THE PLACE OF MEDIATION IN THE KENYAN LEGAL SYSTEM
Ibrahim A. Abdi
INTRODUCTION
Mediation was introduced in the Kenyan Legal system vide the Constitution of Kenya
2010 under Article 159(2)(c) which provides that alternative dispute resolution
including reconciliation, mediation, arbitration and traditional dispute
resolution mechanisms shall be promoted. Prior to this Mediation was the
subject of numerous workshops across the county as early as 1998[1]
This
is the footing of mediation in law, which later on led to the Amendment of
the Civil Procedure Act[2]
by an enactment of section 59A[3] which
establishes the Mediation Accreditation Committee which under the Act is
charged with the role of determining the criteria for certification of
mediators and the rules consequent to the practice such as code of ethics, programs
to be undertaken by mediators among others.
Mediation
is an alternative dispute resolution mechanism where two parties settle their dispute
with the assistance of a neutral third party, whose aim is to help the parties
reach a negotiated agreement that becomes binding upon them once adopted by a
court.
Mediation
is defined under Section 2 the Civil Procedure Act [4] as an informal and non-adversarial process by an impartial mediator who
encourages and facilitates the resolution of a dispute between two or more
parties but does not include the attempts made by a judge in the course of his
usual duties.
Section
2[5]
further defines who a mediator is by providing that a mediator is an impartial
third party selected to carry out mediation.
The
initial driver to have mediation as an alternative to litigation was to help in
reducing the bulk of backlogs in courts.[6]
Litigation had taken preference over alternative dispute resolution (ADR) since the laws in place did not previously provide for the settlement of disputes or
enforcement of out of court settlement except for Arbitration which had an Act
guiding the practice. [7]
The
growth of mediation and other ADR mechanisms has been largely based on the need
to reduce the backlog of cases in court but also from the realization that
mediated outcomes rarely attract appeals. [8]
People
identify a process to be procedurally fair if they have been accorded an
opportunity to be heard, the recipient cared about what the speaker had to say,
understood what they said and in the process the speaker felt that he has been
accorded respect and was treated with dignity. [9]
If
these elements are met, a person is more likely to be remorseful and accepting
of the judgment.
This
is the aim of mediation, to accord the parties to a dispute the opportunity to
be heard, to speak, to be understood and be treated with respect and dignity.
The process eventually gives each party the opportunity to experience the
dispute from the other party’s point of view and works towards understanding
conflicting interests other than legal rights.
The
end result of mediation is not a settlement but a resolution emanating from the
parties themselves with a facilitative effort from the mediator.
THE
LAWS ON MEDIATION.
As
earlier mentioned, mediation has been incorporated into law by amendment of the
Civil procedure Act, by inserting section 59A [10]
which establishes the Mediation Accreditation Committee (MAC). The Committee
which is constituted by the Chief justice is mandated with functions such as
determining the criteria for the certification of mediators, propose rules for
the certification of mediators, maintain a register of qualified mediators;
enforce such code of ethics for mediators as may be prescribed and set up
appropriate training programs for mediators.[11]
Section
59A (3) establishes the office of the mediation registrar whose purpose is to
perform the administrative duties of the committee and maintain the register of
qualified mediator.
The
establishment of this committee gives mediation a strong footing in the Kenyan
legal system and these rules developed by the committee are seen to be aimed at
maintaining the sanctity of the justice system while providing for timely
disposal of disputes.
The
committee has pulled its membership from a wide range of professionals across
board but has unfortunately failed to recognize the place of traditional mediators.[12] These
mediators have been instrumental in solving land cases, civil case, and some
criminal cases have also been settled through mediation. The most prominent of such
cases being the Republic v Mohamed
Abdow Mohamed [13] where
the Counsel holding brief for the complainant in the matter submitted to the
court a letter request the withdrawal of the matter part of the letter read as
follows:
“……. The two families have sat, and some form of compensation has taken place wherein camels, goats and other traditional ornaments were paid to the aggrieved family. Actually, one of the rituals that have been performed is said to have paid for blood of the deceased to his family as provided for under the Islamic Law and customs. These two families have performed the said rituals, the family of the deceased is satisfied that the offence committed has been fully compensated to them under the Islamic Laws and Customs applicable in such matters and in the foregoing circumstances, they do not wish to pursue the matter any further be it in court or any other forum…….” [14]
The
judiciary has been empowered under order 46, rule 20[15]
to, on its own motion or at the request of the parties to refer a matter to ADR
mechanism including mediation. The order is meant to facilitate the realization
of the overriding objective as captured under section 1A[16]
as well the realization of the duty of the court which by extension is to ensure
that the overriding objective is met which involves; the just determination of
the proceedings, the efficient disposal of the business of the Court, the
efficient use of the available judicial and administrative resources; the
timely disposal of the proceedings, and all other proceedings in the Court, at
a cost affordable by the respective parties and the use of suitable technology.[17]
To make mediation further attractive and convenient, actions that are time
barred by the Statute of Limitations[18]
cease to run as is captured by Section 4 of the mediation rules.[19]
This in turn, guarantees the parties to the dispute that, while the mediation
process can takes up to a period of up to 60 days[20]
this time will not be factored to their disadvantage in the rare instance the
mediation fails and the matter is referred back to the court as envisaged under
order 46 rule 20 (3)[21]
this provides a sense of assurance that the mediation process will not alter
the long established tradition of litigation where the winner takes all. The
aim here being that, at times people are more comfortable and at ease with what
they are used to. Be it good or bad. However, with assurances the
familiarity can be broken.
It is important to note at this point that if, parties to a dispute come to an agreement, that agreement is adopted by the court as its own judgment[22] and no appeal may lay from such a judgment of the court.[23] The principle behind it can be likened to that of parties being bound by their own pleadings, it ensures that persons will be absolutely liable for all their admissions and consent. The concept behind mediation is largely based on the consent of the parties which is a requirement to conduct a mediation session, furthermore, parties sitting in a mediation session should be vested with the power to make such decisions, concessions and bid themselves or their principles in any outcome that the parties partially or in full, agree too.[24] This is also a requirement for persons attending a mediation session representing a corporate, partner’s government or other entities.[25] The person appearing on behalf of a company, another person, a partnership should present to the mediator a letter of authorization acknowledging that he has the power vested in him to bind the principal and the power to make any concessions necessary to realize the success of the process[26] this letter of authorization should be presented to the mediator in the first session and all parties present should identify themselves and their role in the process.[27]
THE MEDIATION PROCESS.
The mediation process is initiated in either of three ways, by court in accordance with the power of the court to exercise that discretion as per Article 159 (2) (c)[28] operation of the law, or by private initiative or by a private practicing mediator.
The Similarities.
While
there is a clear-cut difference in the three types of mediation, they share more
than they differ.
The
court annexed mediation as earlier on discussed in this paper was first
established through the Mediation pilot project Rules of 2015 and amended by
the Mediation Rules 2022[29]
The
2022 mediation rules are more elaborate and encompassing. They have brought in
the aspect of representation in mediation between natural persons [30]
as well as legal persons who can be represented by fully authorized persons [31]
to bind the entity or natural person they represent.
This
is an important element encompassing access to justice as it allows
representation of the actual disputants at the mediation session. The absence
of the actual disputants then does not impede the process.
In
private practice, whether initiated by the mediator or the parties in dispute,
this is an important document that each mediator requires to be produced before
any further step is taken towards the mediation session.
The
letter of authorization must be produced to the mediator no matter in what
manner the mediation is initiated, and the bearer of that letter cannot have
restrictions on them in the scope of the negotiations to take place.
Their
authority must be unrestricted after all the aim of mediation is not to
prejudice any party in the conflict but rather to provide an amicable solution
that all parties are satisfied with and are willing to freely enter into.
The
commencement of the process starts with the mediator taking control of the
session by introducing themselves and requesting the parties to introduce
themselves in order for the mediator to be acquainted to them and for the
establishment that the mediation process is a formal process that requires a
certain level of discipline and order.
The
mediator then continues to introduce the rules guiding the session and asks the
parties to add to the rules as they would think it fit to best serve the
interests of making the process a success.
Another
similarity is that any communication that takes place in the mediation session
is private and confidential and cannot be admissible before a court of law.
However,
the scope of confidentiality and admissibility does not extend to the
mediator’s report as it amounts to a public document. The mediator is allowed
to breached confidentiality where a party makes an imminent threat to the life
or property of the other party in the dispute.
The Differences.
The
differences arise from how the process is initiated while the court annexed
mediation must arise from the orders of the court where the case file is
screened by the court and recommended for mediation.
The
mediation accreditation committee then recommends an accredited mediator from
the list kept by them to the parties alternatively the parties can agree on a
mediator from the list of accredited mediators and notify the mediation deputy
registrar who will in turn notify the mediator of the appointment either be it
by the Mediation deputy registrar or the parties.
The
appointed accredited mediator has up to seven days to accept or reject the
appointment by notifying the Mediation deputy registrar in writing.
In
privately initiated mediation, the parties can either be approached by the
mediator or one or both parties approach the mediator.
Where
the mediator has approached one party or appointed by one party, it befalls
upon them to approach the other party and convince them to participate in
mediation process.
It
befalls upon the mediator to convince the party invited to the mediation that
they are non-partisan in the conflict and their sole interest is in helping the
parties reach an amicable agreement thus avoiding the long and expensive court
processes that might result in one party being forced a decision down their
throat.
Another
difference is on the implementation of the mediator’s report. The court adopts
the report of the accredited mediator as its own judgment irrespective of the
parties not having agreed on all issues that arise from the dispute.
While
a privately negotiated mediation is only enforceable by a court if all issues
identified by the parties to constitute the dispute are agreed upon by the
parties among other requirements that the mediator is registered under MAC or accredited by an institution accredited by MAC [32]
CONCLUSION
As
illustrated from the foregoing, it is clear that mediation as an alternative
means of mediation is now deeply rooted in the legal system of Kenya allowing
for practice of both private mediation and court annexed mediation.
However, this has been a journey that started from private practice and through lobbying the government, the court annexed mediation was enshrined in the Civil Procedure Act [33] enabling the access to justice to be expanded beyond the traditional litigation means of dispute resolution
The coercive nature of the court annexed mediation brings into question the issue of voluntariness in the process of mediation especially at the point at which the court directs that the case be referred to mediation and the repercussions of not attending the mediation.
That
said, it would be completely unfair to the court annexed mediation to not be
credited with the formalization of mediation agreements as an alternative to
justice.
The
advantages of the mediation process not only remain within the frames of
reaching a mutually amicable solution but on the party-based control of the
process and outcome, the flexibility and cost-effective nature associated with
mediation.
Many
whom have brushed shoulders with mediation have admitted that they would rather
mediate over and over again rather than litigate in court as it has been
observed by Nancy A. Welsh.
[1] Kennedy Odhiambo, “ADR
Developments in Kenya” Weinstein International Foundation available at <<
https://weinsteininternational.org/kenya/kenya-bio-2/>> accessed on 6th
September 2023
[2] Chapter 21, Laws of Kenya.
[3] ibid
[4] ibid nt. 1
[5] Civil Procedure Act Chapter 21,
laws of Kenya.
[6] Kariuki
Muigua, Alternative dispute resolution and Access to justice in Kenya (Glenwood
Publishers Ltd, 2015)
[7] Arbitration Act No. 4 of 1995,
Laws of Kenya.
[8] Nancy A. Welsh, ‘Perception of
Fairness in Negotiation’ Marquette Law Review Vol. 87, 2004 where she
identifies that people accepts decisions from processes that they feel they
have been treated procedurally fair.
[9] ibid.
[10] Civil Procedure Act Chapter 21,
laws of Kenya.
[11] Section 59A(4) of the Civil
Procedure Act Chapter 21, Laws of Kenya
[12] Section 59A(2) of the Civil
Procedure Act Chapter 21, Laws of Kenya provides for the selection criteria of
the Mediation Accreditation Committee by the Chief Justice, also see argument
by Kariuki Muigua ‘Conflict Resolution Through Mediation’ (Glenwood Publishers
ltd, 2017)
[13] Criminal Case no 86 of 2011
[2013]eKLR
[14] Ibid, letter sent by Mr. Bonyo for the Complainant to the
office of the Director of Public Prosecution seeking the withdrawal of the
matter in court.
[15] Civil procedure Rules, 2010
Chapter 21, Laws of Kenya
[16] Civil Procedure Act Chapter 21,
laws of Kenya.
[17] Section 1B of the Civil Procedure
Act, Chapter 21, Laws of Kenya.
[18] Limitation of Action Act Chapter
22, Laws of Kenya.
[19] Mediation Rules (Pilot project)
2015, Laws of Kenya.
[20] Section 7 of the Mediation Rules 2015
(pilot Project), Laws of Kenya.
[21] Civil Procedure Act Chapter 21,
laws of Kenya.
[22] Rule No.14(2) of the Mediation
(Pilot Project) Rules 2015, Subsidiary legislation, Chapter 21, Laws of Kenya.
[23] Rule No. 16 of the Mediation
(Pilot project) Rules 2015, Subsidiary Legislation, Chapter, Laws of Kenya.
[24] Rule No. 17 of the Civil Procedure
(Court Annexed Mediation) Rules 2022 Chapter 21 of the Laws of Kenya.
[25] Rule No. 18 of the Civil Procedure
(Court Annexed Mediation) Rules 2022, Chapter 21 of the Laws of Kenya.
[26] ibid
[27] Ibid nt 24, nt 25
[28] Constitution of Kenya, 2010
[29] The Civil Procedure (Court-Annexed
Mediation) Rules, 2022
[30] Rule 17 of The Civil Procedure
(Court-Annexed Mediation) Rules, 2022 allows for the representation of a
natural person at a mediation session
[31] Rule 18 of The Civil Procedure
(Court-Annexed Mediation) Rules, 2022 allows for the representation of a legal
person at a mediation session who should present evidence at the mediation
session that they have the requisite authority to act on behalf of the juristic
person and has the authority to bind the entity in any outcome that may be
reached at the mediation session.
[32] Rule 46 of The Civil Procedure
(Court-Annexed Mediation) Rules, 2022 provides for the requirements for a
private mediation to be registered and enforceable by a court of law.
[33] Chapter 21 of the laws of Kenya
vide the introduction of Section 59D that establishes the Mediation
Accreditation Committee with the mandate of determining the criteria for the
certification of mediators, propose the rules for the certification of
mediators; maintain a register of qualified mediators, enforce a code of ethics
for mediators and to set up appropriate training programs for mediators.
REFERENCES
Abramsom H.L, Mediation Representation 2nd Ed, (Oxford University Press, 2011)
Muigua K, Alternative dispute resolution and Access to justice in Kenya (Glenwood Publishers Ltd, 2015)
Muigua K, Resolving Conflicts through mediation (Glenwood Publishers Ltd, 2017)
Odhiambo k, “ADR Developments in Kenya” Weinstein International Foundation available at << https://weinsteininternational.org/kenya/kenya-bio-2/>>
Welsh N. A., ‘Perception of Fairness in Negotiation’ Marquette Law Review Vol. 87
A wonderful piece this is
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