Divorce Mediation in Kenya today

By William Ngaruiya

Mediation is a social process through which a third-party assists parties to resolve their conflict. The mediator does not resolve the dispute but instead helps the parties reach a conclusion on their own. Mediation is utilised in various forms of disputes, including family disputes. There will be a primary focus on divorce mediation as a form of family mediation.

According to Kenyan scholar Kariuki Muigai, family mediation has grown to prominence in developed jurisdictions such as the United States of America (USA), Australia, Canada and Scotland. It deals with matters such as adoption, child protection, guardianship, probate, separation, and divorce. The popularity of family mediation can be attributed to the negative results of the court process. Parties would rather meet a compromise through mediation than being totally denied a portion of, for example, the property in question (as may be the case in a court process). Moreover, family mediation improves the communication of the parties, such as during the murky divorce process. This leads to parties being more cooperative during the mediation process. Additionally, family mediation saves the parties’ time and money as compared to the adversarial court process. There is also the appealing benefit of the mediation being private between the parties, where there is no fear of private matters being in public court records.

One of the forms of family mediation is divorce mediation. Divorce mediation is the out of court settlement technique that is applicable in the resolution of divorce cases. Divorce mediation is not a novel idea in the world. It exists in a plethora of European countries including Germany. Divorce mediation appeared as early as the mid-1980s in Germany, and is offered by private practices. In England and Wales, family mediation (particularly divorce mediation) was given backing in 1996 within the Family Act. The key benefits of family mediation in the realm of divorce are clear from this Act: it removes fault; there is a reduction of distress to both parties involved and the children affected; it promotes a healthy continuing relationship between parties involved including the children; and it prevents ‘costs being unreasonably incurred in connection with the procedures’.

However, divorce mediation is not appropriate for every dispute, for example, in situations where the parties involved have a history of domestic abuse. This is evinced in many jurisdictions, including Norway. In Norway, the Marriage Act prevents cases of domestic violence being sorted out through mediation. Domestic abuse is inclusive of a plethora of forms of abuse; whether physical violence, threats, forced isolation from friends and family, or economic abuse. The power dynamics in a relationship where that has been domestic abuse make it inherently unfair to the victim of the abuse during the process of divorce mediation, as they are forced to make concessions and agreements with the partner who has abused them.

Kenya puts at the forefront the protection of its family unit, as exemplified in Article 45 of the 2010 Constitution of Kenya. This Article appreciates the family as ‘the natural and fundamental unit of society and the necessary basis of social order, [which] shall enjoy recognition and protection of the state’.  Also, the government places a keen watch on the welfare of children, especially in the process of divorce as seen in Section 4 of the Children’s Act (2008) which protects the interests of the child and the right of the child to be heard in matters that will affect him/her.

The Marriage Act (2014) recognises mediation in Christian marriages, customary cases and civil marriages. The Act recognises informal justice mechanism such as conciliation and mediation. For a Christian marriage, the couple can seek reconciliatory services from their places of worship, for a civil marriage, the parties are allowed to seek conciliatory process agreed to by both parties and for a customary marriage, they may seek customary devices of marital dispute resolution. Moreover, the Act recognises the importance of marriages and family to society and as a result, before one can get a divorce, they have to attempt the aforementioned dispute resolution measures.

Divorce mediation has more advantages than divorce litigation. Divorce mediation reduces anxiety of the parties in the session, there is a better understanding of the process, and there is better adjustment by the children in post-divorce conditions. Interestingly enough, child inclusive divorce mediation leads to the advancement of justice to the children, as they are also considered in the process and their rights under Section 4 of the Children’s Act are observed. It is also a desirable means of dispute resolution as it takes less time than a divorce case in court and the parties will spend less time and money in solving the dispute and it also confidential meaning the proceedings will not be able for viewing by the public ensuring the parties are safe to say anything in resolving the dispute.

Not only is divorce mediation a form of alternative dispute resolution (ADR) recognised in Article 159(2) (c) of the Constitution, but it has also been backed up by the Court Annexed Mediation introduced on April 2016. The Scheme’s main role is to decongest the backlog of cases in Kenyan courts, as well as encourage persons to avoid litigation where ADR would be more appropriate. With a particular focus on divorce mediation in Kenya today, after the implementation of the CAM, there has been rapid awareness and involvement of family mediation in resolving familial disputes (including divorces) and this has led to a settlement rate of 55.7% in family cases. The new CAM scheme and the provisions of the Marriage Act strengthen the stance of the nation on the use of ADR mechanisms in solving marital disputes as opposed to litigation. There is also a growing need for the current divorce mediation in the country to be a more child inclusive/focused. Child inclusive mediation fully ensures that the needs of the child are met and are protected. This will help to ensure that the child does not go through any emotional distress.

In order to make family mediation widely issued in the realm of divorce, Kenyan Laws should stipulate that ADR ought to be a mean through which divorce can take place, for instance, a judge can relegate a divorce case to mediation. There is also a need for more public awareness of the existence of divorce mediation. Family mediation, in general, should also be continually encouraged as it could solve a great number of family disputes and will ensure the enhancement of communication between the familial parties involved. Moreover, divorce mediation needs to be more child inclusive and focused so as to protect the most vulnerable parties in the entire divorce process.

Justice v Settlement: A Case for Alternative Dispute Resolution Measures

By Joy Mereyian Marima

In the recent past, a diverse range of dispute resolution methods commonly known as Alternative Dispute Resolution (hereinafter ADR) has gained worldwide recognition, a growing role in legal practice, as well as academic recognition. ADR refers to dispute resolution processes that differ from and therefore serve as alternatives to court proceedings. In Kenya, these methods have gained Constitutional recognition pursuant to the enactment of the 2010 Constitution of Kenya. Article 159(2) of the Constitution states that in exercising judicial authority, courts and tribunals shall be guided by alternative methods of dispute resolution including arbitration, mediation and traditional dispute resolution mechanisms (TDRMs). Each method is inherently different. Their primary difference lies in their structure, purpose, complexity, and thus the potential outcomes.

The importance of ADR has significantly grown over the years, especially in cases with deep emotional overtones which tend to outlive the conflict itself. Despite its professed advantages, ADR has also faced fierce opposition. One of the arguments that has been posed by adjudication proponents is that more often than not, ADR leads to settlement as opposed to justice— a problem that renders the system inherently defective and therefore not suitable to serve as an alternative to the traditional court system.

Settlement is an alternative to pursuing litigation through trial. It is where the defendant and the claimant come to a mutual agreement through bargaining. A settlement ends the ongoing litigation as the parties’ resort to the mutually reached agreement. Justice refers to the constant and perpetual disposition to render each man their due and in the most extensive sense of the word, it refers to the conformity of our actions and our will to the law.

Owen Fiss— in his famous article ‘Against Settlement’— opines that settlement as a product of ADR proceedings is a highly problematic technique because the consent may often be coerced in the absence of a trial or a judgment. He elaborates on three reasons for his view which are important points to consider. 

Firstly, he recognises that settlement is a function of the resources that are available to each party. Therefore, a disparity in resources could influence the settlement as the poorer party may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment. This, however, is not the case in the traditional court system as a judge is put in place to lessen the distributional inequalities, the presence of a judge enables him to employ measures such as inviting institutions and persons to participate as amici.

Secondly, a settlement cannot substitute a judgement made by a judge in the traditional court system because in ADR proceedings when parties come to a mutual agreement, it is the end of the proceeding. However, in traditional courts the declaration of a judgment may not be the end of the proceeding as parties could go back to court in the event that a party fails to act in accordance with the judgement given, thus there is continued judicial involvement. 

Thirdly, he asserts that ADR ousts the courts’ mandate to render an interpretation of the law. This is because individuals speak for themselves and are bound by self-generated rules. The law is an integral part of society because it not only brings order, but it also depicts the values that are closely held by a society. As society evolves, so does the law and this evolution is brought about by the interpretation that is rendered by judges in the traditional courts.

From the above, it is clear that the conception of justice that is adopted by adjudication proponents is one that views it as conformity with the law and more so a social process by which judges give meaning to public values. It is viewed as something that ought to be given by the government. However, the Socratic conception of justice widens the lens by which one views justice. The Socrates in the Republic defines justice as not the will of the stronger, not the efficiency of the government but what people discover when they walk together, listen to each other, and love one another.

Andrew McTheni, in his Article ‘For Reconciliation’, states that ADR is a process that not only rests on mutually reached agreements but on the values of religion and community which are closely held by the society. He opines that settlement is not an avoidance mechanism but a process of reconciliation in which the anger of broken relationships is confronted rather than avoided. It calls on substantive community values as opposed to reducing the social function to one of resolving disputes. ADR is therefore wholesome and restorative in nature as it not only focuses on the dispute at hand but the restoration of the relationships which are broken as a result of the dispute.

A case in point can be located in our own jurisprudence. The case R v Juliana Mwikali Kiteme & 3 Others (2017), aptly highlights the judiciary’s intent in promoting TDRMs. In this case, the accused persons were charged with the murder of one Musyoki Mwagani in Kitui. The accused pleaded not guilty to the charge and were subsequently released on bond as the prosecution did not have enough evidence to secure a conviction. They, however, remained in custody due to poverty. The prosecutor made an application to the court to discontinue the proceedings owing to reconciliation and payment of blood money under Kamba Customary law. The court thereafter proceeded to discontinue the proceedings owing to the provisions in Article 159(2) of the Constitution of Kenya.

The particulars of this case reinforce the conception of justice that is opined by Andrew McThenia in his article ‘For Reconciliation’. He states that justice is not something that the government gives but something that people give to each other. The court in this instance did not settle for less than the ideal but instead took cognisance of the resources that were available to the accused and ultimately sought to apply Article 159(2). Therefore, in as much as ADR achieves settlement between the parties, its wholesome nature ultimately leads to justice.

In another case R v Lenaas Lenchura (2011), the accused, a veteran of the second world war was charged with murder after stabbing and killing the deceased. In this case, the court took judicial notice of the fact that the quarrel was over access to water which was a scarce commodity in Samburu. The quarrel that arose was, therefore, a veritable life and death struggle. The learned judge in his judgement considered the accused’s advanced age and lifted the sentence that was earlier imposed. Instead, the accused was required to pay compensation of one female camel as dictated by their customs.

This case considered the social conditions that existed in the community and sought to repair the damage that resulted due to the quarrel as opposed to a deterrent sentence which was unsuitable due to the accused’s advanced age. Consequently, the case highlighted the fact that adjudication, as a way of dispensing justice cannot take a ‘one size fits all approach’. If applied in this way, then what would be achieved would not be termed as justice. What was suitable was the application of Article 159(2) which allowed the court to resort to TDRMs, ultimately achieving justice.

The 2010 Constitution was revolutionary with respect to the place of Alternative Dispute Resolution Measures in the Kenyan legal system by obligating judicial officers to be guided by and to promote its Article 159 principles. This was a deliberate attempt by the Kenyan people to change the conception of justice from one which can only be attained in court to one which we owe to one another when we agree and mend broken relationships that arise as a result of a dispute. Developing jurisprudence also shows the courts intend to promote these systems for two reasons: due to the infrastructural inadequacies of the formal justice system, and due to its restorative nature. This growing recognition requires among other imperatives, the protection of these methods to ensure consonance with Constitutional principles.

Private Mediation Agreements: Ordinary Contracts versus Section 59D of the Civil Procedure Act

By Wabia Nganatha Karugu

Private mediations are one of the two main forms of mediation in Kenya. Private mediation does not necessitate the involvement of the court. The parties to the conflict approach a mediator to mediate the dispute, such as through a private body, for instance, Strathmore Dispute Resolution Centre (SDRC). The second form of mediation is Court Annexed Mediation (CAM). According to The Judiciary’s guide on ‘Court Annexed Mediation’, CAM is ‘a mediation process conducted under the umbrella of the court’ and involves the screening of cases already filed in the High Court. The screening, done by the Mediation Deputy Registrar (MDR), is to determine whether cases should undergo mediation instead of the traditional court procedure. Private mediation does not necessitate a screening process as the parties themselves arrive at a decision to seek mediation. 

It is important that private mediation agreements (PMA) are binding, as it is one of its main selling points to persons seeking alternative dispute resolution (ADR) mechanisms. The binding essence of mediation is crucial for two key reasons. Firstly, this is attractive to persons involved in the mediation as they are assured that the party they are going head-to-head with will be bound to comply with the settlement they arrive at. Mediation hence will not appear like a frivolous form of dispute settlement. Secondly, the binding nature of the agreement is appealing to The Judiciary as a whole. Parties to a dispute find the binding nature of court decisions appealing, but with the alternative of a cheaper and less time-consuming form of dispute resolution, parties will opt for mediation instead. Mediation thus plays a key role in minimising the cases flooding into courts every day.

In Kenya, PMA’s binding principle is given legal backing through two means: ordinary contracts, and Section 59D of the Civil Procedure Act respectively.

Most persons enforce PMAs through ordinary contracts in Kenya. The same is true for a plethora of countries, such as India. Judge Mathews N. Nduma— in the 2012 Kenyan case of Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers— stated that the chief way that mediation settlement agreements are made enforceable is through ordinary contracts. This seems rather advantageous to the extent that ordinary contracts are easy to conclude. Like many cases before and after it, the 2017 case of Leo Investment Ltd v Estuarine Estate Ltd highlights that at the very foundation of a contract is its fundamental elements of offer, acceptance and consideration. The Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers case further highlighted that PMAs (albeit within the context of trade disputes) should be recorded in writing and signed by the conflicting parties and the mediator. The same is likely transposed to PMAs in general where parties wish to make them binding through an ordinary contract. Ordinary contracts are thus an easy alternative as their requirements are quite straightforward.

Section 59D of the Civil Procedure Act is the other way through which PMA’s binding essence receives legal backing. Section 59D provides that ‘all [private mediation] agreements entered into with the assistance of qualified mediators shall be in writing and may be registered and enforced by the court’. Not only is the PMA registered, but the court is empowered to enforce it; that is, to coerce parties to carry out their end of the bargain where they previously failed to. This Section is a practical realisation of the binding nature of PMAs. 

However, Section 59D is the less frequently used method of creating a binding PMA, as most persons enforce PMAs through ordinary contracts. The advantages of ordinary contracts were highlighted above. Yet, as stated by Judge Nduma, ordinary contracts are not without their flaws. An ordinary contract is an unsatisfactory means of enforcement as it ‘leaves the party precisely where it started in most cases, with a contract it is trying to enforce’. In other words, as simply stated by Jonathan Rodrigues, where PMAs remain an ordinary contract ‘a breach of the settlement agreement in private mediation cannot be resolved through a simple enforcement petition in the court of law…, but has to be dragged back to the corridors of the court, and initiated as a case of litigation’. Section 59D, to this extent, is the more efficient means parties should use due to the ease in which enforcement is possible. 

Notably, Section 59D is rather broad. Unfortunately, there exist no rules governing its implementation and thus an analysis of its intention is crucial.

There is no clear-cut procedure on how the written PMA must be registered and enforced by the court. Nonetheless, borrowing from Croatia’s law, Section 59D’s wording may mean that the PMA will be registered as a judgement within the court registry. Section 13(5) of the Croatian Mediation Act of 2011 provides that one such way a settlement agreement may be drawn up is through a court settlement. This is arguably in the scope of Section 59D considering that a court settlement involves parties coming to an agreement outside of court, and thereafter coming before the court in order to read the settlement into the official court record. Thereafter the court will approve the settlement, and enforce it as a judgement, resulting in the PMA ultimately being registered by the court. Owing to the fact that it has been registered and enforced as a judgement, the court thereby has the power to follow up where no observance of its terms takes place on the part of one or more of the parties involved through an enforcement petition. The United Kingdom (UK) also allows for parties to embody their PMA as a court judgement.

Alternatively, the PMA could be enforced just as a mediation agreement resulting from CAM is. The Judiciary requires that the latter agreement should be filed with the MDR, who will adopt and enforce it as a judgement or an order of the court. This is a viable option for Section 59D, whereby PMAs would be forwarded to the MDR for registration and enforcement as a judgement or an order of the court. Unlike the ‘Croatian model’ referred to above, parties would not need to go before the court. Instead, parties would go through the procedure highlighted under Section 14 of The Mediation (Pilot Project) Rules, 2015. 

Section 14(1) of The Mediation (Pilot Project) Rules, 2015 requires that a mediation agreement ought to be signed by the parties and filed by either of the parties with the MDR ‘within ten days of conclusion of mediation’. Section 10(2) continues to read that ‘any agreements filed with the [MDR] shall be adopted by the court and shall be enforceable as a judgment or order of court’. Court referred mediation in the UK is also enforceable as a court order (whilst PMAs are enforceable as court judgements). Thus, perhaps a practical option is for all mediation agreements, both PMAs and those arising from CAM, to be directed towards the procedure under Section 14 of The Mediation (Pilot Project) Rules, 2015. This option’s selling point is particularly the avoidance of a court appearance (which would be a waste of time for the parties and the court, as well as a waste of the court’s resources).

There is a concern of confidentiality when it comes to Section 59D. Mediation is prised for its confidential element; in that communications during the mediation process are never disclosed in court proceedings. Yet, as stated by Karin S. Hobbs, ‘this confidentiality protection will not apply where disclosure is necessary in order to implement or enforce a mediation settlement’. 

Ultimately, the challenges that will accompany Section 59D’s realisation are a worthwhile sacrifice. Section 59D will allow for the simple enforcement petition before a court, as opposed to lengthy case litigation that PMA’s as ordinary contracts result in. Section 59D is a marked gain in Kenya’s legal regime as far as mediation is concerned and is key in mediation’s popularity across the country due to its ease in enforcement.

ONLINE MEDIATION IN THE FACE OF COVID-19

By Malcolm Kibati

Editor’s note: You can now submit your disputes for online mediation through sdrc@strathmore.edu.

In a matter of weeks, the COVID-19 virus has escalated from being a bottom-corner news item and subject of a barrage of baseless fear-mongering WhatsApp chain messages to a global pandemic that has claimed thousands of lives – albeit still maintaining the often misleading chain messages. There has been a call by various international organisations, most notably the World Health Organisation (WHO) to slow the spread of this virus as much as possible by avoiding most, if not all, human contact –  known as social isolation – and further to avoid being outside of the home at all. Governments worldwide have heeded this call, encouraging businesses to close shop and employing measures such as curfews to further this purpose. Currently, time seems to have stood still for some; not being able to go to work or attend class means that life has come to a halt for an indefinite period of time.

However, the truth is that, for many, the privilege of remaining in stasis with the rest of the world and waiting out the pandemic is one that they cannot afford, and which will become even more expensive with time. Many service-providers have taken their services online, with restaurants taking orders online and performing doorstep delivery, and even supermarkets are fulfilling their customers’ daily needs using various delivery apps. The digital evolution has forced its way through the door of many markets out of sheer necessity. One might then ask whether this model can be extrapolated to the resolution of disputes that occur during this period. If one considers there to be a causal relationship between crisis and development, then it would be fitting to theorise that the COVID-19 pandemic would and should birth a new method – or, medium – of resolving disputes that takes into account the current state of affairs. Quite fortunately, there are already mechanisms in place that can take on this mantle.

Online mediation is exactly what it sounds like – the mediation process taken online. It forms a part of the larger global phenomenon known as online dispute resolution (ODR) which is slowly encroaching upon dispute resolution mechanisms the world over. This is for good reason, as it takes all the benefits of the internet and melds them with the already very flexible systems of ADR, creating a mechanism that boasts dispute resolution that can be faster, more affordable and overall more efficient.

Online mediation dates back to the late 1990s, when a pilot program was conducted in partnership with eBay by Katsh, Rifkin and Gattenby. The program involved the mediator utilizing the same skills and strategies that he would offline, but with email as the medium to communicate with the disputants. The program was indeed of adequate success to the team conducting it and lay the groundwork for subsequent online mediation programs. This became necessary at the time, as the 1990s were a period characterized by the expansion of e-commerce and the extension of the worldwide web into commercial transactions. Face-to-face meetings were becoming less of a plausible reality taking into account the considerable distance that parties would likely be from each other.

Albeit under different circumstances, physical meetings in the time of the COVID-19 pandemic are similarly impracticable. It is no secret that mediation is in many ways contingent on the physicality of its process; mediators have indeed had the option of conducting mediations online for the last thirty-or-so years, but face-to-face meetings have instead been opted for because they create an environment under which effective resolution of the matter can be achieved. This may even be attributed to the client preferring to be in the physical presence of the mediator in order to foster feelings of trust. Sad to say that this luxury of choice is one that can no longer be enjoyed by either mediators or their clients, and the current medical climate calls for the facilitation of mediation via online and virtual means.

Fortunately for mediators, the task – while requiring minimal technological proficiency – is not as daunting as many believe it to be. The technological advancements of today have allowed for there to be a multitude of mediums through which mediations can be carried out online, including, but not limited to, email communications, teleconferencing and videoconferencing. Zoom, in particular, is an especially popular video communications platform in the professional setting which allows for meetings to be held online through a virtual boardroom setting. The mediator can choose whichever platform best suits the needs of the client, highlighting the flexibility which is supposed to be the very cornerstone of mediation and ADR at large.

It goes without saying that the transition will involve some adjustment and growing pains; this is especially true for more experienced, less tech-savvy mediators. However, it is undeniable that this is a change that is well overdue. Perhaps this is the nudge into the deep-end that is globalisation that technology-resistant mediators need to adapt their practice to the times. Regardless of any apprehensions held by actors in the ADR sector, dispute resolution – unlike many other services – cannot remain suspended in time.  If the maxim “justice delayed is justice denied” is to be followed, the service of justice should not even be slowed down let alone halted completely. Let the mediators of today utilise the window of opportunity created by the ongoing crisis to evolve the mediation practice, ushering their clients to conflict resolution on the other side of COVID-19.

The Light in Her Eyes

By Nabwile Sifuna

Suit and tie, and as I have been doing for the past few months, I dressed sharply to boost my confidence and hide the shakiness. Who would dare think a young lass with an actual ‘male’ suit, tie and briefcase is even remotely shy? This would be my first day of the many in my judicial attachment. The day I would, so gladly, start applying all the concepts I had taken two years to wrap my head around. Most importantly, I would walk down the corridors of justice and be of help in dispensing this justice that had driven me to law school after great contemplation.

After taking almost three bus rides to Kibera Law Courts, I almost regretted having done the most. I undoubtedly stood out, but isn’t that exactly what I was going for from the get-go? Meeting my equally prepared classmates, I could see the passion in their eyes- a passion to get the most out of this experience. This would, you’d assume, be what we’ll be facing after finally graduating.

The days saw us remove our neatly pressed coats and put on dust coats as we ventured the depths of the registries. Quite often, I would need a handkerchief from the cold I was coming down with. Old files sat sadly over each other, looking hopeless from the lack of attention. Cases dating back to 2000 were present and seemed to be forgotten. A quick perusal surprised me at the nature of cases still being dealt with after so long. Cases ranging from sexual assault to traffic offenses. The fragileness of some would have me wonder why they were so deep into the archives.

A part of my soul sank a bit deeper with every passing day during this period. The glow I had when I was an enthusiastic first-year student could barely be noticeable. Every morning I would meet sad, frustrated and angry faces along the corridors. This is not to say that one would be surprised to be met by somber moods at the hospital corridors as well, but would you not wonder why the rooms that handed out justice had little to no life? Catching instances of people throwing their hands up in the air after trying to comprehend what a registry clerk had just explained for the fiftieth time was not rare. With less than twenty minutes to the deadline of filing some documents, I would see some advocates and pupils pushing and shoving in the queues, handing in incomplete documents and being impatient with the officers- just trying to barely survive. Was this what all the hard work and tears in school would boil down to?

Moving into the courtrooms under the supervision of a magistrate carried some hope with it. I would finally get to see all my theory and legislative knowledge being brought to life by the judicial officer. Having put extra attention on my dress code, I was slightly surprised to see the lackluster way that some advocates, and sometimes the prosecutor, dealt with their attire. Equipped with my pen, paper, brains and emotional intelligence, I sat right at the feet of the magistrate, ready to receive any overflowing grace and wisdom. After quite a number of mentions, I really wondered whether this is all I would be sitting through for the next one month.

Cases dragged on and on. The court diaries were full to the brim. Witnesses weren’t showing up. Police files never seemed to be available. The air reeked of hopelessness and desperation from all the stakeholders in the room. Some accused persons daringly cursed as they were pushed out of the court after trying to plead for a closer date of hearing only for one to be availed three months from then. Fights broke out a couple of times within the court grounds and I thank God for being at the right places at all times. Advocates insensitively tore down vulnerable witnesses such as children, seeing couples on opposite sides of the boxing rings with nothing but the desire to win a case being closely watched by their children, investigating officers who did the bare minimum at handling very crucial details… All this had me in my magistrate’s chambers on the last day of our judicial attachment.

“Are you happy with what you do?” I found myself asking her. I could not be imagining the long silence that followed that question. After what seemed like her having a replay of her entire journey in the legal profession, she said yes. That although the system was very slow and bureaucratic, she was happy because she always did her best… That sounded very cute, but I thought over it and really had no ounce of excitement about the idea of ending up there. One of our legal practice classes had seen us visiting law firms. Exhaustion, frustration and war spirit perfectly marinated in sophistication, legalese and top tier lifestyles. I mean, the later list looks inviting, but at what price, and for how long? Somewhere on my way up Maslow’s hierarchy of needs, I know I would be unwilling to pay those dues.

Receiving a call from reality, I realised how fast time was passing by. I started getting worried at how I was already halfway through my law degree with no zeal to practice what I had learned so far. In my confusion, an older friend of mine proposed I attend the 2019 International Mediation Conference that was hosted by the Strathmore Dispute Resolution Centre (SDRC). None of my excuses held enough water for her not to register me for the same and on

the 30th of May, I was seated in the university auditorium. “I can see the fire in your eyes. The fire of desire for justice” … That was retired honourable judge Ann Claire Williams. It felt like she was speaking directly to me, yet I could bet that the past six week’s interaction with this country’s version of access to justice said otherwise. My attention was caught and retained.

I would be lying if I said that that was my first encounter with the concept of Alternative Dispute Resolution (ADR) or mediation in particular. However, this was the first time I was looking at it not as an ‘alternative’ but as a dire need. Not only for my future career path and overall self-actualisation but for the very humanity and dignity dragged in the mud by the structural mishaps of almost an entire dependence on litigation as a form of dispute resolution in this country. The threat-filled statements, “I’ll sue you” and “see you in court” made me cringe a little bit every time I heard a layman- or anyone else for that matter- uttering them with so much conviction.

As the session proceeded and the judicial spokesperson of Rwanda- Justice Harrison Mutabazi-together with our very own Dr. Francis Kariuki spoke of the success of mediation in Rwanda and the community-based mediation respectively, my heart swelled at the entire concept. I thought over the shuddering and hostile atmosphere in the courtrooms- one winner one loser or two losers. Either way, bonds either worsened or broken. However, with mediation, the idea that it is a round table conversation with people putting on the same hats and being in control of the process ensured that not only do the parties get results that work for all of them but also that the bonds were mended and/or improved.

The then dean of the Strathmore Law school, Dr. Luis Franceschi, gave a word that made me aware of the subconscious bias I had developed through my judicial attachment: Stop reinventing the wheel, improve on it. With this, came the response I got from my magistrate and the Chief Justice’s speech on the current state of the judiciary. Much effort is being applied to deal with the bureaucracies and heal from the wounds caused by previous (and current, I’d argue) political influence in the machineries of access to justice. Judicial independence in theory and as probably envisioned by the 2010 Constitution of Kenya was a wonderful idea that as for now, remains in its budding stage. The problems that infested the litigation regime could be, to a significant level, be remedied by the acceptance and application of alternative dispute resolution.

Further venturing into the ideas of mediation and the use of artificial intelligence, my curiosity of all the possible solutions and ways to have this access to justice dispensed in the easiest and most efficient ways flooded my mind. Mr. Gerald Abila from Barefoot Law in Uganda gave his account of changing the narrative and working with the moving times. It might seem that the law is very slow to adapt to the fast-changing needs of the society- sentiments that I associate myself with. The constant jokes I had heard before of “advocates lying in Jeevanjee Gardens in their suits and ties because of no jobs and the flooding of the legal field” held no water at this point. The exploration of all the areas that are upcoming in the law, the continued rise in the preference for mediation and slowly but surely changing attitudes and public awareness of the law said the contrary.

Let’s just say that I sat eagerly in my first mediation class with the same or slightly more fire and ambition than I did in 2017. Knowing well the depths I would have to go through in litigation, the hurdles I would have to negotiate in mediation and the perfect hope of marrying all these ideas into the self-actualisation I would get from not only better corridors of justice, but also more round tables where relationships were repaired and strengthened in the shortest time possible and in the easiest of ways.

Artificial Intelligence and Alternative Dispute Resolution

By Wabia Nganatha Karugu

Artificial intelligence (AI) is the development of systems that have human-like intellectual processes. These processes include that of reasoning, deriving meaning, and learning from past experiences. An emerging issue is its possible relationship with the field of law. ‘Artificial intelligence’ has been the buzzword within scholarly works and news articles, following successful studies that prove the worth in fusing the two.

AI’s utility in law can be exemplified in Dr Nikolaos Aletras’ research study. Dr Aletras successfully proved that AI could ‘be used to prioritise cases most likely to involve human rights violations’. This was based on the AI system’s ability to envisage the finding of cases within the European Court of Human Rights. The system was astonishingly 79% accurate.

Such systems are useful within law’s narrower silos; including alternative dispute resolution (ADR). AI’s utility in this specific field will be exemplified below.

Similar to Dr Aletras’ research study, Benjamin Alarie (co-founder of Blue J Legal) notes technology’s ability to predict the verdict of a case. According to Alarie, this involves the system issuing the outcome of the case following lawyers answering questions about the matter-at-hand. Additionally, the system examines cases and legislation, in order to arrive at a nearly accurate prediction. This allows parties in a case to rationally choose ADR following a displeasing prediction of the court’s possible ruling.

Additionally, Marvin Huberman⸺ president of the Alternative Dispute Resolution Institute of Ontario⸺ posits that persons involved in an ADR matter may feel more at ease disclosing sensitive information with an artificial intelligence device, as opposed to an individual. This is owing to the fear of being judged by an actual human being, which is an inclination that an AI device would not have. This view is not implausible owing to a plethora of AI programmes that effectively identify and react to human emotion. One such example is Hanson Robotics’ creation: Sophia. Sophia was created in 2015 to build relations with people through social interaction. It is therefore not bizarre to predict a future that has AI that communicates to parties in an ADR case.

Moreover, William Horton notes that both ADR and litigation cases involve the reading of loads of documents. While litigation cases are often sprawled across many years, ADR matters are confined to a few days, weeks, or months. It is unlikely for ADR matters to stretch out to more than a year. This means that arbitrators, mediators, and any other personnel in an ADR case are forced to speed through heaps of documents. AI would be instrumental in perusing through large amounts of documents and siphoning relevant information that would be key in the matter for ADR personnel to focus on.

What must be explored henceforth is AIs viability to the practice of ADR in Kenya. As previously mentioned, Huberman postulated that persons involved in an ADR matter may feel more at ease disclosing sensitive information to an artificial intelligence device, for fear of being judged by an individual. The sole argument against this applying to Kenyans rests on Kenyans not being well-versed with technology; a notion that the author does not agree with.

According to the 2019 Kenya Population and House Census (KPHC), Kenya’s population is 47.5 million. The International Telecommunication Union (ITU) in 2019 reported that out of Kenya’s total population, there are 46.8 million internet users in Kenya. The Communications Authority of Kenya stated in 2018, that there were 46.6 million active mobile subscriptions in Kenya. Other indicators of Kenya’s technological prowess is evinced by GSMA Intelligence indication: in Kenya, four in five mobile phone owners utilise mobile money to receive and send money to friends, family, employees; as well as to pay bills. Moreover, the World Intellectual Property Organization (WIPO) ranked Kenya as the second leading innovation hub in Sub-Saharan Africa in 2019. Since Kenyans are evidently well-versed with technology, it would not be far reaching to argue that Huberman’s postulation may hold.

Horton provided that AI would be useful in going through large amounts of documents and siphoning relevant information that would be key in the matter for ADR personnel to focus on. This will ensure that ADR matters are concluded in a timely manner, allowing for more ADR matters to be carried out by an ADR Institute. The faster ADR matters are concluded, the more matters can seek the recourse of ADR as oppose to the formal court system. This could potentially be part of the solution to one of the court’s biggest plagues: case backlogs.

Technology indeed could bolster ADR, making it more efficient for all persons involved in the case.

Promoting the Practice of Traditional Dispute Resolution Mechanisms in Kenya

By Nyaga Dominic

According to Dr Francis Kariuki, traditional dispute resolution mechanisms (hereinafter ‘TDRMs’) are methods that local communities have applied in managing disputes since time immemorial and have been passed from one generation to another. For a very long time now, they have been hailed for being cheaper, faster, less procedural, informal, flexible and less time-consuming. Sheikh Ahmed Set (HSC), relying on the lessons from the Rwandan community-based gacaca courts strongly advocates for TDRMs as a very efficient way of solving disputes and expeditiously dispensing justice.

Among more than one Million Tutsis that were killed in a span of 100 days in the 1994 Rwandan genocide were judges and other key judicial officers. With the destruction of critical judicial infrastructure at the time, the wheels of justice ground slower and it took longer to bring the alleged criminals to book. After the genocide came to an end, the Rwandan prisons were filled to the brim. In fact, by 1998, around 13, 000 prisoners occupied the prison spaces. The prison spaces were not adequate for this humongous number of prisoners. As days passed on, the number of alleged criminals increased, and the Rwanda Patriotic Front (RPF) knew that there was an urgent need to forge a new approach that would address the undesirable state of affairs. It is on this vein that the Customary gacaca courts model was introduced in a bid to speed resolution of cases by elders. Besides the challenges and formalities that riddle the gacaca model, since the year 2005, over 12,000 such courts have tried an estimate of 1.2 million cases in Rwanda thus heralding the critical place of TDRMs in the justice system. 

Kenya National Council of Elders Chairman Mr Phares Ruteere (OGW) agrees with the pertinent role that elders and traditional courts play in the society with regards to solving disputes and reducing huge case backlogs in the courts. Furthermore, he believes that the place of traditional courts, as a consequence of formal laws and relegation of elders to the lowest echelons in the ladder of justice, continues to subject TDRMs to extreme aversion. Given the history and set up of traditional African societies, TDRMs should be a general rule and first site of resort rather on matters justice rather than an exception. Kenyan communities, like most communities around the world that were subjected to colonial rule, were guided by TDRMs even before the advent of the colonialism. With no formal laws and courts at the time, the African communities resorted to TDRMs to redress injustices to the afflicted persons in the society. Social cohesion was obtained through custom and consensus, not only within families but within clans and, as far as possible, between clans. The groups relied largely on traditional precedent in solving disputes which led to peace, unity, and reconciliation within the community.

The colonial epoch in Kenya marked the weakening of African customs. Professor HWO Okoth Ogendo rightly argues that during this time, TDRMs and customary law, in general, underwent through a long period of expropriation, suppression and subversion. Over the years, TDRMs have been belittled and continues to be subjugated to formal laws. Currently, the Kenyan courts are guided by African customary law so far as it is applicable and ‘is not repugnant to justice and morality or inconsistent with any written law.’

Of worth to note is that TDRMs are now formally entrenched in the Kenyan jurisdiction in light of the constitutional dispensation of 2010 and various Statutes such as Magistrates’ Court Act No. 26 of 2015, National Cohesion and Integration Act No. 12 of 2008, Criminal Procedure Code (Act No. 12 of 2012). Further, in exercising judicial authority, courts and tribunals are to be guided by inter alia TDRMs. These provisions allude to the fact that customary law forms part of the law of Kenya, and since TDRMs are embedded in the customs and practices of communities in Kenya, they form part of the customary law of those communities and are applicable in settling disputes.

Despite formal recognition coupled with a constitutional mandate for promotion of TDRMs, difficulties still arise as to the practicability of the application of these mechanisms. For instance, TDRMs remain uncodified. Difficulties, therefore, arise for courts to subject TDRMs to the Constitutional standards set out in Article 159(3) especially when parties are required to present evidence of the existence of certain doctrines undergirded by TDRMs. Lack of codification, precedents and guidelines on TDRMs act as an impediment to access justice especially when a judge prefers to use formal laws due to inadequate jurisprudence on TDRMs.

Furthermore, a judge does not necessarily originate from a traditional community whose case he/she is presiding over. Often, judicial officers borrow models from other areas and use them as standards to evaluate customary laws or TDRMs. This approach leads to injustice and subjugation of customs. Consequently, the position goes contrary to the rationale for the recognition of TDRMs in Kenya as the need to promote access to justice, and respect of the diverse cultures of Kenyan communities. This, therefore, calls for a need to develop a jurisdiction that not only promotes TDRMs but also guides judges towards applicability and implementation of TDRMs.

To this effect, the author proposes Courts with an adopted elders jury system. All cases that are presided over by the elders shall not be stripped of their informality and gowned with the monotonous and usually unnecessary formality. Cases that cannot be handled by elders and demand the attention of the courts are the ones that will demand elders to sit in through the proceedings as members of the jury. In addition to the judge who is an expert in written laws of the land, 2, 4, 6 or 8 elders shall join the court to advise accordingly on matters touching customs and the culture to which the case is related to. For instance, it is agreeable that land cases involving historical boundaries cannot be decided solely by judges without the indulgence of the elders who constitute the highest socio-political institution in many societies. As such, there full-time presence in courts (not invited only as witnesses) will play a critical role in a just determination of cases informed not only by the law but also by the customary norms and an understanding of the nature of the societal disputes.

Further, to render TDRMs substantively applicable in the Kenyan jurisdiction, there is a need to introduce registration of all decisions settled by TDRMs. Although customary laws are dynamic and can change according to new trends and social norms, the function of codification will be to unify the customary law and enhance the chances of reliance on principles of customary law in solving disputes.  African customary law is critical in adjudicating disputes within traditional disputes. Codification and provision of guidelines will govern dispute resolution in a modern ‘customary’ dispute resolution forum thus achieving the said rationale of TDRMs: expeditious and efficient access to justice, and promotion of TDRMs pursuant to Section 159(2)(c) of the 2010 Kenyan Constitution.

Mediation as a Tool of Solving Sports Disputes in Kenya

By Shirlene Ndenga

Mediation is a voluntary, non-binding dispute resolution process that uses a neutral party to assist the parties to reach a mutually agreed settlement. It is therefore safe to say that the aim of mediation is to provide a binding solution that satisfies both parties. There are several  dispute resolution bodies that offer mediation in order to resolve sport disputes. These include: – Court of Arbitration for Sport (henceforth CAS), Sports Resolutions in the UK, Just Sport Ireland in Ireland, among others which offer mediation services. For CAS, mediation is governed by the CAS Mediation Rules. This post shall investigate mediation as a dispute resolution mechanism for resolving sports disputes that have occurred in Kenya by focusing on the IAAF scandal of 2018. This shall be done by. firstly, discussing the limits mediation has with regards to resolving sport disputes. Thereafter, the post shall narrow its lens to Kenya by discussing the IAAF scandal.

It is worth noting that mediation with regards to sports disputes expressly excludes disciplinary cases and only settles commercial issues. This is provided for in CAS Mediation Rules which excludes disputes relating to disciplinary matters from mediation. They include: – doping matters, match-fixing and corruption. Reason for this exclusion could be attributed to the gravity of such disciplinary matters which require sanctions that would not be effectively granted during mediation. There are several sports disputes that have successfully being resolved by mediation which include: – discrimination issues, issues arising from commercial contracts and agreements, among others. The resolution of sport disputes includes settlements that consist of unusual remedies such as an apology or an explanation.

In Kenya, the Sports Disputes Tribunal resolves sport-related disputes. It is established under the Sports Act. The Tribunal’s jurisdiction includes: – listening to disputes or appeals from the registrar’s decisions, listening to disputes regarding national team selection and listening to any other matter that parties agree to take before it and agree to let it dispense with. In addition to this, the Tribunal listens to and dispenses with anti-doping cases. The main issue is the fact that the Tribunal lacks its own rules of procedure as its rules are yet to be gazetted; therefore the tribunal is operating without rules of procedure. Even though the Sports Disputes Tribunal is the court of first instance when dealing with sport disputes in Kenya, alternative dispute resolution should not be disregarded. The Constitution of Kenya provides for the use of alternative forms of dispute resolution.  That being said, mediation as a tool of solving sport disputes is not only legal but also efficient. Efficiency is well brought out because mediation is a speedy process that resolves disputes expeditiously and the resolution is followed by performance swiftly.

In 2018, Asbel Kiprop was involved in a doping scandal. This led to a case between the International Association of Athletes Federation (hereinafter ‘IAAF’) and Asbel Kiprop before the IAAF’s disciplinary tribunal. Asbel Kiprop was sanctioned for breaching anti-doping rules for a period of 4 years from February 2018 to February 2022. Keeping in mind the CAS Mediation Rules, this scandal could not be resolved through mediation as it is a disciplinary matter. Therefore, involving the IAAF disciplinary tribunal to resolve the case was a good call as it sanctioned the respondent in the case for doping.

To sum it all up, mediation as tool of solving sport disputes is suitable considering the private manner in which sports are run – mediation is private and confidential.  In addition to this, mediation is advantageous as it preserves and restores personal and business relationships.  However, it is worth noting that the use of mediation as a dispute resolution mechanism is not applicable when it comes to disciplinary cases in sports.

Symposium on the regulation of mediation (Part 4) – It’s not Broken “Yet”, Why Fix it Badly? Three Reasons why Kenya should not Enact the Alternative Dispute Resolution Bill, 2019

By Harrison Mbori

Introduction

Before giving comments on the ADR Bill, 2019, this essay will paint an introductory context for the conceptualization of Alternative Dispute Resolution (ADR) processes in Kenya. These introductory comments will help readers understand the essay’s critical assessment of the Bill in its entirety. The Constitution of Kenya, 2010 recognizes and legitimizes the use of Alternative forms of disputes resolution in Article 159(2)(c) and (3). These provision states as follows in the pertinent part:

In exercising judicial authority, the courts and tribunals shall be guided by the following principles…..

  1. ……
  2. ……
  3. alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause(3);

Clause (3) then provides as follows:

Traditional dispute resolution mechanisms shall not be used in a way that:

  • contravenes the Bill of Rights;
  • is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
  • is inconsistent with this Constitution or any written law.

These are the most important constitutional provisions for any stakeholder interested in assessing the legal underpinnings of ADR in Kenya. ADR has been taunted as beneficial towards access to justice for its many prudential benefits. These modes of ADR have been taunted as great successes in the global North as modes that are expeditious and efficacious in resolution of disputes. In this heritage you would hear concepts such as ‘win-win outcomes’, speedy resolution of disputes, confidentiality, less cost involved, lack of procedural technicality, and the ultimate prudential reason, the reduction of caseloads from courts (docket clearing efficiency). But if these positives are to be experienced, why would you have the same entity that is the source of the problems as the ultimate gatekeeper of such processes? I am mainly concerned here of the judiciary being granted the ubiquitous mandate to “promote” (this a concept borrowed from the human rights obligations framework) these systems. Accordingly, this essay argues that it is this hole that has made us conjure up the ADR bill, 2019 in a hurried and non-incremental manner without appropriate and widespread stakeholder and public participation. The formal systems normally ignore and disregard any forms of regulation outside of binding positive law. This means that the judiciary as part of the State, with the advice and resources from rule of law-based law and development partners, and supported by highly paid consultants have concluded that legislation is the best way to fulfill the mandate of promoting ADR in Kenya.

With this background, this essay will give comments to the ADR Bill, 2019. Overall, the essay argues that the Bill as drafted is a gigantic mistake. Instead, the essay strongly recommends a general policy or administrative framework regulations for this nascent (constitutionally and legislation wise) area in Kenya. Generally, since this area is informal, the less intrusion by State actions the better for the private thriving of autochthonous ADR. Let private contestations and processes stir up the need for any future sector-based policy but not legislative interventions. This essay offers four reasons: First, regulation through an Act of Parliament seems undesirable for a category called “ADR” which is not clearly defined; Second, the Bill is limited, it only seems to capture mediation, conciliation, and traditional dispute resolution: categories it does not adequately define; Third, The Bill seems to intend to monopolize, through state action, the practice of mediation and conciliation; Fourth the judiciary/state is again using this idea of centrifugal force to regulate practices that seek to be non-state related.

  1. Regulating ADR through an Act of Parliament is undesirable

The ADR Bill, 2019 in its long recital states that it is An Act of Parliament to provide for the settlement of certain civil disputes by conciliation, mediation and traditional dispute resolution mechanism; to set out the guiding principles applicable; and for connected purposes. In section 2 it defines “alternative dispute resolution” as “conciliation, mediation, traditional dispute resolution or any other mechanism of resolving disputes in which a person assist parties to resolve a dispute otherwise than through the normal judicial process or arbitration.” Apart from the obvious grammatical error in the definition of ADR, there are couple of issues here that warrant commentary. First, the choice of limiting the named processes to conciliation, mediation, and TDRMs and then opening the definition at the other end to include any other mechanism that involves a person assisting parties other than the judicial system or arbitration seems ill informed. The problem here is the many processes that the Act purports to cover in this blanket manner yet in section 2 it only defines mediation and conciliation. Does this mean that the Act covers organizational models of resolving disputes like the ombudsperson? or the United States of America (US) import called the mini-trial? What about construction adjudication? Or Dispute Review Boards or Dispute Adjudication Boards found in World Bank or FIDIC contracts? Where do you draw the line on this open-ended definition that only manages to define two modes of ADR?  What about quasi-institutional dispute resolution done by chiefs or the police?

Secondly, the Bill defines mediation as a “facilitative and confidential structured process in which parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable settlement agreement to resolve their dispute with the assistance of an independent third party, called a mediator” and conciliation as “an advisory and confidential structured process in which an independent third party, called a conciliator, actively assists parties in their attempt to reach, on a voluntary basis, a mutually acceptable settlement agreement to resolve their dispute.” This is a great attempt at defining these two ADR processes that are normally quite difficult to define and demarcate. The definitions capture the main elements of mediation: voluntariness, confidentiality, neutrality, and mutually acceptable solutions. It also fairly distinguishes mediation from conciliation by granting the conciliator advisory capacity which the mediator does not have. The theory and practice in the global North will support this demarcations and definitions with Americans sometimes calling the conciliator “an evaluative mediator.” The problem for Kenyan purposes is quite simple: these are imports of this definition that are imported, borrowed, and applied lock, stock, and barrel to Kenyan legislation. No one bothers ask whether our economic, political, and cultural realities support this kind of transplantation. This might explain the general failure of these processes in both commercial and non-commercial dispute resolution in Kenya. Many are times mediation students, (judicial officers, lawyers, psychologists, religious practitioners) find this idea of facilitation for mediation quite preposterous. Additionally, the leading book for many years in the Global North of the facilitative model is Harvard’s Negotiation Project Getting to Yes by William Ury and Roger Fisher. The same ideas are transplanted into the Kenya commercial and non-commercial disputational scenes without trainers, practitioners, stakeholders, and ADR students asking questions of cultural compatibility or incompatibility.

Since an Act of parliament will invariably have to define these processes in order to regulate them and the difficulties involved in offering an acceptable and all-encompassing definition, such a process is bound to be riddled by serious controversy and impracticalities. That is why some jurisdictions have limited their legislations to framework legislations (this is a general statute that does not attempt to define or set out any specific standards or modes of regulation of practice but allows for wide self-regulation with a few exceptions) that only cover some regulatory aspects of mediation like mediator confidentiality and its limits especially as a witness in a court of law.

Additionally, the objects of the Bill are also suspect. The Bill in section 3 purports to seek the following objectives, to:  give effect to Article 159(2)(c) of the Constitution; provide an effective mechanism for amicable dispute resolution; promote a conciliatory approach to dispute resolution; facilitate timely resolution of disputes at a relatively affordable cost; facilitate access to justice; enhance community and individual involvement in dispute resolution; and foster peace and cohesion. At first sight these objects look benign but upon close scrutiny it is easier to they are merely platitudes that the Act or generally positive legislation cannot fulfill. The important question here is whether Kenya needs an Act of parliament to achieve these objects. Many would answer that such objectives can be achieved by other means. The objectives can be achieved in many other ways than through the enactment of an Act of parliament that will further complicate private means of dispute resolution that does not need any further intrusion from the State. It is only the Kenyan malady of over-regulation and over-legislation that can explain this kind of undesirable intervention.

It is surprising how little we have learnt from this over-legislation in other areas and the and the dire consequences this has had for the rule of law in Kenya. An example should suffice here in the area of corruption. This is a big social catastrophe in Kenya and the State has enacted numerous statutes to tackle the menace: Ethics and Anticorruption Commission Act 2011; Anti-corruption and Economics Crime Act 2003; Government Financial Management Act 2012; Public Procurement and Disposals Act 2015; Witness Protection Act 2006; Proceeds of Crime and Anti-Money Laundering Act 2009 (revised 2016); Leadership and Integrity Act, 2012; Public Audit Act, 2012; Bribery Act 2016; and the Central Bank of Kenya Act, (Cap 491). Not specifically naming the international treaties dealing with corruption directly and indirectly ratified by Kenya that have direct effect domestically. All these yet corruption sours by the day. Prudentially, legislation does little to regulate behavior in Kenya, maybe even in Africa generally. This is the knowledge that law and development experts had realized in the 1970s when the export of “rule of law” become fanciful.[1]

Then comes section 4 on the scope of application of the Bill. Here the Bill circumscribes its scope by delimiting the kinds of disputes that the Act applies to. The first limitation is obviously arbitration which is covered by the Arbitration Act No. 4 of 1995. Second disputes where tribunals with established jurisdiction under written law have jurisdiction, election disputes, disputes involving the interpretation of Constitution, a claim for a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights; or disputes where public interest involving environmental or occupational health and safety issues are involved. The first general concern here is why election disputes or human rights-based claims and environmental-based claims are exempted? If the resolution of the 2007/2008 elections dispute is anything to go by and if the process involved were to be appropriately called mediation, one wonders why such an exemption is present in the Bill. Additionally, the judicial review power of constitutional interpretation is so strongly in the public domain that it is strange one would think that a private dispute resolution system would proffer a binding interpretation of the constitution. On the bill of rights exemption, many private disputes ordinarily would involve direct or indirect infringement fundamental rights and freedoms in the Constitution and exemption such without another theory of exclusion is also undesirable.

The Guiding principles in section 5 would also warrant some examination. The first principle is voluntary participation in the alternative dispute resolution process and that a party may withdraw from alternative dispute resolution process at any time. Of course, this might conflict with the entire theory of court-annexed mediation which requires good faith participation in the process and not a carte blanche voluntariness. Then section 5(c) has the principle of confidentiality but not for traditional dispute resolution. One wonders what the policy reason for such exemption is. Is it that TDRMs do not warrant the same privacy that the other processes require? Is it that the nature of TDRMs are such that this kind of privacy is undesirable? Then there is the principle of impartiality which also covers mediation. While this is an important principle and if mediation remains just a facilitative process, there can’t be a closed requirement in impartiality since unlike the conciliator the mediator does not offer any advice. Finally, section 5(f) states that a “conciliator, mediator or traditional dispute resolver shall facilitate disputes which he or she is competent to facilitate.” The obvious concern here is what does this principle cover in terms of competency? Does any of these processes require legal competency or moral competency? How do you justify this competency requirement for village elders who resolve disputes of all kinds including criminal disputes? But more importantly how do you monitor compliance with such competency?

2. A general ADR Bill/Legislation will always face serious normative and structural limits.

The Bill faces some normative and structural limits that will make its implementation difficult if not impossible. The first is the substantive limits of what areas the Bill allows its limitedly defined ADR to be used. The Bill says that it will cover “certain” civil disputes. The normative claim of a class of “certain” civil that is not adequately circumscribed is problematic. What about areas that are limited by Acts of Parliament such as the Succession.[2] What about criminal misdemeanors that have been one of the sources of the backlog of cases in Kenya? If the Act does not allow for coverage of such disputes how can it purport to serve the aim of facilitating the timely resolution of disputes? Additionally, the Bill will face the structural limit of legislating or regulating areas that the State cannot easily offer any kind of enforcement. Unless the parties involve the courts, many private individuals and organizations resolve their disputes using mediation in their daily endeavors. Religious institutions through priests, pastors, imams, nuns, rabbis among others are involved in dispute resolution daily. Psychologists, CEOs, managers, life coaches, family therapists, school advisors, and parents organizational group leads will tell you that they resolve disputes of various magnitudes daily.

Section 7 of the Act requires individuals who intend to practice as mediators or conciliators to apply for registration as such to the Dispute Resolution Committee established under section 59A of Civil Procedure Act. The concern here is that outside of court-annexed mediation parties who voluntary seek mediation (see section 12) may not have any contact with the Dispute Resolution Committee and might not be aware of any registered mediators or conciliators. Would such a mediation be unlawful under the Bill? Additionally, these prospective mediators are required to fulfill certain conditions for accreditation and registration. Under section 7(1) the ADR Committee has both powers of accreditation and registration, yet the Bill doesn’t offer any distinction between accreditation and registration. Does this mean that the ADR Committee will also train mediators since accreditation is associated more with training institutions than with regulatory institutions? Additionally, the ADR Committee is empowered to later set up educational and professional qualifications for mediators and conciliators over and above fulfilling the requirements of section chapter 6 of the 2010 Constitution. What would these educational and professional requirements look like? Will it be a university degree? Secondary education? What about the professional requirements? The nature of mediation and conciliation is such that any stringent educational and professional requirements should be highly discouraged. This lends to the realistic limits of legislative rules that cannot be safely implemented on such matters. The idea here should be to lay out broad framework rules that allows everyone who wants to be involved to be voluntarily involved. Let everyone who wants to mediate or conciliate disputes practice it. Let the law recognize the outcomes of these processes unless their violations of fundamental rights and freedoms. This is the pluralism and centripetal model that is applied in other jurisdictions.

3. The Bill/legislation further monopolizes & formalizes justice dispensation

This might be one of the biggest indictment of the Bill all together. Section 6(1) provides that a person cannot practice as a conciliator or a mediator under the Act unless the person has been accredited and registered as a conciliator by the ADR committee. There are three interrelated and vital points here that stem from the 2010 Constitution itself: first, the 2010 Constitution grants the judiciary the central focus when it comes to the dispensation of justice. It is the judiciary that is the repository of legitimate[3] power granted by the people of Kenya to dispense justice. Second, a good faith interpretation of Article 159 (2) above may lead to a conclusion that any other institutions or systems that claims a share of this legitimate power must be linked to, generated, and supervised by the judiciary. The two main contenders for this publicly sanctioned judicial power are the justice dispensing systems generated from African customary law (referred to under Article 159(2) as traditional dispute resolution systems (TDRMs) but which should be appropriately labelled Alternative Justice Systems (AJS)) and religious laws (the best example for Kenyan purposes is Sharia).[4] Third, the 2010 Constitution refuses to constitutionally acknowledge Kenya’s Triple Heritage;[5] that the disputational experiences, especially pertaining to private law, of Kenyan’s are at the confluence the Indigenous, Western, and the Religious. This has led to the elevation of the formal judicial systems over other equally legitimate justice dispensing systems. Consequently, and while lauded,[6] the various modes of ADR above are presented as “principles” that guide the exercise of judicial authority, thus are part and parcel of the judicial mode of justice dispensation. This is the centrifugal force that the constitution creates for the Judiciary as the center of justice with other modes revolving faithfully around it like the planets genuflect around the sun.  

Consequently, this essay argues that the 2010 Constitution of Kenya constitutional architecture and structure on ADR is problematic for an additional historical reason: courts as we know them today are an import of the dubious British venture of colonialism couched as ‘civilization’.[7] The formal courts are a recent phenomenon if we were to zoom out the history of the peoples of Africa by just a few centuries. Thus, the acquisition by the judiciary of the legitimate power over the dispensation of justice should be viewed from the critical angle of transplantation of legal systems by imperial powers for imperialistic and self-serving reasons.[8] While this seems benign and perhaps “a passed by events” argument, the history, legacy, and content of the British mode of justice dispensation is a present reality in Kenya today. The point here is that the judicial system mapped under our Constitution of Kenya, 2010 is far from autochthonous. It is not only a recent phenomenon, but it also completely uprooted and dislodged existing, legitimate, and effective justice dispensation systems that were present among Kenyan nations for a millennia. These are the modes that are now referred to in the Constitution as traditional dispute resolution mechanism (TDRMS) are limited by the Bill of Rights, the dubious notion of repugnancy and positive law.


[1] David M. Trubek & Marc Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) 4 Wisconsin Law Review, 1064-1103.

[2] Law of Succession Act, Cap 160, sec 2(1) (stating that “Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons”).

[3] 2010 Constitution of Kenya, Article 159 (1) (Stating that Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution).

[4] Ali Mazrui, The Africans: A Triple Heritage (Greater Washington Educational Telecommunications Association 1986) (Arguing that the Africa’s experience of State formation should be understood at the confluence of Africa broader triple heritage of history and culture: encompassing the indigenous, the Islamic, and Euro-Christian).

[5] Ibid.

[6] See Kariuki Muigua, ‘Heralding A New Dawn: Achieving Justice Through Effective Application Of Alternative Dispute Resolution Mechanisms (ADR) In Kenya’ (2013) 1:1 Alternative Dispute Resolution, 40-68;Paul Musili Wambua, ‘The Challenges of Implementing ADR as an Alternative Mode of Access to Justice in Kenya’ (2013) 1:1 Alternative Dispute Resolution, 23 (arguing that the Constitutional anchoring of ADR in the constitution emphasizes the importance the drafters of the Constitution placed on ADR).

[7] See Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton; New Jersey, Princeton University Press, 1996) (Arguing that the British imperial power used the courts as the beacons of “civilization”); for an incisive analysis on international law see Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004).

[8] James Thuo Gathii, ‘Imperialism, Colonialism, and International Law’ (2007) 54: 4 Buffalo Law Review, 54 (Arguing that he imposition of colonial rule went hand in hand with the imposition of English rules of property, tort and contract which in turn facilitated the expansion of industrial and commercial capitalism).

Implementing Court Annexed Mediation to reduce Case Backlogs in Kenyan Courts

By Nyaga Dominic

The increase of case backlogs in the Kenyan judicial system has cast aspersions on the effectiveness of litigation in solving disputes. The Judiciary of Kenya notes that the adversarial nature of litigation has continued to plague it with the old age problem of never-ending case backlogs. It is on this premise that more of an emphasis must be placed on alternative forms of dispute resolution, following the call of the new Constitutional dispensation.

Article 159 of the Constitution of Kenya, 2010 has emphasised on alternative dispute resolution (ADR) mechanisms as a key principle of the Judiciary. These mechanisms are essentially a pathway towards expeditious and efficient access to justice in the judicial system, as Kenyan courts are now mandated to encourage alternative forms of dispute resolution aside from the more traditional litigation that features strongly in the Kenyan legal sphere. One such ADR mechanism is mediation.

Mediation, being an ADR mechanism, is a process through which persons resolve pending issues with the assistance of a mediator. A mediator is a third party to the dispute, who must be both independent and neutral from the issue at hand. The mediator must also have requisite qualifications to assist the parties to arrive at an agreement through fruitful negotiation.

Indeed, the Judiciary has taken steps to use mediation as a key to reduce case backlogs by adopting the Court Annexed Mediation (CAM) program and rolling it out to eleven pilot counties: Nairobi, Eldoret, Embu, Mombasa, Kisumu, Nyeri, Nakuru, Garissa, Machakos and Kakamega. These efforts began in 2016, with Nairobi being the first country to implement CAM.

The Judiciary of Kenya has defined CAM as ‘a mediation process conducted under the umbrella of the court’ following screening in order to determine whether one’s case could possibly go through mediation.

CAM’s success has been partly contingent on the efforts to sensitise key stakeholders in the judiciary as to its workings and implementations; including advocates, mediators and country leaders. It has indeed been partially effective in reducing case backlogs in civil cases, as was prophesied by judges including Justice Aggrey Muchelule.

This notwithstanding, the continuous delay in determination of cases by courts calls for a more rigorous and perhaps novel employment of a mediation approach as a supplement to the already existent CAM.

Certainly, there are some areas of law that are more litigious than others and contribute immensely to the backlog. For instance, parties lodge civil and succession matters very frequently which turn into lengthy court proceedings before determination. This can be remedied though a Mandatory Extra-Judicial Mediation Attempt (MEJMA) for these litigious matters, which represent a large portion of legal disputes in court.

MEJMA will entail parties tendering evidence to show that mediation was sought in the presence of a neutral and impartial third party before resorting to a judicial trial. Only then will the court agree to listen to the matter-at-hand. This is sure to drastically reduces the huge case backlogs in the courts, as a great number of the cases will be sorted through MEJMA.

The challenge with this approach, however, is that some parties may lament the lack of requisite resources to facilitate the mediation process. To counter this, the judiciary can considerably regulate initial and final stages of the mediation process, with legislative provisions intending to encourage the parties to reach an agreement and avoid the courts. During these stages, any document relating to the mediation procedure, for example, ought to be exempted from fees. Parties who agree to go into mediation may be entitled to legal aid depending on the complexity of the dispute. They may also get monetary incentives such as mitigated costs upon success of the mediation process.

This approach is used in Italy. The Legislative Decree no. 28 of 2010 provides some tax incentives for mediating parties. The mediation agreement is exempted from any registration fee. In the event of settlement as a result of mediation, each party is granted a tax credit depending on the fees paid by the other party. These steps have seen more people embrace mediation as a way of resolving disputes outside the courts.

Aside from the proposed MEJMA as the currently implemented CAM, lawyers too should seek what is best and right for their clients. They must advise accordingly, especially when a matter calls for a mediation settlement rather than the court trial. This will assist in case backlogs. Mediation is a key frontier in dispute resolution and should be viewed as a complementary mechanism to access justice expeditiously and not as a competitor with the courts or practicing lawyers.

As alternative forms of dispute resolution become the norm rather than the exception in dispute management in Kenya, it is high time that supplementary ways are employed to reduce the huge backlogs in the courts.