Alternate Dispute Resolution Law at Kenya
Alternative Dispute Resolution (ADR) Law in Kenya
Kenya has a progressive legal framework for Alternative Dispute Resolution (ADR), which includes mediation, arbitration, conciliation, and negotiation. ADR is recognized as an important tool for promoting access to justice and alleviating the burden on the formal court system. The legal framework for ADR in Kenya has been significantly enhanced in recent years to promote more efficient, cost-effective, and timely resolutions to disputes.
Legal Framework for ADR in Kenya
The Arbitration Act, No. 4 of 1995
The Arbitration Act governs arbitration in Kenya. It provides the legal framework for the conduct of both domestic and international arbitration. The Act is based on the UNCITRAL Model Law on International Commercial Arbitration, making it in line with global best practices.
Arbitration Procedures: It sets out the procedures for the appointment of arbitrators, the conduct of arbitration hearings, and the enforcement of arbitral awards.
Enforcement of Arbitral Awards: Arbitral awards, both domestic and foreign, are enforceable in Kenya, subject to limited grounds for appeal or challenge.
International Arbitration: The Act ensures that Kenya is an attractive location for international arbitration.
The Industrial Court (now the Employment and Labour Relations Court) Act
This Act promotes the use of ADR in resolving labor disputes. It encourages mediation and conciliation in the settlement of disputes between employers and employees.
The Civil Procedure Act, Cap. 21
Under Section 59A of the Civil Procedure Act, the courts in Kenya have the authority to encourage ADR, particularly mediation. Courts are empowered to refer disputes to mediation with the consent of the parties.
The Mediation Act, 2013
The Mediation Act, 2013 is a key piece of legislation aimed at promoting mediation in Kenya. The Act establishes the Mediation Accreditation Committee and sets out the procedures for mediation in civil disputes. It covers areas such as the confidentiality of the mediation process, the role of mediators, and the enforceability of mediated agreements.
The Small Claims Court Act, 2016
The Small Claims Court Act encourages the use of ADR for resolving disputes in cases involving small amounts of money. The law provides that disputes are first referred to conciliation or mediation before court intervention.
The Family Court (Mediation) Rules, 2015
These rules promote the use of mediation in family law cases. They encourage parties involved in family disputes, such as divorce or child custody, to attempt settlement through mediation before proceeding to a full trial.
The Constitution of Kenya, 2010
The Constitution of Kenya explicitly supports the use of ADR by recognizing the right to access justice in an efficient, timely, and affordable manner. It provides that the state shall encourage and promote the use of ADR in the resolution of disputes.
Types of ADR in Kenya
Arbitration
Arbitration is one of the most widely used methods of ADR in Kenya, particularly in commercial, construction, and trade disputes.
The Arbitration Act, 1995 governs both domestic and international arbitration. The arbitration process is binding and is intended to be quicker and more cost-effective than court proceedings.
The Kenya Arbitration Centre provides services for arbitration and promotes the use of arbitration in the country.
Mediation
Mediation is a voluntary and confidential process where a neutral third party (mediator) assists the disputing parties in reaching a settlement. It is commonly used in civil, family, and commercial disputes.
The Mediation Act, 2013 provides the framework for conducting mediation and offers a clear process for accreditation of mediators.
Mediation is now mandatory in many civil disputes under the Civil Procedure Rules, especially in family and commercial cases.
Conciliation
Conciliation is similar to mediation but involves a more active role for the conciliator, who may propose solutions to the parties.
Conciliation is widely used in labor disputes and is governed under the Industrial Court Act (now part of the Employment and Labour Relations Court).
It is also common in disputes involving small claims.
Negotiation
Negotiation is an informal ADR process where parties engage directly with each other to resolve disputes. It is often the first step before proceeding to mediation or arbitration.
This process is typically used in commercial transactions, family disputes, and some employment matters.
Tribunals and Lok Adalats
Tribunals: Certain specialized disputes, such as tax or land disputes, may be referred to specialized tribunals established under specific laws.
Lok Adalats: These are informal justice delivery systems that aim to resolve disputes in a manner that is quick, cost-effective, and without formality. Lok Adalats are widely used in Kenya, especially for public service disputes.
Key Features of ADR in Kenya
Encouragement by Courts: Courts in Kenya encourage ADR, particularly mediation, and have the authority to refer disputes to ADR processes with the consent of the parties. The Civil Procedure Act and Mediation Act mandate court-annexed mediation in certain cases.
Efficiency and Cost-Effectiveness: ADR processes such as arbitration and mediation are often more cost-effective and quicker than formal litigation. The goal is to reduce the caseload of the courts and provide a faster resolution of disputes.
Voluntary Participation: Mediation and negotiation are generally voluntary processes, where parties can decide whether or not to engage. However, some processes like arbitration are binding once the parties agree to arbitration clauses in contracts.
Confidentiality: ADR processes like mediation are generally confidential, meaning that information shared during the process cannot be used against any party in court if the matter does not settle.
Enforceability of Agreements: Agreements reached through ADR processes, such as mediation or arbitration, can be made enforceable through the courts. A settlement reached in mediation or arbitration can be enforced as a judgment in court.
Public Awareness: While ADR is recognized in the legal framework, increasing public awareness of ADR and its benefits remains a challenge. Many people are still unfamiliar with the ADR processes and their advantages over traditional court procedures.
Institutions Supporting ADR in Kenya
The Kenya Arbitration Centre (KAC)
The Kenya Arbitration Centre is a key institution for promoting arbitration in Kenya. It offers a platform for arbitrations, provides training for arbitrators, and develops best practices for arbitration.
The Mediation Accreditation Committee (MAC)
The Mediation Accreditation Committee is responsible for the accreditation of mediators in Kenya. It ensures that mediators meet the necessary standards to conduct mediations effectively.
The Judicial Service Commission (JSC)
The JSC plays a role in promoting and overseeing the use of ADR in the Kenyan judicial system. It works to integrate ADR into the court system and provides training for judges and other legal professionals.
The Office of the Ombudsman
The Ombudsman handles complaints from the public and plays a key role in resolving disputes through ADR methods such as conciliation and negotiation.
Challenges and Developments
Awareness and Accessibility: While Kenya has a robust legal framework for ADR, public awareness, especially in rural areas, remains a challenge. Efforts to educate the public about ADR and its benefits are ongoing.
Cultural Resistance: Some people are still accustomed to litigation and may resist ADR methods due to a lack of understanding of how these processes work or skepticism about their effectiveness.
Capacity of ADR Institutions: Although there is a growing number of institutions supporting ADR, there is still a need to enhance their capacity and infrastructure to handle an increasing number of cases.
Conclusion
Kenya’s legal framework for Alternative Dispute Resolution (ADR) is robust and comprehensive, incorporating key mechanisms such as arbitration, mediation, conciliation, and negotiation. The country’s courts and legal system strongly encourage ADR as an effective way to reduce the burden on the judiciary and promote quicker, more cost-effective resolution of disputes. Continued efforts to raise public awareness, build institutional capacity, and expand ADR services will further enhance Kenya’s ADR system.
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