AN OVERVIEW OF THE JURISDICTION OF THE SMALL CLAIMS COURT USING VARIOUS COURT DECISIONS

 

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. This was held in the case Samuel Kamau Macharia & Another vs. Kenya Commercial Bank & 2 Others, Supreme Court Civil Appeal (Application) No. 2 of 2011

The jurisdiction of the Small Claims Court is set out in section 12 of the Small Claims Court Act. It provides for the following nature of claims and pecuniary jurisdiction:

a) The pecuniary jurisdiction of this court is Kshs 1,000,000/=
b)  a contract for sale and supply of goods or services
c)   a contract relating to money held and received
d)  liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;
e)  compensation for personal injuries
f)   set-off and counterclaim under any contract

This Court does not have jurisdiction on certain matters as provided in section 13 which include;

a)      Defamation, Libel, Slander, Malicious Prosecution
b)      Dispute over a title to or Possession of Land,
c)     Employment and Labour Relations.”

Here are key aspects of the jurisdiction of the Small Claims Court, supported by relevant case law:

1. Personal Injury Claims

o   Case Law: Naomi Wanjiru Irungu v Francis Kimani Karanja H.C Civil Appeal No. E.037 of 2024,

o    Summary: The appellant lodged a personal injury claim in Ruiru Small Claims Court and averred that the court had the prerequisite jurisdiction to adjudicate the matter. However, the respondent averred that it did not have the jurisdiction and it relied on the Ogwari v Hersi Civil Appeal 223 of 2022 where the High Court in Mombasa held that the Small Claims Court could not entertain unquantifiable claims Further, it was relied on that the Small Claims Court purpose was to handle simple matters and not complex matters where strict proof is necessary.

o    Key Holding: The court held that the decision in  Ogwari vs Hersi (2023) KEHC 20111 (KLR) is not binding on this court as the decision was rendered in Mombasa High Court which is a court of concurrent jurisdiction to this court. Herein being Thika High Court. Hon. F. Muchemi thus opined that section 12 (1) (d) was not unconstitutional. The Small Claims Court being established aimed to expeditiously dispose of cases and provide a platform for litigants to access justice. Thus, the Small Claims Court has jurisdiction to hear and determine cases for compensation for injuries provided that the compensation shall be within its pecuniary jurisdiction of the court.

2. Declaratory Suits

• Case Law: Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR) (25 June 2024) (Judgment)
• Summary: The respondent instituted a declaratory suit against the appellant in the small claims court in Kisumu. It was brought under the Insurance (Motor Vehicles Third Party Risks) Act, seeking to have the appellant, an insurance company settle the decree. The decree was for an award of damages of Kshs 467,490 entered against the Appellant’s insured by the appellant herein. 
• Key Holding: The court looked into the issue of jurisdiction of the Small Claims Court jurisdiction in light of the declaratory suit and upheld that such claims are not provided for in the Small Claims Act.

3. Rental Claims

• Case Law: Christoffersen v Kavneet Kaur Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) [2022] KEHC 14035 (KLR) (Commercial and Tax) (18 October 2022) (Judgment)
• Summary: The Small Claims Court dismissed the appellant’s claim seeking judgment of Kshs 100,000/= against the respondent on account of outstanding rent. For a claim to be brought before the small claims court, it must fit the description of section 12(1) of the Small Claims Act. Counsel for the appellant argued that rent is a form of service, hence was in the purview of Section 12 (1) of the act.
• Key Holding: The court stated that rent has a specific and known meaning which does not extend to a contract for services. Extending the meaning of rent to the rubric of a contract for sale of goods and services would amount to expanding the court’s jurisdiction by craft or innovation. Thus, it was concluded that a claim for rent does not fall within the sphere of “money held and received’’ as the landlord in a claim for rent arrears does not hold any money that is due to a tenant. Nor does a claim for rent give rise to tortious liability or a claim for compensation for injuries. The court therefore concluded that a claim for rent or rent arrears is outside the jurisdiction of the Small Claims Court and ought not to have been entertained.

4. Land Matters

• Case Law: Palms Resort Limited v Qureshi & 2 others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) (16 October 2023) (Judgment)
• Summary: This is an appeal that emanated from the Small Claims Court in Mombasa. The primary issue was related to private land and contracts, choses in action or other instruments granting any enforceable interests in land.  This is expressly excluded in from the Small Claims Court Act.
• Key Holding:  The small claims court does not have jurisdiction to adjudicate such matters that is, jurisdiction ratione materiae.

Conclusion

For any matter to be filed in the Small Claims Court, it ought to meet the prerequisite jurisdiction laid down in the Act precisely in section 12. Thus, one cannot craft any pleading to fit the pecuniary jurisdiction, yet the claim is one that has been exclusively ousted from the jurisdiction of the court.

Further, it is my opinion that there should be clarity in light of personal injury suits and declaratory suits being adjudicated in the Small Claims Court.

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Mercy Muthoni

 

 

AN OVERVIEW OF INITIATING PUBLIC PRIVATE PARTNERSHIP IN KENYA

 

Kenya has stable PPP legal and regulatory framework which comprises of the Constitution of Kenya 2010, the Public Private Partnership Act Cap 430, the Public Procurement and Assets Disposal Act ,2015, court rulings, regulations, guidelines and tribunal determination

The Public Private Partnership Act Cap 430 under section 37 provides procurement methods which a contracting authority may procure a Public Private Partnership Project.

A Public private partnership may be initiated through:

• Direct procurement. (Section 38)
• Privately initiated proposals (Section 40)
• Competitive bidding (Section 46)
• Restricted bidding (Section 45)

 

DIRECT PROCUREMENT.

A contracting authority in consultation with the directorate may use direct procurement if the conditions under section 38 are satisfied inter alia: the private party possesses the intellectual property rights to the key approaches or technologies required for the project, the works and services are only available from a limited number of private parties etc.

A contracting authority is required to:

• Issue a tender document which shall be the basis of the tender preparation by the contracting authority and subsequent negotiations
• Appoint an evaluation committee in accordance to the Act for negotiation of a direct procurement of a project.
• Ensure appropriate approvals under this Act have been granted;
• Ensure that the resulting project agreement complies with this act;

PRIVATE- INITIATED PROPOSALS

A private party may submit a privately initiated proposal to a contracting authority.

A contracting authority may consider the privately initiated proposal submitted if:

• The project is aligned with the national infrastructure priorities and a demonstrated societal need.
• The project provides value for money;
• The project proposal provides sufficient information for the contracting authority to assess fiscal affordability and the potential contingent liability implication of the proposal;
• The project can be delivered at a fair market price;
• The project is supported by all documents
• The project supports the efficient transfer of risk from the public sector  
• The contracting authority shall submit the privately initiated proposal to the directorate

 

The directorate and the contracting authority upon evaluation of the privately initiated proposal, may or may not approve the private-initiated proposal. Such approval however shall not create an obligation on the part of the directorate, contracting authority or the government towards the private party.

 

RESTRICTED BIDDING

A contracting authority may use restrictive bidding if any of the following conditions are satisfied:

• Competition for contract, because of the complex or specialized nature of the works and services is restricted to prequalified tenderers;
• The time and costs required to examine and evaluate a large number of tenders would be disproportionate to the value of the works or services procured.
• If there is evidence to the effect that there are only a few known suppliers of the whole market of the works or services;
• An advertisement is place where applicable on the procuring entity website regarding the intention to procure through limited tender.

 

COMPETITIVE BIDDING

A contracting authority shall on approval of a feasibility report, invite requests for qualifications from qualified bidders with respect to the proposed project.

A contracting authority shall specify the eligibility criteria of a bidder and may require each bidder to provide statements or documents to prove the bidder’s eligibility.

A private party intending to respond to a request for qualification under competitive bidding may do so as part of the consortium of the private parties.

A private party is eligible to respond to a request for qualification if the party:

• Satisfies the criterial specified in the request for qualification issued by the contracting authority.
• Has the technical and financial capacity to undertake he proposed project;
• Has the legal capacity to enter into a project agreement with the contracting authority;
• Is not insolvent, in receivership, bankrupt or in the process of being wound up.

The contracting authority shall upon issuing a notice constitute a pre-qualifying committee for the purpose of pre-qualifying bidders.

A bidder may be disqualified at the pre-qualification stage if they provide false, inaccurate or incomplete information, colludes, connives and is involved in any corrupt or any dishonest practice intended to confirm unfair advantage over other bidders.

After pre-qualification and short listing of pre-qualified bidders, the contracting authority shall prepare tender documents in relation to a project for the purpose of inviting bids from eligible bidders.

A bidder intending to bid shall complete and submit a technical and financial bid. Upon evaluation of the bids the evaluation team may reject a bidder’s submissions where the bidder fails to comply with the conditions specified in the tender documents.

A bidder whose bid has been rejected under section shall not be entitled compensation

On approval of the project, the contracting authority shall notify in writing all bidders of their decision.

The contracting authority shall then proceed to execute the project agreement, and the private party shall be required to commence the project within 12 months.

The contracting authority reserves the right to cancel a tender process at any time before the execution of the project agreement if it is in the public interest to do so.

 

 

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Bridget Inyanje