Documentos de Académico
Documentos de Profesional
Documentos de Cultura
BY
HELD AT
I.
INTRODUCTION
1
The search for efficient and better ways of managing disputes has led to an
unprecedented growth of Alternative Dispute Resolution (ADR) mechanisms
globally in the last four decades. From its early beginnings, ADR has grown in
leaps and bounds to an extent that it has been institutionalized in the legal
systems in many countries to complement the conventional judicial system.
Indeed, the centrality of ADR in dispute resolution in recent times is
evidenced by the increasing developments in legal and institutional
frameworks worldwide. In recent times, ADR has flourished due to its
expeditious, cost-effective and non-confrontational way of resolving disputes
in comparison to the judicial dispute resolution method.
II.
Gakeri, J.K. Placing Kenya on the Global Platform: An Evaluation of the Legal Framework on
Arbitration and ADR, International Journal of Humanities and Social Science, Vol. 1, No. 6,
June 2011
Besides the Arbitration Act, a number of laws were enacted or amended with
provisions largely underscored the use of ADR in dispute resolution. For
instance, the Employment Act, 6 Labour Institutions Act,7 Labour Relations
Act8 and the Civil Procedure Act 9 have provisions that promote ADR. Further,
in order to strengthen the legal and institutional frameworks for arbitration,
Kenya has now enacted the Nairobi International Centre for Arbitration Act 10
to provide for the establishment of a regional centre for international
commercial arbitration and Arbitral Court among others.
Other actors that have played a key role in promoting ADR in Kenya include
the Chartered Institute of Arbitrators (Kenya Chapter) which was established
in 1984 as one of the branches of the Chartered Institute of Arbitrators
headquartered in London, and the Centre for Alternative Dispute Resolution.
It is, however, worth of noting that while arbitration has been substantively
provided for by the law, there is no substantive law governing the other
forms of ADR in Kenya.
III.
CONSTITUTIONAL
FRAMEWORK
RESOLUTION IN KENYA
OF
ALTERNATIVE
DISPUTE
As earlier stated, the Constitution recognizes ADR and calls for its use in the
resolution of disputes. Indeed, this is one of the principles for exercise of
judicial authority by the Courts and Tribunals under Article 159(2) of the
Constitution. It is worth noting that the use of the word including in the said
provision denotes the broad consideration of other forms of ADR beyond
reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms. The other relevant provisions of the Constitution are Article
67(2)(f) that empowers the National Land Commission to encourage the
application of traditional dispute resolution mechanisms in land conflicts;
Article 113 on the mediation Committees between the Senate and the
National Assembly on an impasse concerning ordinary Bills relating to county
governments; Article 189(4) that lays emphasis on ADR in resolving intergovernmental conflicts by way of negotiation, mediation and arbitration
among others; and Article 252(1)(b) on the general functions and powers of
Constitutional Commissions and Independent Offices which include
conciliation, mediation and negotiation.
12
13
14
IV.
The Civil Procedure Act and the attendant Rules of 2010 recognize ADR in the
resolution of disputes. For instance, sections 1A(1), 1A(2), 59, 59A, 59B, 59C,
59D and 81, and Order 46 of the Civil Procedure Rules, 2010, extensively
provide for ADR in civil matters pertaining to the Act. These provisions
obligate the courts to employ ADR mechanisms beyond arbitration in the
resolution of disputes before them to facilitate a just, expeditious, affordable
and proportionate resolution of disputes governed by the Act. Further, the
Act recognizes court-annexed mediation and gives it prominence in the
resolution of disputes before the court.
ADR is also anchored under the Environment and Land Courts Act whose
section 20 provides that:
(a) 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 dispute resolution including conciliation, mediation and
traditional dispute resolution mechanisms in accordance with Article
159(2)(c) of the Constitution.
(b)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 Act,15 Labour Institutions Act16 and the Labour Relations
Act17 also provide for ADR through the use of conciliation in labour disputes.
Further, the Commission on Administrative Justice is empowered under
section 8(f) of the Commission on Administrative Justice Act 18 to work with
different public institutions to promote alternative dispute resolution
methods in the resolution of complaints relating to public administration.
It is, however, instructive to note that the mechanisms provided for under
these statutes are limited and need strengthening. For instance, the National
Co-ordinating Summit under the Inter-governmental Relations Act may not
be effective since it comprises interested parties without involving a neutral
party. This creates the possibility of two outcomes: the 47 Governors may
gang up against the President, or the President takes his stand to defeat the
Governors. The lack of a neutral third party may affect the resolution of
disputes. This shortcoming seems to have been remedied by section 33 of
the Act which recognises the involvement of an intermediary. Secondly, the
mediation mechanism known as Mediation Team under the National
Government Co-ordination Act, may not achieve the intended objectives due
to its composition and even number of members. It may be necessary to
include a member who is disinterested in the matter to the Mediation Team.
Given the mandate of the Commission, it can provide a mechanism of
resolving inter-governmental and intra-counties disputes that may arise.
Further, it may provide support to the Joint Mediation Committee established
under Article 113 of the Constitution through participation as an observer or
intermediary.
V.
case any party is aggrieved by it, the only recourse available is to challenge
it in Court and not refuse to comply. Even in such cases, the Court has
limited jurisdiction in handling such matters.
VI.
19
However, it should also be noted that there are instances when litigation is
more appropriate than ADR mechanisms. In light of the foregoing, the
mechanisms should be seen as complementing each other and that none of
them is inferior or alternative to the other. As a matter of fact, in the African
context, ADR is the conventional mechanism while the colonial judicial
system is the alternative or complementary mechanism.
Court
Supreme Court
Filed
18
Resolv
ed
11
Pendin
g
7
20
Remarks
Rate of resolution was good owing to
the nature of matters handled by the
Court and duration of its existence
The Judiciary of the Republic of Kenya, State of the Judiciary and the Administration of
Justice, Annual Report, 2012-2013, Nairobi.
2.
Court of Appeal
3.
4.
5.
1,162
1,191
5,687
High Court
54,602
26,502
162,772
Magistrates
Courts
Kadhis Courts
60,484
485,976
488
163,13
2
257
116,75
4
190,09
3
657,76
0
Total
3,318
Source: The Judiciary of the Republic of Kenya, State of the Judiciary and the Administration of Justice,
Annual Report, 2012-2013, Nairobi.
As has been illustrated above, the sheer number of cases is usually reflected
in the Daily Cause Lists for judicial officers, which may not be reasonably
dealt with. The true state of affairs gets clearer upon close examination of
the population ratio to the number of judicial officers in Kenya which stands
at 78,000 people per every judicial officer. This compares poorly with the
statistics in other countries or regions such as the European Union where the
ratio is 1: 1,500, Rwanda at 1: 42,000 and China/India/Japan at 1: 10,000.
Apart from the officers being grossly overwhelmed, the backlog is also a
recipe for malpractices in the Judiciary as litigants seek preferential and
favourable treatment of their matters. It also causes delay, stifles growth,
creates uncertainty and raises the cost of litigation thereby impeding access
to justice and eroding faith in the legal system. It may be the case that some
of the matters pending before the Court can as well be handled through ADR
without resorting to litigation. It is in this regard that ADR comes in to
complement the formal judicial mechanisms. It is also instructive to note that
the above data does not include the complaints or disputes handled by other
bodies during the same period, which in ordinary circumstances, may have
ended up in Court. For instance, the Commission handled 18,257 matters out
of which 11,253 matters were resolved.
Based on the foregoing, Judges or the Judiciary should not look at such
bodies with suspicion or as competitors. Instead, they should be seen as
complementing each other.
VII.
THE
JURISDICTION
OF
THE
COMMISSION
ALTERNATIVE DISPUTE RESOLUTION
RELATING
TO
The Commissions mandate covers all State and Public Offices and Officers,
under both National and County government. The Commission investigates,
on its own motion, or upon complaint, any conduct in state affairs, or any act
or omission in public administration in any sphere of government, that is
alleged to be prejudicial or improper, or to result in any impropriety or
prejudice. In sum, the Commissions mandate encompasses the traditional
role of the Ombudsman as known the world over, with unique additional
responsibilities.
12
The Commission on Administrative Justice Regulations, Legal Notice No. 64, (Kenya
Gazette Supplement No. 54), 12th April 2013.
13
VIII.
complainant and his former employer, the Kenya Revenue Authority (KRA)
following his summary dismissal by the Authority on 23rd July 1998. The
complainant had admitted losing some funds while working for KRA as a
Clerical Officer, but attributed the loss to lack of concentration due to his
ailment and death of one of his siblings. He was subsequently charged in
court, but was acquitted under section 215 of the Criminal Procedure Code.
The complainant appealed twice against his dismissal on the grounds that
he had been acquitted by the court, but the appeals were rejected on the
basis that KRA had lost confidence in him. He thereafter lodged a complaint
with the Commission in 2012 when his second appeal was rejected by KRA.
The Commission took up the matter which culminated in a mediation in
2013 which resolved that the complainants dismissal would be changed to
termination in the Authoritys interest; he would be paid three months
salary in lieu of notice; and that he would paid his outstanding leave days.
Similarly, in relation to group complaints, the Commission successfully
resolved a complaint from 83 former employees of the Kenya Railways
Corporation who alleged delay and unresponsive conduct by the Kenya
Railways Staff Retirement Benefits Scheme in paying their gratuity. In
particular, they alleged that the Scheme had failed to pay them the
retirement gratuity in accordance with the Rules which provided for
payment within 30 days upon retirement from service. Further, they alleged
that the Scheme had failed to respond to their inquiries on the issue since
their retirement in July 2011. Upon receipt of the complaint, the Commission
intervened and the complainants were paid their gratuities and lump sum
dues by the Scheme. Further, the Commission was informed that the delay
in paying the dues had been occasioned by the liquidity constraints facing
the Scheme at that time.
In relation to inter-governmental disputes, the Commission has initiated or
been called upon to mediate on such disputes. Some of these include the
disputes relating to boundaries of the Counties, environmental use and
conservation and relations between State Organs such as the Senate and
Governors.
The Commissions jurisdiction in conducting ADR was recently recognised by
the Court in the Nyeri High Court Civil Petition No. 3 of 2014, County
Government of Nyeri versus the Cabinet Secretary for the Ministry
of Education, Science and Technology, and the Principal Secretary
for the Ministry of Education, Science and Technology, where it
15
16