Introduction
The High Court has been under fire this past week especially for the holding that Small Claims Court’s decision made after the lapse of the statutorily set 60-day period are a nullity and have no force of law in Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) (Civil Appeal 129 of 2022) [2023] KEHC 2417 (KLR) (hereinafter the “Kartar Case”). This is notwithstanding an earlier decision of the same court, calling for consideration of the circumstances that led the Small Courts reaching the decision out of time to weigh whether it should stick and have force of law in Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (hereinafter the “Crown Beverages Case”).
Otieno and Kehonji put down their thoughts on why either decision are reasonable below.
- Decisions Made Outside Statutory Timelines Should Remain a Nullity- Otieno
Judge Patricia Gichohi in the Kartar Case has caused quite some stir for holding that:
“…judgment delivered…outside the statutory timelines set under Section 34 of the Small Claims Court Act and hence made without jurisdiction. It is therefore a nullity, bereft of any force or effect in law.”
The court reached this decision while relying on the Supreme Court decision in Petition 3 of 2019 Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR and the Court of appeal decision in Civil Appeal Case No. E039 of 2021 Aprim Consultant v Parliamentary Service Commission & 2 others (unreported).
In the three decisions now, I align myself with the sentiments they espouse especially in reasoning that the moment the statutorily set timelines end, the jurisdiction of a court also ends. Thus, any judgment returned outside time should be without jurisdiction and therefore a nullity, bereft of any force or effect in law. I also wish to align myself with the reasoning in the Aprim Consultant Case (Supra) that: “…legal conclusion remains irrespective of the avowed reasons, no matter how logical, sound, reasonable or persuasive they may be. No amount of policy, wisdom or practicality can invest a decision made without jurisdiction with any legal authority.” Allow me to explain.
Access to justice is a fundamental pillar of the Constituion of Kenya, 2010 which ensures that individuals can assert their rights and seek redress for grievances. In the pursuit of efficient and effective justice, the establishment of statutorily set timelines plays a critical role. These timelines serve as essential guideposts, contributing to the smooth functioning of the legal system and enabling timely resolution of disputes with certainty.
The timelines provide a framework within which legal proceedings can be efficiently conducted. By setting specific time limits for different stages of litigation, such as filing a claim, responding to pleadings, or scheduling hearings, these timelines help streamline the judicial process. Timely resolution of disputes not only reduces the burden on courts but also ensures that parties involved receive justice in a reasonable timeframe.
Delays in the justice system can erode public confidence and impede access to justice as the Supreme Court found in the Martha Wangare Karua case (Supra). Statutorily set timelines act as a safeguard against undue delays by promoting expeditious case management. These timelines create accountability for all parties involved, including litigants, lawyers, and the judiciary. When adhered to, they serve as a mechanism to prevent the misuse of legal processes, unnecessary adjournments, and protracted litigation, thus ensuring justice is delivered efficiently.
Further, statutory timelines contribute to the fairness and predictability of legal proceedings. They ensure that all parties have a clear understanding of the expected timeframes within which they must act. This promotes equal treatment and prevents any party from gaining an unfair advantage by unduly prolonging or delaying the process. Predictable timelines foster confidence in the justice system and provide litigants with a reasonable expectation of when their case will be heard, adding to the overall efficiency of the legal process.
Courts assuming jurisdiction upon lapse of time can undermine the principles of access to justice and efficiency especially the Small Claims Court looking at why it even exists at first. If the Court is allowed to continue assuming jurisdiction even upon lapse of time, this shall result in delayed justice and a strain on resources of both the litigants and judiciary. Additionally, it creates uncertainty for litigants who may have relied on the expiration of the timeline to seek alternative remedies or pursue different legal strategies.
Equally, it is crucial for courts to respect the statutory timelines established by the legislature. Doing so upholds the principle of separation of powers and ensures that courts operate within the boundaries defined by the law. By strictly adhering to statutory timelines, courts not only preserve the integrity of the legal framework but also reinforce the importance of efficiency and access to justice.
Statutorily set timelines serve as a cornerstone for access to justice, promoting efficiency and preventing unnecessary delays. Timelines which if are allowed flexibility, the floodgates of abuse are going to open. Courts should refrain from assuming jurisdiction when these timelines expire, as it undermines the principles of fairness, predictability, and effective case management. By strictly adhering to statutory timelines and enforcing them consistently, courts can enhance access to justice, instill public confidence in the legal system, and ensure that justice is delivered in a timely manner.
- Courts Should Be Considerate of other Principles Even When Statutory Set Timelines Lapse- Kehonji
The Kartar Case contradicts an earlier decision from the same Court in Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR). The Court, in this decision, was tasked to determine an appeal from the judgement of the Small Claims Court touching on various aspects including the delivery of the judgement after lapse of the statutory set 60days time limit. The Appellant in this case argued that since the Small Claims Court delivered the judgement outside the set timelines, then the judgement was invalid since the court did not have jurisdiction at the point of determination, and as such the judgement could not be executed against it.
Justice David Majanja, in determining this aspect, opined that though section 34 of the Small Claims Act is couched in mandatory terms, the provision on delivery of the judgement within 60days is directory. As such, the Court ought to look at this provision in the light of other guiding principles of the Court like timely disposal of proceedings using the least expensive method. The Court relied on the Court of Appeal case of Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) in holding that invalidating proceedings for the mere reason of non-compliance with statutory timelines would cause injustice to the parties; particularly considering the time and resources spent in litigation, and denying the trial forum a chance to assert their jurisdiction by issuing a judgement in a matter they have heard to finality.
The Court finally held that the delivery of a judgement by the Small Claims Court outside the statutory 60days time limit can only invalidate the proceedings and judgement where the delay was inordinate and hence prejudicial to the parties.
The upshot of the Crown Beverages case is to consider all principles envisioned in setting the statutory timelines within which the judgement should be delivered. The reasoning of the Court, which I agree with, is that the statutory timelines should be obeyed while also considering other factors. Where there is non-compliance with these statutory set timelines, there is need to look at other extenuating factors: What caused the delay? Was the delay inordinate? Was the delay prejudicial to the parties? Invalidating proceedings and decisions for non-compliance with timelines should not be applied in a blanket structure but should be considered on a case-by-case basis.
Conclusion
While access to justice is an essential pillar of the Constituion of Kenya, 2010 and statutorily set timelines for courts to make decisions are essential towards achieving this, it is essential for litigants and judicial officers to be weary and stick to the set timelines. It is also essential for an appellate court to consider the circumstances on a case-by-case basis when faced with the questions of whether decisions are null and lacking force of law for the sole reason of being delivered outside statutory set timelines.
By:
Otieno. R. otieno@alakonyalaw.co.ke
Kehonji. T. kehonji@alakonyalaw.co.ke
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Educative and informative article.