KENYA SCHOOL OF LAW

ATP 104
TRIAL ADVOCACY
COURT ANNEXED MEDIATION

COURSE INSTRUCTOR: MR. JUSTUS MUNYITHYA

CLASS ASSIGNMENT
AUTHORED BY: FIRM 29 CLASS F

SUBMITTED ON: OCTOBER 1, 2019

Table of Contents
MEDIATION .................................................................................................................................. 1

Characteristics of a Mediator ...................................................................................................... 1

Comparison with Other Forms of ADR ...................................................................................... 1

LEGAL FRAMEWORK OF COURT ANNEXED MEDIATION IN KENYA ........................... 1

Constitution ................................................................................................................................. 2

Civil Procedure Act..................................................................................................................... 2

The Mediation (Pilot Project) Rules 2015 .................................................................................. 3

INSTITUTIONAL FRAMEWORK FOR MEDIATION IN KENYA .......................................... 4

Mediation Accreditation Committee........................................................................................... 4

i. To determine the criteria for the certification of mediators ............................................. 5

ii. Propose rules for the certification of mediators ............................................................... 5

iii. Maintain a register of qualified mediators .................................................................... 6

iv. Enforce such code of ethics for mediators as may be prescribed ................................. 7

Alternative Dispute Operationalization Committee.................................................................... 8

Secretariat ................................................................................................................................... 8

PURPOSE AND SCOPE OF COURT ANNEXED MEDIATION ............................................... 9

Purpose........................................................................................................................................ 9

Scope of Court Annexed Mediation ......................................................................................... 10

i. Other courts using CAM ................................................................................................ 10

ii. Scope of Court Annexed Mediation in Terms of Location ............................................ 12

i
 iii. Cases that cannot be referred to CAM........................................................................ 12

THE PROCESS OF COURT ANNEXED MEDIATION IN KENYA ....................................... 12

Screening and Processing ......................................................................................................... 12

Role of Parties in the Mediation Process .................................................................................. 13

Duration .................................................................................................................................... 14

Conclusion and Enforcement .................................................................................................... 14

IMPACT OF MEDIATION .......................................................................................................... 14

Merits ........................................................................................................................................ 14

Demerits .................................................................................................................................... 15

RECOMMENDATIONS .............................................................................................................. 16

ii
MEDIATION

Mediation is an alternative dispute resolution process where parties who have failed to reach a
negotiated settlement are assisted to resolve their disputes by an independent and neutral third
party known as a mediator.

Characteristics of a Mediator
 Is independent, impartial, and has no stake in the outcome of the process;
 Helps parties in dispute to clarify issues, explore solutions and negotiate their own
agreement;
 Does not advise those in dispute, but helps people to communicate with one another.

Comparison with Other Forms of ADR

1. Arbitration is an alternative dispute resolution process where parties in dispute agreed to

be bound by a third parties decision on the dispute. This third party is colloquially referred
to as a private judge.
2. Negotiation is a method of alternative dispute resolution that involves a give-and-take
discussion that attempts to reach an agreement or settle a dispute
3. Conciliation is a method of alternative dispute resolution whereby a third party, who is
usually but not necessarily neutral, meets with the parties and assists them to find a way to
settle their dispute.
4. Reconciliation in family law is an alternative dispute resolution mechanism that involves
the reunification of a married couple who is separated or divorced.

LEGAL FRAMEWORK OF COURT ANNEXED MEDIATION IN KENYA

Prior to the 2010 constitution, there was no elaborate framework of Court Annexed Mediation
(CAM) in Kenya for the resolution of disputes. CAM is now underpinned by three important sets
of legislation:

1. The Constitution of Kenya 2010

2. The Civil Procedure Act Cap 21
3. The Mediation (Pilot Project) Rules 2015

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Constitution

Under Article 48 of the Constitution, the state is obligated to ensure access to justice to all persons

48. Access to justice

The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice.
Article 159 (2) (c) of the 2010 Constitution propounds alternative forms of Dispute Resolution
mechanisms as one of the principles that shall guide the courts and tribunals in the exercise of their
judicial authority. The qualifiers for ADR being that:

1. they do not contravene the Bill of Rights;

2. the process or results are not repugnant to justice and morality; and
3. they should not be inconsistent with the Constitution or any other written law.

159(2)(c) alternative forms of dispute resolution including reconciliation,

mediation, arbitration and traditional dispute resolution mechanisms shall be
promoted, subject to clause (3);

Civil Procedure Act

The Rules Committee which is a creature of Section 81 of the Civil Procedure Act (Chapter 21 of
the Laws of Kenya), embarked on a national exercise that was aimed at soliciting views from
members of the public The Civil Procedure Act aimed at soliciting views from members of the
public on the changes required to bring about realistic, practical and user friendly changes to the
Civil Procedure Rules.

The Committee proposed various amendments and a new order to address mediation exclusively.
Finally, in December 2012 the Civil Procedure Act was amended pursuant to Act No. 12 of 2012.
The following is a summary of the crucial amendments to the Civil Procedure Act;

1. Section 2 defined the process of mediation, mediation rules and a mediator.

2. Section 59 A established the Mediation Accreditation Committee whose 12 members were
appointed by the Chief Justice. The committee is empowered to, inter alia, determine the
criteria for certification of mediators, propose rules for certification, maintain a register of

2
 The Civil Procedure Act propose rules for certification, maintain a register of qualified
mediators, enforce the code of ethics and establish appropriate training programmes for
mediators.
3. Section 59 B-gives the court the discretion to refer a dispute to mediation upon request of
the parties, where it deems it appropriate or if the law so requires. Such mediation shall be
conducted in The Civil Procedure Act requires. Such mediation shall be conducted in
accordance with the mediation rules. No appeal shall lie against from a mediation
agreement.
4. Section 59 C- other alternative dispute resolution methods are also applicable. This section
does not describe the methods.
5. Section 59 D-the court is empowered to enforce private mediation agreements.
6. Pursuant to Order 46 rule 20(3) of the Civil Procedure Rules, it is only after court
mandated mediation has failed that the court shall set the matter down for hearing.

The aforesaid amendments to the Civil Procedure Rules provided a legal process where a court
can The Civil Procedure Act provided a legal process where a court can coerce parties to mediate
and the outcome of the mediation taken back to court for clarification.

The Mediation (Pilot Project) Rules 2015

Before implementing mediation within the justice system on a large scale, it was imperative to
begin with a pilot project. Conducting mediation on a limited and experimental basis is giving the
Court Annexed Mediation project limited and experimental basis is giving the interested
stakeholders an opportunity to see how mediation works for their particular sectors and
applicability in settling certain disputes.

In 2015 the Kenyan judiciary, with financial assistance of the World Bank, rolled out the pilot
Court Annexed Mediation in Nairobi in 2015. During the pilot project of court annexed mediation,
all cases filed after the 4th of April 2016, at the Family divisions and commercial divisions of the
High Court at Nairobi had to undergo mandatory screening to assess whether or not they are
suitable for mediation.

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Since the success of the pilot project, CAM has been rolled out to other counties.1

INSTITUTIONAL FRAMEWORK FOR MEDIATION IN KENYA

The main institution for mediation in Kenya currently is the judiciary, the High Court to be precise.
However, prior to Court Annexed Mediation, there was no comprehensive legal framework for
mediation in Kenya2.

At the beginning of the mediation pilot project (the beginning of court annexed mediation), bodies
were formed to help steer the project. These bodies include the Mediation Accreditation
Committee (MAC), the Alternative Dispute Operationalization Committee (AOC), and the
Secretariat (Technical Working Group (TWG).

Mediation Accreditation Committee

The Mediation Accreditation Committee (MAC) is a committee established under section 59A of
the Civil Procedure Act (Chapter 21, Laws of Kenya) and is comprised of 12 members from
different sectors. It is chaired by the Chairman of the Rules Committee, Hon Justice Alnashir
Visram (JA).

The Mediation Accreditation Committee has four functions:

1. To determine the criteria for the certification of mediators

2. Propose rules for the certification of mediators
3. Maintain a register of qualified mediators;
4. Enforce such code of ethics for mediators as may be prescribed

1
https://www.judiciary.go.ke/judiciary-rolls -out-court-annexed- mediation-to-other-regions
2
KARIUKI MUIGUA, ‘“Overview of Arbitration and Mediation in Kenya”; A Paper Presented at a Stakeholder’s
Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations In Kenya, held
at Kenyatta International Conference Centre, Nairobi, on 4 th -6th May, 2011’ (page 4) http://kmco.co.ke/wp-
content/uploads/2018/08/Overview-of-Arbitration-and-Mediation-in-Kenya.pdf

4
 i. To determine the criteria for the certification of mediators

The mediators are selected from interested applicants who meet Accreditation Standards set by the
Committee. The Standards are the minimum qualifications and training required by mediators so
that parties are informed on the competencies and qualifications required by mediators. These
Accreditation Standards have been published by the Mediation Accreditation Committee and they
are:

a) To possess an undergraduate degree from a University accredited by the Commission

for University Education.
b) Be a current member, in good standing of a Professional body.
c) Be Certified as Professional Mediator from established Mediation Training Centres.
(d) Attended and completed a mediation course of not less than 40 hours training.
d) Completed at least 3 Mediations

ii. Propose rules for the certification of mediators

Any person seeking accreditation as a mediator shall apply to MAC. The application shall be in
the prescribed form 1 as set out in the schedule and shall be accompanied by the following:

(a) An undertaking by the applicant to comply with on-going practice standards and
compliance with any legislative and approval requirements.
(b) Certificate of current membership in a registered and recognized professional body with
a defined disciplinary process.
(c) References from the following groups of people and Mediation Accreditation
Committee: Mediator Accreditation Standards 2 institutions:
(i) two credible members of their community, religious body, institution, association who
have known them for more than FIVE years; and
(ii) Certificate of good standing from their respective professional bodies.
(d) Tax Compliance Certificate (valid for 6 months from the date of application)
(e) Current Resume
(f) the application fee of Ksh 1000 or as may be reviewed by MAC from time to time.

Mediation Accreditation Committee may, approve or refuse an application for membership.

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Upon receipt of Notification of approval, the mediator shall pay Ksh. 10,000/- as registration fees
within 21 days.

The process of accreditation is open and ongoing. Qualified and interested mediators are
encouraged to apply.

iii. Maintain a register of qualified mediators

Upon payment of Registration fees, the name of the Mediator shall be entered into the roll of
mediators by MAC. MAC is charged with the mandate to inter alia maintain a register of qualified
mediators. There are currently 499 mediators in the role, 81 of which are under Mentorship (yet to
complete 3 mediations).

Each mediator is assigned a unique accreditation number, category of accreditation and the regions
which they may practice. For instance, Mr. Justus Munyithya’s accreditation number is
MAC/2016-006, able to mediate in the areas of Civil, Commercial, Labor and Family and can
practice in the Mombasa Region.

Every Mediator in the MAC register is required to comply with the following requirements to
maintain their accreditation status;

(a) conducted at least 25 hours of mediation or co-mediation or conciliation within the

year in consideration;
(b) completed at least 20 hours of continuing professional development within 12
months of accreditation
(c) Must pay the Mediator Accreditation Committee annual MAC subscription fee of
Ksh 10,000/- or as may be reviewed by MAC from time to time

The accreditation offered by MAC shall otherwise cease to continue once a mediator resigns in
writing or by reason of his/her death.

1.1.1.1 Chartered Institute of Arbitrators

The institution offers training for mediators in Kenya at a fee. The intensive course takes about 8
days after which one is given a certificate and then one becomes a member of the institution. The
institution also offers training for other Alternative Dispute Resolution courses.

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1.1.1.2 Mediation Training Institute.

The institution is under the leadership of Mr. James Mangerere who is a renowned professional
Mediator. They offer training, certification, licensing, and consulting in workplace conflict
management and mediation. Through the institute, they offer programs and products for conflict
resolution and mediation including a variety of mediation certification programs. MTI Workplace
Mediation courses help practitioners to develop skills in mediation and conflict resolution that
positively impact workplace relationships, productivity and efficiency. The learning methodology
includes programs for trainers (Certified Workplace Trainer and Resolving Workplace Conflict)
and workplace mediators (Certified Workplace Mediator and Trainer).

1.1.1.3 Strathmore Dispute Resolution Centre

This is a premiere mediation centre in Kenya within Strathmore University. “It is committed to
preventing and resolving conflict by promoting and facilitating Alternative Dispute Resolution and
in particular Mediation in Kenya3”.

1.1.1.4 The Mediation Training Institute

The Mediation Training Institute also offers training for mediators and mediation services.4

iv. Enforce such code of ethics for mediators as may be prescribed

A mediator shall be suspended or removed from the register of Accredited Mediators where there
has been:

a) non-compliance with the Accreditation Standards,

b) Breach of code of conduct or the mediation rules
c) non adherence to ethical guidelines or professional requirements

3
https://sdrcentre.wordpress.com/about/
4
KARIUKI MUIGUA, ‘”Overview of Arbitration and Mediation in Kenya”; A Paper Presented at a Stakeholder’s
Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations in Kenya, held
at the Kenyatta International Conference Centre, Nairobi, on 4 th -6th May, 2011’ (page 6) http://kmco.co.ke/wp-
content/uploads/2018/08/Overview-of-Arbitration-and-Mediation-in-Kenya.pdf

7
 d) failure to renew accreditation status
e) a disciplinary cause and the Mediator has been struck off or suspended from their
respective professional body or
f) Has become bankrupt, of unsound mind or deemed medically unfit to serve in that
capacity through any existing written laws of Kenya.
A mediator shall be informed within 14 days of the concerns of MAC and provided with an
opportunity to respond to MAC. MAC will initiate the disciplinary process to deal with removal
and suspension and shall provide access to such disciplinary process where such decisions will be
made in a procedurally fair manner.

Alternative Dispute Operationalization Committee

This committee was formed for the purposes of overseeing the implementation of the Court
Annexed Meditation Project. It meets regularly to review the progress of the project, makes
recommendations and formulates policies on how to guide the project.

The Alternative Dispute Operationalization Committee was instrumental in the development of

the Mediation Manual.

Secretariat

The secretariat also known as the Technical Working Group is charged with the day to day running
of the project.

Apart from court annexed mediation, the other existing legal and institutional framework for
mediation is majorly guidelines by institutions undertaking mediation in Kenya 5. Most of the
institutions that have incorporated mediation as a dispute resolution mechanism also offer

5
KARIUKI MUIGUA, ‘“Overview of Arbitration and Mediation in Kenya”; A Paper Presented at a Stakeholder’s
Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations In Kenya, held
at Kenyatta International Conference Centre, Nairobi, on 4 th -6th May, 2011’ (page 4) http://kmco.co.ke/wp-
content/uploads/2018/08/Overview-of-Arbitration-and-Mediation-in-Kenya.pdf

8
mediation courses. The mediation rules developed by these institutions bind the parties that wish
to be bound by them. The institutions are such as:

a) the Nairobi Centre for International Arbitration (NCIA), whose mediation rules are termed
as the Nairobi Centre for International Arbitration (mediation) Rules, 2015 which apply to
disputes that had arisen prior to the enactment of these Rules and all disputes arising upon
the enactment of these rules where the parties have agreed to its application (Rule 2, sub-
rule 1). The mediation rules in Rules 4 and 5, provide for domestic mediation and
international mediation. In domestic mediation, the parties intending to be bound by those
rules have affiliations with Kenya whereas in international mediation, the parties have no
affiliations with Kenya6; and
b) the Chartered Institute of Arbitrators which also has its own Mediation Rules that the
parties may wish to agree to use7.

PURPOSE AND SCOPE OF COURT ANNEXED MEDIATION

Purpose

There are a limited number of judges and magistrates in the courts and a disproportional vast
number of cases that are waiting for hearing and determination in the courts.8 Due to this, there is
vast backlog in the judiciary. In the quest to reduce the amount of backlog, court annexed
mediation was introduced.

The introduction of court- annexed mediation was to offer fast and efficient method for parties to
resolve their disputes. This is because cases that are taken through court-annexed mediation will

6
https://www.ncia.or.ke/wp-content/uploads/2017/02/mediation_rules_2016.pdf
7
‘Dispute Appointment Service-Mediation’ https://www.ciarbkenya.org/mediation/
8
‘Court Annexed Mediation Offers Alternative to Delayed Justice for Kenyans’ (n 1).

9
be mediated and concluded within an average of 66 days.9 However, if there is need for an
extension, by the approval of the Kadhi, deputy registrar or magistrate, the mediation can be
extended by a maximum of ten days. This is a big difference from previously, where the cases in
civil cases would take an average of about twenty-four months to conclude.10

It has saved a lot of money both for the country and the individuals who have had their cases go
through the process. As of July 2018, a recorded Ksh.2.4 Billion was released back into the
economy.11 Former Chief Justice Dr. Willy Mutunga in his speech during the launch of the
blueprint, “Sustaining Judiciary Transformation Agility in Judicial Service Delivery”, recognized
that the introduction of court-annexed mediation was introduced to offer a cheaper version of
access to justice since unfortunately and quite often, the formal justice system is too expensive to
afford. So much so that very few people can afford fees that comes with the formal justice system.12

Scope of Court Annexed Mediation

i. Other courts using CAM

When the court-annexed mediation was introduced, the pilot program was only rolled out to the
Commercial and Family law divisions. With time the program has been rolled out to other courts.

The Environmental and Land Courts Act under Section 20 provides;

(1) Nothing in this Act may be construed as precluding the Court from
adopting and implementing, on its own motion, with the agreement of or at
the request of the parties, any other appropriate means of alternative

9
‘Judiciary Rolls out Court Annexed Mediation to Other Regions – The Judiciary of Kenya’
<https://www.judiciary.go.ke/judiciary-rolls-out-court-annexed-mediation-to-other-regions/> accessed 17 March
2019.
10
‘Court Annexed Mediation Offers Alternative to Delayed Justice for Kenyans’ (n 1).
11
‘Judiciary Rolls out Court Annexed Mediation to Other Regions – The Judiciary of Kenya’ (n 10).
12
‘SpeechByChiefJusticeMaraga.Pdf’ 30
<http://kenyalaw.org/kl/fileadmin/pdfdownloads/SpeechByChiefJusticeMaraga.pdf> accessed 17 March 2019.

10
 dispute resolution including conciliation, mediation and traditional dispute
resolution mechanisms in accordance with Article 159(2) (c) of the
Constitution.

(2) Where alternative dispute resolution mechanism is a condition precedent to

any proceedings before the Court, the Court shall stay proceedings until
such condition is fulfilled.
The Employment and Labor Relations Act under Section 15 provides that;

(1) Nothing in this Act may be construed as precluding the Court from
adopting and implementing, on its own motion or at the request of the parties,
any other appropriate means of dispute resolution, including internal methods,
conciliation, mediation and traditional dispute resolution mechanisms in
accordance with Article 159(2)(c) of the Constitution.

(4) If at any stage of the proceedings it becomes apparent that the dispute
ought to have been referred for conciliation or mediation, the Court may stay
the proceedings and refer the dispute for conciliation, mediation or
arbitration.
The Intergovernmental Relations Act under Section 31 also provides that;

(2) Any agreement between the national government and a county government
or amongst county governments shall—

(a) include a dispute resolution mechanism that is appropriate to the nature of

the agreement; and

(b) provide for an alternative dispute resolution mechanism with judicial

proceedings as the last resort.
The Land Act prescribes under Section 4 (2) that;

(2) In the discharge of their functions and exercise of their powers under this
Act, the commission and any state officer or public officer shall be guided by
the following values and principles: -

(m) Alternative dispute resolution mechanisms in land dispute handling and

management.
From the aforementioned provisions of law, it can be seen that court annexed mediation is no
longer just limited to family and commercial courts division but has been opened up to deal with
land issues, environment disputes and the employment issues.
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 ii. Scope of Court Annexed Mediation in Terms of Location

Court annexed mediation is not being practiced all over the country. However, it is slowly being
rolled out. As of October 2018, the Chief Justice Honorable David Maraga gazetted practice
directions to guide the rollout of Court Annexed Mediation to other Counties, namely: Mombasa,
Eldoret, Kisumu, Nakuru, Nyeri, Machakos, Garissa, Embu, Kakamega and Kisii.13

iii. Cases that cannot be referred to CAM

Cases that involve allegations of issues such as child abuse, matters of criminal nature, and any
issue generally raising a question of law will not be referred to court-annexed mediation.

THE PROCESS OF COURT ANNEXED MEDIATION IN KENYA

When cases are filed at the High Court mostly in the family and commercial divisions, they first
undergo a screening to assess whether or not it should be referred to mediation. This is because as
mentioned earlier in our report, not all cases are suitable for mediation. The process of assessing
the cases is what is referred to as screening and it is mandatory for all cases.

Screening and Processing

A properly trained officer of the court will review the details of each case and identify whether or
not it is suitable for mediation. This is done by applying a range of internationally accepted criteria
in use for mediation.

1. When the Mediation Deputy Registrar decides that a case is suitable for mediation, he/she
notifies you of the decision within 7 days.
2. The registrar then nominates three mediators from the Register of Judiciary’s accredited
mediators and notifies the party of the names. The Register is kept by the Mediation
Accreditation Committee which is an independent body established under the Civil
Procedure Act.14

13
‘Judiciary Rolls out Court Annexed Mediation to Other Regions – The Judiciary of Kenya’ (n 10).
14
Sec 59A of CPC

12
 3. Within seven days of being notified, the parties then have to state their preferred mediator
from the three names in the order of priority and then notify the Mediation Deputy Registrar
in writing who in turn will appoint a mediator to handle the case.
4. The parties also have an option of choosing any other mediator from the Register of
Mediators. This is however done within 7 days of being notified by the Registrar of the
names of the three nominated mediators.
5. The appointed mediator will then schedule a date, time for the initial mediation and notify
the parties of the same.

Role of Parties in the Mediation Process

 To file a summary of their case in the prescribed form.
 To attend all the mediation sessions.
 To keep all the communication during the mediation confidential.
 Not to use any electronic or recording device during the mediation process.
 To commit to observe the rules of engagement and to sign a statement of understanding.
 When a settlement is reached, to sign the mediation agreement.
 A lawyer or representative can also accompany the parties but they have to comply with
the mediation rules of 2015.
 Parties have the right and option of obtaining interim remedial measures from the court
where an ADR judge handling interim applications may give the appropriate reliefs.
However, referral of cases for mediation does not operate as automatic stay of any orders
issued by the court in the matter

Parties’ failure to comply with Mediator’s directions or failure to attend sessions may result in the
mediator filing a certificate of non-compliance based on which the court may:

 Order that the parties attend further mediation sessions.

 Strike out the pleadings.
 Order that parties pay costs.
 Make any other appropriate order.

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Duration

Mediation proceedings should be concluded within 60 days from the date it is referred for
mediation but the duration may be extended for a further 10 days.

Conclusion and Enforcement

 If parties reach an agreement, they sign a mediation agreement and file it with the
Mediation Deputy Registrar within 10 days.
 If no agreement is reached, the mediator will notify the registrar after which the court will
process the case in the usual manner.
 The concluded agreement will be filed by the registrar and then adopted and enforced as
judgment or order of the court.
 Parties have no right of appeal as the judgment was arrived at from a settlement between
the parties.

IMPACT OF MEDIATION

Merits

The Constitution of Kenya 2010 has made access to justice easy by appreciating mediation as one
of the Alternative forms of Dispute Resolution. Article 159 (2) encourages courts and tribunals to
be guided by certain principles and adopt alternative forms of dispute resolution such as mediation.
By opting to mediation, parties not only access justice easily but also feel satisfied by the outcome
at the psychological level.

With mediation adopting an informal process in conflict resolution mechanism, it makes it,
expeditious, speedier and cost effective.

14
Mediation has reduced the time it takes to resolve a case in Kenya from 24 months to 66 days with
the speedier process meaning that an estimated US$7.7 million tied up in unresolved cases has
been released back into the Kenyan economy.15

1. Reduction of case backlog: The Court Annexed Mediation Project has immensely played
a pivotal role in reduction of case backlog of civil cases with over 480 court cases having
been referred for mediation since April, 2016. As of July 2017, about 1, 500 cases had been
screened with about a third referred to mediation.16
2. Private and confidential: all information exchanged during the mediation process remains
privy only to the parties and the mediator(s), thus parties to a dispute are more likely to
disclose all the information relating to the fact in issue enabling the mediator(s) guide the
parties appropriately in reaching at an amicable solution. This is also necessitated by the
fact that such information cannot be admissible in a court of law.
3. Greater Flexibility and Control: In mediation, unlike in a lawsuit, the parties are in
control. This means that the parties have a much greater say in negotiations and greater
control over the outcome. Settlement of disputes is in most cases party-friendly as solutions
are reached while preserving relationships. Thus focus in most cases is not on what is
legally correct but dependent upon the will and joint interest of the parties.
4. Acceptable Outcome: Since mediation entails greater commitment by the parties, usually
by being engaged and allowed to participate all through the entire process unlike in other
methods such as litigation its outcome is acceptable to both parties and durable.

Demerits

1. Mediation suffers from non-binding nature. This means that even though the parties
may have agreed to submit a dispute to mediation, they are not obliged to continue with
mediation process after the first meeting. In this sense, the parties remain always in control

15
<http://www.worldbank.org/en/news/feature/2017/10/05/court-annexed-mediation-offers-alternative-to-delayed-
justice-for-kenyans> accessed on 2nd March 17, 2019
16
ibid

15
 of mediation process. The continuation of the process depends on their continuing
acceptance of it.17 It is a process that requires the good will of the parties. The non-binding
nature of mediation also means that a decision cannot be imposed on the parties.18
2. No Precedents In mediation, unlike litigation there are no precedents that are set hence
creating uncertainty in the way decisions will be made in future.
3. Mediators are not financially incentivized. Court appointed mediators are paid a fixed
amount of KES. 20,000 regardless of how many sessions they have to conduct. This means
that the more the sessions the less the mediator is likely to be motivated to continue and is
more likely to make hasty recommendations.
4. Not always suitable. Mediation may not be suitable where one party needs urgent
protection like an injunction and hence viewed against litigation this could be a demerit.

RECOMMENDATIONS

From the foregoing discussion it is evident that the use of mediation has played a pivotal role as
far as access to justice is concerned. Mediation is essentially negotiation with the assistance of a
third party. The mediator’s role in such a process is to assist the parties in the negotiations and he
cannot dictate the outcome of the process. Resolution as opposed to settlement of conflicts can
assist in healing the wounds caused by a conflict.

Following are recommendations to make court annexed mediation even more useful in ensuring
justice:

1. The judiciary should endeavor to roll out the use of court-annexed mediation in every
region of the country to ensure that every Kenyan gets access to justice without any form
of hindrance.
2. The mediation of conflicts should be backed by an appropriately comprehensive and
effective legislative and administrative infrastructure capable of resolving more stubborn

17
<http://resources.lawinfo.com/en/Article/medaton/Federal/the-pros-and-cons-of-mediation.html> accessed on
11/03/2019
18
Ibid

16
 cases and cases that fall outside the jurisdiction process of mediation. The current
institutional framework for resolution of conflicts which mainly consists of courts and
tribunals has not been effective in resolving disputes, for example the land and
environmental disputes.
3. A code of conduct to regulate mediation practice should be put in place. The code of
conduct should set out principles relating to competence, appointment, independence,
neutrality, impartiality, mediation agreements, and fairness of the process, fees and
confidentiality which mediators should commit to.
4. The role of women in mediation of conflicts should be institutionalized. The place of
women in our society puts them in the most proximate contact with many members of the
community. Within the African traditional setting, women played a primary role in
resolving conflicts as negotiators. Conflict mediation systems should require that gender
issues are given adequate weight and should include some requirement for inclusion of
female mediators when appropriate like when land rights are involved. The constitution
requires gender parity in almost all commissions and organs of the government19.
5. There is need to create awareness and sensitize members of the public on how to resolve
disputes using amicable means and without necessarily going to court. Until Kofi Annan
appeared in Kenya to mediate over the 2007-2008 post-election crisis in the country, most
Kenyans did not have a clue what mediation was and to date very few are aware of how
mediation works yet mediation is an alien concept in the country as it has been practiced
for generations. Therefore it is imperative that mediation awareness is created through
public education and training of community mediators20. This can only be achieved if there
is dedicated funding by development partners and public-private sector partnerships for a
continuous training programme.
6. It is only by training the public, government officials including judicial officers on how to
resolve conflicts that the economic wellbeing of the country, access to justice and peace

19
Article 10, 27, 90 and 97 of Constitution of Kenya 2010
20
https://cardozojcr.com/volno2/479-510pdf

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 can be guaranteed. Kenya can learn from Malawi whose economic backbone like Kenya’s
is equally agriculture, where the Danish Institute for Human Rights initiated a pilot project
to create community based mediation scheme aimed at empowering the poor and
vulnerable people to access justice.
7. There is also need for the facilitation of more international links between Kenya and those
jurisdictions with successful mediation regimes so as to exchange ideas and experiences
that will help further the growth of mediation as conflict resolution mechanism in the
country.
8. There is also need for maintenance of political support of mediation as a tool for conflict
resolution in the country. For instance the government should pledge the use of mediation
clauses in all government contracts and to resort to mediation in the first instance. All other
contracts should also consider mediation as the first port of call whenever a dispute arise
so as to reduce the backlog of cases in our courts and to arrive at acceptable outcomes that
could not otherwise be realized in a court of law21

Through mediation, the indigent members of society have been able to access the seat of justice
and have their disputes resolved without having to spend a lot of money as it is the case. It is
therefore recommended that there be concerted effort to identify and use mediation in a way
that creates a bridge between traditional conflict resolution mechanisms and the courts for
purposes of ensuring that justice is served to all regardless of status.

21
https://kmco.co.ke/wp-content/uploads/2018/08/Reflections-on-the-Use-of-Mediation-for-Access-to-Justice-in-
Kenya-Maximizing-on-the-Benefits-of-Mediation-Kariuki-Muigua-14th-June-2018-1.pdf

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