A frivolous or trivial court case is a lawsuit that lacks legal merit or factual foundation. In most cases, such suits are filed to harass an opponent, squeeze out a nuisance settlement or simply delay an outcome.
A single trivial case might pass for a minor nuisance, but the cumulative economic damage it inflicts on a country’s justice system and litigants is enormous, though entirely preventable. Every frivolous suit occupies judicial time and courtroom space that should be available to litigants with genuine grievances.
Justice is not always delayed by complex litigation; sometimes it is delayed by cases that should never have been filed in the first place.
There is, therefore, an urgent need for a frank national conversation on the cost of allowing hollow litigation to choke the wheels of justice. The courts bear the most immediate burden of frivolous cases.
Lest we forget, taxpayers fund Kenya’s judiciary. Therefore, every hour a judge spends studying a petty case, listening to a baseless application, or composing a reasoned dismissal is an hour stolen from a real dispute.
That said the over 600,000 pending cases clogging Kenya’s justice system currently ought to be reviewed to weed out trivial matters.
A significant slice of that heap consists of claims that, in the language of civil procedure, are ‘scandalous, frivolous or vexatious.’ Ideally, these cases should have been thrown out a long time ago.
Kenyan courts do have the power, under the Civil Procedure Act and the Advocates Act, to order that the losing party pay the full costs of a frivolous action and to discipline lawyers who file abusive cases. But have we invoked that power every time we needed to?
Legal scholars who have studied the economics of frivolous litigation around the world stress that sanctions must be designed to deter, not merely to compensate the parties involved. When the punishment is a token slap on the wrist, the floodgates of the nuisance of trivial cases stay open.
In advocating stronger sanctions, however, we must draw an important distinction between a case that ultimately fails and one that was frivolous from the outset.
Finally, the Law Society of Kenya should exercise stronger oversight of advocates who lend their professional standing to claims that have no real chance of success.
This is necessary because a legal profession that polices its own ranks will earn the public trust that frivolous litigation erodes.
Every baseless suit that occupies a courtroom translates to theft from the citizen. We should therefore not tolerate the economic drain caused by an open legal system that entertains the filing of trivial court cases.
The administration of justice depends on litigants being free to bring bona fide claims, even where the court ultimately rejects them.
An unsuccessful case is not necessarily an abusive one. Sanctions should therefore be reserved for proceedings that are plainly devoid of legal or factual merit, brought for an improper purpose, or constitute an abuse of the court process.
To punish every unsuccessful litigant would discourage legitimate claims and undermine access to justice. The objective is not to deter genuine litigation, but to deter the misuse of judicial process.
Kenya’s justice system has yet to absorb that lesson it seems. The costs awarded against a party who brings a baseless suit often amount to only a fraction of the real expense, leaving the innocent defendant to bear a burden that is not of her of his making.
The economic damage caused by petty suits spills beyond individual cases. According to the World Bank’s Doing Business 2020 report, it took an average of 465 days to resolve a commercial dispute in Kenya. The timeline is stretched needlessly by endless tactical applications and pointless adjournments. We should take note that domestic and foreign investors watch these numbers keenly.
A court system that is slow and open to abuse adds an invisible risk charge to every business decision. When contracts cannot be enforced quickly, the cost of credit rises, and the spirit of enterprise is ultimately dampened. Working hard as Kenya is to
attract investment and create jobs we possibly cannot afford the toll imposed on business by otherwise avoidable airlocks in the court system.
Given the foregoing scenario, Kenya should do better. The Judiciary should foster a case-management culture that identifies and strikes out frivolous pleadings early in the scheduling process.
That will forestall trials that never needed to happen. Besides, the scale of costs awarded against those who bring baseless claims should reflect the true economic harm they inflict, not just a nominal fee that one can shrug off as a minor irritation.