imported Civil Procedure mechanisms of execution including arrest and committal to civil jail. On this issue the constitutional concern is considerably stronger. Deprivation of liberty cannot simply be smuggled into a statutory regime through subsidiary legislation where the parent statute itself does not properly authorise it.
The Court held Rule 25 unconstitutional and ultra vires insofar as it imported arrest and committal to civil jail as an execution mechanism. There is legitimate constitutional reasoning behind that conclusion. But again, look at the cumulative institutional result. Another enforcement tool disappears.
Garnishee proceedings have already been casualties in some adjudicators’ courts.
Fortunately, in Okemwa v Musau; Family Bank Limited & 2 others [2025] KEHC 4518 (KLR), the High Court adopted the sensible position that the court which pronounced judgment retains jurisdiction over execution and that pending Small Claims Court garnishee proceedings should be determined by that Court rather than displaced through collateral High Court proceedings.
That approach must be protected legislatively. Because the habitual debtor is not frightened by a judgment. He is frightened by execution. The person who refuses to pay a KShs. 300,000 debt does not reconsider his conduct because a beautifully reasoned judgment exists on Kenya Law. He reconsiders it when money leaves his bank account. Every unnecessary restriction upon execution restores some of the impunity the Small Claims Court was designed to eliminate.
The shrinking jurisdiction is spreading into ordinary contractual relationships
The same tendency can be seen in professional fee disputes.
In Ako Advocates LLP v Mehata [2025] KEHC 2300 (KLR), an advocate had entered into an engagement under which fees were agreed, part was paid and the balance remained outstanding. On its face, one might think this sounds remarkably like a contract for the supply of services and a claim for money due under that contract.
The High Court nevertheless held that disputes concerning enforcement of advocates’ fee agreements must be understood within the specialised Advocates Act regime and that the Small Claims Court did not possess jurisdiction over the dispute before it.
Again, there is respectable legal reasoning available for that result.
- Advocates’ remuneration is specially regulated.
- Taxation exists.
- The Advocates Act contains a specialist framework.
But look at the method rather than the individual result. A claim apparently falling within section 12 encounters another statute. That statute is described as specialised. The apparent jurisdiction recedes. The Small Claims Court gets smaller.
Compare that with Muhanda v LP Holdings Ltd [2025] KEHC 393 (KLR). A former tenant sought repayment of a KShs. 230,000 security deposit. The dispute arose from a tenancy and the landlord asserted repair related deductions. A mechanically restrictive interpretation could easily have said: tenancy involves land, section 13 excludes land disputes, jurisdiction gone.
Instead, the High Court looked at the true nature of the cause of action. The claim was essentially for recovery of money held under a contractual arrangement, not a contest over title or possession of land. Jurisdiction was restored. That is what purposive interpretation looks like. It respects Parliament’s exclusions without inventing new ones. Most importantly, it remembers that the Small Claims Court Act exists to provide a remedy, not to create an intellectual puzzle about how many ways a claim can be redirected elsewhere.
At some point we must stop calling the pattern accidental
This is the uncomfortable part.
In the earlier article, I blamed administrative sabotage. I now think the problem is larger. I do not suggest that judges and magistrates are participating in some coordinated conspiracy to destroy the Small Claims Court. There is no evidence upon which I could responsibly make such an allegation. But institutions do not require conspiracies to defend institutional interests. Power usually protects itself much more subtly. Through: culture; interpretation; professional instinct; a preference for familiar processes.; decisions which, viewed individually, can each be defended but which, viewed cumulatively, all seem to move power in the same direction.
And judicial officers are not external observers of the system the Small Claims Court was disrupting; they are part of that system. The legal profession is part of it. Large insurers, banks and corporations are part of it. Government institutions are part of it.
The Small Claims Court represented a transfer of legal power away from those who understood how to manipulate conventional litigation and towards citizens who previously could not afford to use it. That Court did something even more uncomfortable. It imposed discipline on judges themselves:
- The sixty-day rule was not primarily an instruction to litigants; it was an instruction to the Judiciary.
- Section 17 was not primarily a limitation upon citizens; it was permission to judges to abandon procedural ritual.
- Section 3 did not ask litigants to spend more money proving that their claims deserved judicial attention; it commanded the institution to use the least expensive procedure.
That is why the judicial response to the Court’s deterioration matters. Faced with a Court struggling to comply with its statutory design, there were two possible responses:
- The first was institutional reform. Appoint sufficient adjudicators. Give the Court independent administration. Stop unnecessary adjournments. Enforce day to day hearing. Use section 17 aggressively. Discourage written submissions. Issue decrees immediately. Modernise execution. Discipline chronic delay. Demand that the Judiciary comply with the Act.
- The second response was easier. Reduce the number of cases the Court can hear. Treat sixty days as jurisdictional. Describe complicated claims as unsuitable. Narrow execution powers. Exclude causes of action through interpretation. Send litigants somewhere else.
Again and again, the burden of solving institutional failure has been shifted from the institution onto the citizen.
That is why I no longer regard the cumulative erosion as an innocent coincidence. Whether consciously intended by individual judges or not, the institutional choice is clear. When forced to choose between making the Judiciary conform to the Small Claims Court Act and making the Small Claims Court conform to the traditional Judiciary, we have repeatedly chosen the latter. And the people who benefit from that choice are overwhelmingly those with the money, knowledge and endurance to survive conventional litigation.
We are rebuilding the impunity Parliament tried to destroy
This is why the erosion of the Small Claims Court is not a niche procedural debate. It is an Article 48 problem. Justice is not accessible merely because a registry theoretically exists in which proceedings can be filed. For a person owed KShs. 200,000, a procedure costing KShs. 150,000 and taking three years is not meaningful access to justice. It is a legal remedy only in the most formal sense.
The original genius of the Small Claims Court was that it made small legal wrongs worth pursuing. Most Kenyans do not encounter injustice through constitutional petitions or billion-shilling commercial disputes. They encounter it through the KShs. 80,000 somebody refuses to refund. The KShs. 250,000 invoice somebody refuses to pay. The KShs. 150,000 security deposit a landlord simply keeps.
These are life changing sums to ordinary households and small businesses, but historically they have been too small to justify conventional litigation. The Small Claims Court changed that calculation. For perhaps the first time, the law told the economically powerful: You cannot rely on the cost of justice to protect you from the consequences of a small wrong. That is what made the Court dangerous to impunity. And that is what we are losing.
Parliament must now take its Court back
There comes a point at which waiting for jurisprudential harmony becomes irresponsible. We have reached it. Parliament should amend the Small Claims Court Act comprehensively and draft those amendments on the assumption that anything left ambiguous will eventually become another jurisdictional battle.
Section 3 should become a true overriding objective. It should expressly state that the Act is intended to give effect to Article 48 by providing accessible, inexpensive and expeditious determination and enforcement of small civil claims, and that where more than one reasonable interpretation of the Act is available, the interpretation that preserves access to the Court and advances its jurisdiction should be preferred.
Section 13 should then be made expressly exhaustive. Parliament should say, in language incapable of creative reinterpretation, that the causes of action expressly listed in section 13(5) constitute the substantive exclusions from jurisdiction and that a claim otherwise falling within section 12 is not excluded merely because it is factually complex, involves multiple parties, requires expert evidence, interacts with another statute or raises a difficult question of law.
If Parliament wants road traffic personal injury claims in the Small Claims Court, Gathaiya should be reversed legislatively in one sentence. Section 12(1)(d) should read “compensation for personal injuries, including personal injuries arising from road traffic accidents”. Parliament can then prescribe whatever limited procedural accommodations insurers legitimately require. Complexity should produce case management, not abolition of jurisdiction.
Section 34 requires even more urgent surgery. The Act should state expressly that the sixty-day period is mandatory as a case management obligation imposed upon the Court but does not extinguish jurisdiction, invalidate proceedings or prejudice any litigant if exceeded.
If Parliament wants the sixty days to have teeth, put those teeth where responsibility belongs. Require reporting by adjudicators. Require reasons for overdue matters. Create administrative consequences for persistent unjustified delay. But do not confiscate the claimant’s judgment because the State failed to provide justice on time.
Section 17 should also be strengthened. Parliament should expressly declare the Small Claims Court Act and Rules a self-contained procedural framework and provide that the Court possesses every incidental procedural power reasonably necessary to determine and enforce a claim falling within its jurisdiction, subject to natural justice and the Constitution. The Civil Procedure Act and Rules should apply only where expressly incorporated and only to the extent consistent with the simplified character of the Court.
Execution must be made equally explicit. The Act should spell out attachment, garnishee proceedings, examination of judgment debtors, attachment of income and other modern execution mechanisms. The uncertainty exposed by Gathaiya should not be allowed to metastasise into a broader assault on enforcement. If Parliament considers civil imprisonment necessary for the contumacious debtor who has the means to pay but deliberately refuses, it must legislate that power directly and surround it with Article 24-compliant safeguards. If it does not, other effective enforcement mechanisms must be strengthened.
Parliament should also legislate directly for recurring jurisdictional disputes such as security deposits and repair deductions, agreed professional fees not requiring prior taxation, contractual set-offs, counterclaims and garnishee proceedings.
Every appeal litigated merely to determine whether the Small Claims Court can hear a KShs. 300,000 dispute represents a failure of legislative drafting and a victory for the very procedural cost the Court was created to eliminate. And Parliament should finally make explicit what ought already to be obvious from Article 48, Article 159 and section 3: the existence of another court capable of hearing a dispute is not, by itself, a reason to deprive the Small Claims Court of jurisdiction Parliament has expressly given it.
The Court was dangerous because it proved the excuses were not true
For a brief period, the Small Claims Court demonstrated something deeply inconvenient about the Kenyan justice system. It demonstrated that justice did not have to take years; that every case did not require endless mentions; that documents could be evaluated without worshipping evidential ritual; that submissions were not always necessary; that a KShs. 200,000 dispute could receive serious judicial attention; that courts could be technologically agile; that speed and fairness were not mutually exclusive. Most dangerously, it demonstrated that much of what we have been trained to accept as inevitable judicial complexity is not inevitable at all.
The Court therefore threatened more than dishonest debtors; it threatened an entire culture. My earlier article argued that administrative sabotage was forcing the Small Claims Court back into that culture. I now believe restrictive jurisprudence presents an even greater threat. Administrative dysfunction can be corrected administratively, but jurisdiction removed by precedent is much harder to recover.
Once we say road traffic injuries were never really included despite section 12 saying personal injuries, once we say jurisdiction evaporates because the Judiciary missed a deadline, once we begin treating complexity as evidence that a claim never belonged in the Court, and once execution powers become progressively uncertain, the institution can remain physically open while becoming legally irrelevant. That may ultimately be the most effective way to kill a reform. Eventually the ordinary Kenyan will arrive at exactly the position he occupied before the Small Claims Court existed: He will have a right, which he cannot enforce.
Does Article 48 guarantee a place where a Kenyan may theoretically seek justice, or does it guarantee a justice system that an ordinary Kenyan can realistically afford to use?
If it means the former, then none of this matters. If it means the latter, the steady erosion of the Small Claims Court is one of the most serious access to justice reversals presently taking place in Kenya. Administrative sabotage began the destruction. Judicial restriction is completing it.
Parliament must take the people’s Court back before there is nothing left to save.