A caviling dissection of challenges facing court-annexed mediation in Kenya

In Issue No. 83 | Dec 2022, Mediation
December 30, 2022
The constitution of Kenya vouchsafes national values and principles of governance. Social justice is one of the values enshrined therein in Article 10 of the constitution. The Judiciary is given the authority by the constitution to administer justice. In exercising judicial authority the courts and tribunals are to be guided by an array of principles one of them being to promote alternative forms of dispute resolution such as adjudication, reconciliation, mediation, arbitration and traditional dispute resolution. These alternative forms of dispute resolution were included as means of enhancing access to justice among Kenyans and preventing overreliance on the court processes. Key to this paper is mediation as a form of alternative dispute resolution. The author contends that although mediation has been hailed as one of key components of solving disputes in Kenya; there are some roadblocks towards full enhancement of court annexed mediation in Kenya. It is against this backdrop that this paper delves on the challenges with a view of coming with tangible solutions. Overcoming these challenges will have positive impacts in making mediation a preferred tool of alternative dispute resolution.

Interaction among humans is inevitable1 and no man can ever survive without relating with fellow men. Thus, sentiment such as ‘no man is an island.’ In South Africa, Ubuntu Philosophy has it that ‘I am because we are.’With interaction among different persons from different social, economic and political background it is beyond peradventure that there will be times when disputes will have to arise and human conflicts as well in equal measure. James Ngotho argues that: ‘In a perfect world there would be no conflict, but the world today is far from perfect. In the society we live in today, conflict arises everywhere. Conflict arises because of various reasons including but not limited to differing opinions or lack of respect for others’ opinions which may also lead to a conflict’2.

It is incumbent for such disputes to be solved in an amicable manner to ensure that there is peace for if the disputes aren’t solved it will be a source of antagonism and unnecessary loss of property and resources3. Coming up with means of making sure that such disputes are solved in a timely manner is called for.4 Solving such disputes should be in a setting where parties agree with the decision and the process is transparent not forgetting the process being cost-effective.5 The concept of access to justice has been viewed more from a formal viewpoint. In the sense that, justice can only be served in court and not in any other sphere.6

This view has changed courtesy of the entrenchment of alternative dispute resolution into various laws. Moreover, Kariuki Muigua notes that courts over time have been inaccessible for many who wish for their cases to be addressed. He notes, ‘these days the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, ignorance, procedural formalities and the like. These are some of the challenges encountered by a person who refers a matter through the complex and costly procedures involved in litigation’7.

This is where the various forms of alternative dispute resolution come into the picture. The forms of alternative of dispute resolution include: mediation, adjudication, traditional dispute resolution mechanism, conciliation and settlement conferences. These forms are meant to administer justice and promote access to justice. Of concern to paper is mediation as a form of alternative dispute resolution.

Mediation has been referred to as, ‘“the interaction between two or more parties who may be disputants, negotiators, or interacting parties whose relationship could be improved by the mediator’s intervention. Under various circumstances (determinants of mediation), the parties/disputants decide to seek the assistance of a third party, and this party decides whether to mediate. As the mediation gets underway, the third party selects from a number of available approaches and is influenced by various factors, such as environment, mediator’s training, disputant’s characteristics, and nature of their conflict. Once applied, these approaches yield outcomes for the disputants, the mediator, and third parties (other than the mediator)”.8

Mironi, in a similar vein, defines mediation as an informal process, where a mediator who is a third party with no decision-making authority attempts to bring the conflicting parties to end their conflict by agreement. A mediator is not part of the conflict, but an outsider who strives to ensure that the process of the conflict resolution turns out to be a perfect picture in the estimation of the parties.9

The Civil Procedure Act defines mediation as an informal and non-adversarial process where an impartial mediator encourages and facilitates the resolution of a dispute between two or more parties but does not include attempts made by a judge to settle a dispute within the course of judicial proceedings.10 According to Kariuki Muigua, mediation entails negotiation in which the assistance of a third party is employed and the third party who is not party to the proceedings aid the two parties in coming up with an outcome without imposing his or her views on the parties.11

Having defined mediation as a concept,12 this paper proceeds as follows: the next section of this paper gives an overview of court annexed mediation in Kenya so as to get the general overlook; the third section lays out the challenges facing court annexed mediation in Kenya; the fourth part presents solutions to the problems discussed in third part and lastly the paper ends with a conclusion.

2. A cursory look at court-annexed mediation in Kenya

Kariuki Muigua posits that: ‘Court-annexed mediation may arise where parties in litigation can engage in mediation outside the court process and then move the court to record a consent judgment. It has also been defined as the mediation of matters which a judicial officer has ordered to go to mediation or which are mediated pursuant to a general court direction (e.g. a procedural rule that states that parties to a matter make an attempt to settle the matter by way of mediation before the first case management conference’.13

Court annexed mediation from the above quotation by Kariuki Muigua alludes to a process that is undertaken or conducted under the umbrella of the court.14 That means that the court plays a vital role in the process in one way or another in making the parties come to an agreement perhaps in this case indirectly.15

Kariuki Muigua commenting on Court Annexed Mediation observed:

In Kenya, Court Annexed Mediation is conducted under the umbrella of the court. The project commenced in 2015 through legislative and policy reforms to accommodate mediation in the formal court process. These included amendment to the Civil Procedure Act to provide for reference of cases to mediation. Under the Act, the court may direct that any dispute presented before it be referred to mediation: on the request of the parties concerned; where it deems it appropriate to do so; or where the law so requires. Where a dispute has been referred to mediation by the court, parties are required to select a mediator for that purpose whose name appears in the mediation register maintained by the Mediation Accreditation Committee. Such mediation is conducted in accordance with the mediation rules. An agreement between the parties shall be recorded in writing and registered with the court which referred the dispute to mediation; such an agreement is enforceable as a judgment of the court. No appeal lies against such an agreement. The Act also establishes the Mediation Accreditation Committee whose functions include inter alia maintaining a register of qualified mediators and setting up appropriate training programmes for mediators.

The Civil Procedure Rules also allows the court to adopt and implement, on its own motion or at the request of the parties, appropriate means of dispute resolution such as mediation for the attainment of the overriding objective envisaged under sections 1A and 1B of the Civil Procedure Act (emphasis added). Where a court mandated mediation adopted pursuant to the rule fails, the court is mandated to forthwith set the matter down for hearing and determination in accordance with the Rules.16

In 2015 Mediation Rules were enacted to reflect the necessary changes made to the Civil Procedure Act and provide legal bedrock for Court Annexed Mediation in Kenya. Pursuant to the rules each civil suit that has been brought before the court has to be subjected to a mandatory process so as to ascertain whether such a matter can be referred for mediation.17 David Kariuki adds that: ‘Where a case has been referred to mediation after the screening, the mediation Deputy Registrar is required to notify the parties of the decision within seven (7) days. Seven days after receipt of such notification, parties are required to file a case summary in the prescribed form. Such mediation is conducted by a person registered as a mediator by the Mediation Accreditation Committee who is selected by the parties from a list of three qualified mediators nominated by the mediation Deputy Registrar. The rules further prescribe a time limit of sixty (60) days from the date of referral to mediation within which the proceedings should be concluded’18.

3. Quandary facing court-annexed mediation in Kenya

It is beyond reasonable doubt that to some extent Court Annexed Mediation has yielded positive results. This can be looked at from the rate at which disputes referred for mediation are addressed quickly than those of the court system. Another lens which is interrelated is mediation has reduced the backlog of cases in the courts. The backlog of cases has been the bane of the Judiciary and to combat the same the Judiciary came up with programs to entrench alternative dispute resolution systems so as to offset disputes and prevent overreliance on the formal justice system. However, it has to be noted that Court Annexed Mediation has been faced with problems which hinders full entrenchment of Court Annexed Mediation in the country. This section therefore is dedicated to highlight the challenges facing Court Annexed Mediation in Kenya.

a) Inadequate awareness of court-annexed mediation

The success of any project has a lot to do with the awareness of the general public on the same. When people are aware that a project exists they can be able to identify with it and as well explore on ways that they can benefit from the same. This will enable them embrace it fully and make use of it fully. Now contextualize the above sentiments to the subject of this paper, since its roll out in 2015 at Nairobi, court annexed mediation has expanded to 12 other counties in Kenya.19

Therefore it can be argued that more than half of the country is not aware of the process. Further, most court users are not aware of or are yet to fully embrace mediation and other ADR mechanisms. This demonstrates the reason why a high number of matters are still being filed in courts necessitating screening and referral of some of them to mediation. There is a need to create public awareness of the presence and operation of court-annexed mediation and other ADR mechanisms to enable Kenyans embrace these mechanisms and reduce backlog in courts. 20

b) Capacity of mediators

Dr. David rightly notes that: ‘Court annexed mediation deals with various disputes including commercial matters. Some of the mediators may not have the necessary skills and expertise in such areas making them ill equipped to facilitate the process. There is need for capacity building through training programmes for mediators to ensure that they are well informed and able to efficiently discharge their duties’21.

c) Mediation cost

While ADR mechanisms have generally been hailed as being cost-effective, this characteristic may be defeated in court- annexed mediation. In court-annexed mediation, referral of a case to mediation may happen after parties have incurred costs such as legal fees through drafting pleadings and filing the same.22 Currently, there is no framework for the recovery of costs where a case has been referred to mediation.23 Thus, parties may end up incurring further costs in the process. Further, where parties fail to reach a settlement agreement and such case reverts back to the court, the costs of the entire process end up being higher than what the parties had intended. There is a need to ensure the efficiency of court- annexed mediation to enable parties to benefit from the attributes of mediation.24

d) Inadequate negotiation skills by the parties

Mediation flows from negotiation since the mediator merely facilitates discussions between the disputing parties .25 26Negotiation skills are thus of utmost importance in the process. Statistics from the judiciary show that nearly half of the matters that have been referred to court annexed mediation have ended up not being settled.27 This can be attributed to among other factors, the lack of efficient negotiation skills by the parties. There may be need to provide basic negotiation skills to parties before they set down for court-annexed mediation28.

e) Inadequate funding

On this issue Josephine Oyombe postulated as follows; ‘The Court Annexed Mediation pilot and countrywide rollout overtime hasn’t achieved financial independence from normal dispute resolution mechanisms. At the pilot phase, no funds were specifically set aside for the project by the Judiciary, funds for payment of mediators, infrastructure and stationery and operational expansion were drawn out of the Registrar of High Courts budget. To rollout the Court Annexed Mediation project there has been lack of central funding for the various activities run at the mediation headquarters and the various mediation stations in the country’.29

In 2020 Mercy Okiro noted that courtesy of funding issues by the Judiciary mediators haven’t been paid or attended refresher courses. Her concerns were shared by other practicing mediators. One can observe that the entire Court Annexed Mediation Process is threatened by the issue of lack of funds. The earlier it is addressed the better.

4. The panacea to the muddle facing court-annexed mediation in Kenya

I. Proper and adequate funding

This point can be overemphasized. Without funds no operation can take place. Funds are the engines that run or power machines. With that observation, funds are needed for: the expansion and rollout of mediation to the whole country for so far the rollout hasn’t clocked the forty-seven counties yet; to sponsor training for the mediators and the staff; to buy various equipment necessary for use by the mediators and the secretariat; for paying the mediators and the staff who work tirelessly in their jobs in enhancing justice in the country.

Oyumbe gives a wonderful suggestion on funding, she argues that; ‘As currently set up, the Court Annexed Mediation project relies on the budget allocated to other organs of the Judiciary such as that of the Registrar of the High Court. To fully fund the operations of the project
both the recurrent and development budget funds needs to be set aside for the project. Given the potential that Court Annexed Mediation has for reducing the backlog of cases in the courts, an argument could be made that instead of hiring more judges the funds should be diverted to Court Annexed Mediation. The funds could be sourced directly from the national treasury or be aside from the funds allocated to the judiciary.

II. Capacity building programmes
There is need for standardized form of training of mediators and the staff who work in the various mediation centres in the country. This will bring harmony as to how mediators resolve disputes. The situation at the moment is that the mediators use their professional background skills to address disputes. The mediators come from an array of fields which in turn brings about disharmony on how mediation is effected to different parties. A uniform method can be unrolled during training. Moreover, mediators should attend refresher courses or continuous professional development trainings to expose them to emerging issues and skillset needed to conduct their work efficiently. This shouldn’t be done to only the mediators but also the staff working in the mediation stations in equal measure.

III. Massive publicity

Sensitization of masses on mediation is ideal so as to get the information as to many people as possible. This can be done via diverse channels like social media (Facebook, Twitter, Instagram), traditional media that is television stations, radio stations and print media. In addition, during open days of the courts, the same can be emphasized and the public learns on how mediation operates and make them embrace it.

5. Conclusion

The author is of the considered opinion that despite the challenges highlighted Court Annexed Mediation has played an integral role in enhancing justice in the nation. According to the records from the judiciary, cases that are referred for mediation are resolved faster than those that take up the normal formal justice system. This reveals how the Court Annexed Mediation can be an important asset if the solutions above are implemented.

Thus, this paper contends that if the challenges herein are addressed the future of mediation in Kenya will glow, unlike the current position in which it looks bleak. Once the challenges are addressed Kenyans will be able to solve their disputes in a timely manner, expeditiously and economically.

Jerameel Kevins Owuor Odhiambo is a law student at University of Nairobi, Parklands Campus.

1K. Muigua, “Settling Disputes through Arbitration in Kenya”, (Glenwood Publishers, Kenya 2012)

2J. Ngotho, ‘Access to Justice in Kenya: A Critical Analysis of the Challenges Facing Arbitration as a Tool of Access to Justice in Kenya,’ Journal of Conflict Management and Sustainable Development Vol. 2(1) 2018

3L. Boulle, ‘Mediation: Principles Processes Practices,’ (LexisNexis Butterworths; 2005) p 348.

4K. Muigua; ‘Alternative Dispute Resolution; Heralding a New Dawn: Achieving Justice Through Effective Application of Alternative Dispute Resolution Mechanisms (ADR) in Kenya, 2013,’ Vol. 1, No. 1

5F. Sander & W. Allen, ‘Judicial (Mis)use of Alternative Dispute Resolution? A Debate,’ University of Toledo Law Review

6E. Mutua, ‘Access to Justice in Kenya: A Critical Appraisal of the Role of the Judiciary in advancement of Legal Aid Programs’ (LLM Thesis, University of Nairobi 2014)

7K. Muigua, “Traditional Dispute Resolution Mechanisms under Article 159 of the Constitution of Kenya 2010” Retrieved from http://kmco.co.ke/wp-content/ uploads/2018/08/Paper-on-Article-159-Traditional-Dispute-Resolution-Mechanisms-FINAL.pdf Accessed on 5th May 2022

8C. Kakoonza, ‘Arbitration, Conciliation and Mediation in Uganda: A Focus on the Practical Aspects,’ Uganda Living Law Journal, Vol. 7 No. 2 December 2009, pp. 268-294

9M. Mironi, “From Mediation to Settlement and from Settlement to Final Offer Arbitration: an Analysis of Transnational Business Dispute Mediation”, 73(1) Arbitration 52 (2007), p. 53

10Civil Procedure Act, Cap 21, Laws of Kenya

11K. Muigua, ‘Court Sanctioned Mediation in Kenya: An Appraisal,’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/Court-Sanctioned-Mediation-in-Kenya- An-Appraisal-By-Kariuki-Muigua.pdf Accessed on 5th May 2022

12B. Knotzl & E. Zach, “Taking the Best from Mediation Regulation-The EC Mediation Directive and the Austrian Mediation Act,” 23(4) Arbitration International, 666, (2007)

13Ibid

14F. Shako, “Mediation in the Courts’ Embrace: Introduction of Court-Annexed Mediation into the Justice System in Kenya” TDM 1 (2017)

15K. Cloke, “The Culture of Mediation: Settlement vs. Resolution”, The Conflict Resolution Information Source, Version IV, December 2005

16K. Muigua, ‘Enhancing the Court Annexed mediation Environment in Kenya,’ Retrieved from http://kmco.co.ke/wp-content/uploads/2020/03/Enhancing-The-Court- Annexed-Mediation-Environment-in-Kenya-00000002.pdf Accessed on 5th May 2022

17Ibid

18Ibid

19The Judiciary, State of the Judiciary and the Administration of Justice: Annual Report 2018-2019, Judiciary Innovativeness in Access to Justice: Unlocking the Potential of Court Annexed Mediation

20Supra

21Supra

22Muigua K., ‘Court Sanctioned Mediation in Kenya-An Appraisal, Op Cit

23P. Kameri-Mbote, “Towards Greater Access to Justice in Environmental Conflicts in Kenya: Opportunities for Intervention,” International Environmental Law Research Center (IELRC)
Working Paper 2005-1

24Supra

25Kariuki D, ‘Resolving Conflicts Through Mediation in Kenya,’ 2nd Edition, 2017

26M. Mwagiru, Conflict in Africa; Theory, Processes and Institutions of Management, (Centre for Conflict Research, Nairobi, 2006)

27The Judiciary, State of the Judiciary and the Administration of Justice: Annual Report 2018-2019, Judiciary Innovativeness in Access to Justice: Unlocking the Potential of Court Annexed Mediation’ Op Cit

28Supra

29Oyombe J, ‘Court Annexed Mediation in Kenya: An Examination of Challenges and Opportunities’ (LLM Thesis, University of Nairobi)

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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