The Kenyan Civil Procedure (Court-Annexed Mediation) Rules, 2022 define “mediation” as the informal and non-adversarial process, conducted physically or virtually, whereby a mediator encourages and facilitates the resolution of a dispute between two or more parties, but does not include any attempt by a judge or magistrate to settle a dispute within the course of judicial proceedings.

The Nairobi Centre for International Arbitration (Mediation) Rules, 2015 define mediation as an alternative dispute resolution (ADR) process conducted privately and confidentially by a mediator, who is a neutral facilitator and helps the parties arrive at a mutually acceptable settlement.

Under the Code of Ethics of the Mediation Accreditation Committee of the Judiciary of Kenya, a mediator shall conduct mediation in accordance with the Code of Ethics and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.

Under the Nairobi Centre for International Arbitration (Mediation) Rules, 2015 a mediator:

• shall be independent and impartial in the discharge of his or her duties;
• conduct a mediation in a manner that he or she considers appropriate, while taking into consideration:
  • the circumstances of the dispute;
  • the wishes of the parties; and
  • any practical considerations that may be relevant in the prompt resolution of the dispute;
• may communicate with the parties (prior to or during the mediation):
  • jointly or separately;
  • either directly or through their representatives; or
  • directly, by telephone, video conference or in person; and
• should promote public confidence in mediation as a process for resolving disputes.

In Kenya, mediation increases the control that parties have in the resolution of disputes compared to litigation. Parties appoint a mediator and decide on the rules and procedures to govern the process. This is in contrast to litigation, where parties obtain a settlement but control resides with a judge. Further, the costs of mediation are lower than those of litigation and arbitration as the mediation process generally takes much less time than moving a case through the standard legal channels. In addition, mediation is private and confidential and limited only to the parties, unlike court hearings, which are public in nature.

The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In arbitration, a neutral third party serves as a judge and is responsible for resolving the dispute. Litigation involves parties presenting their case against each other before a judge, who weighs the evidence and makes a ruling. Lawyers typically dominate litigation and arbitration, whilst mediation is party-driven and party-autonomous.

Mediation is governed by the Constitution of Kenya 2010, while arbitration and litigation are governed by the Arbitration Act 1995, the Arbitration Rules, the Civil Procedure Act (Chapter 21) and the Civil Procedure Rules 2010, respectively.

Article 159(2)(c) of the Constitution of Kenya 2010 obligates courts and tribunals in the exercise of judicial authority to promote the application of ADR mechanisms.

Article 189(4) of the Constitution of Kenya 2010 states that national legislation shall provide procedures for settling intergovernmental disputes by ADR mechanisms including mediation.

Rule 11 of the Supreme Court Act 2011 states that the Court may refer any matter for hearing and determination by an ADR mechanism.

The Commission of the Independent Election Boundaries Commission under section 17(1), (3)(b) of the Second Schedule Election Act 2011, may establish peace committees in every constituency during elections and referendum periods, which shall have powers to mediate in political disputes in constituencies.

Section 59B of the Civil Procedure Act No. 12 of 2012 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 accordance with the Civil Procedure (Court-Annexed Mediation) Rules 2022. Furthermore, section 59D of the Civil Procedure Act empowers the court to enforce private mediation agreements.

The Land Act 2012 is the substantive regime for matters pertaining to land in Kenya and promotes the application of ADR mechanisms as they facilitate the implementation of the constitutional principles of public participation, inclusiveness, protection of the marginalized, non-discrimination, equity and social justice.

Under section 5(f) of the Act, subsection 2(f), of the National Land Commission Act 2012, it is mandated to develop and encourage ADR mechanisms in land dispute handling and management.

Section 8(f) of the Commission on Administrative Justice Act 2011 mandates it to work with various public institutions to promote ADR methods in the resolution of complaints relating to public administration.

Under section 20 of the Environment and Land Court Act No. 19 of 2011, and section 15 of the Employment and Labor Relations Court Act No. 20 of 2011, the courts can adopt and implement, on their own motion, with the agreement of or at the request of the parties, any other appropriate means of ADR, including mediation, in accordance with Article 159(2)(c) of the Constitution. Further, the Act provides that in cases where ADR is a condition precedent to any proceeding before the court, the court must stay proceedings until such condition is fulfilled.

The Community Land Act 2016 (Community Land Act, No. 27 of 2016, Laws of Kenya) provides that, where a dispute relating to community land arises, the parties to the dispute may agree to refer the dispute to mediation (Community Land Act, No. 27 of 2016, section 40(1)).

Under section 31 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Legal Notice No. 117), the court may refer a matter for hearing and determination by an ADR mechanism under court-annexed mediation as an alternative forum.

Most communities in Kenya have used mediation and other alternative justice systems in resolving their conflicts. Each of the 42 tribes in Kenya have their own dispute resolution mechanism.

Article 159(1) of the Constitution of Kenya 2010 provides that judicial authority is derived from the people and vests in and is to be exercised by courts and tribunals established by or under the Constitution with regard to the principles inter alia promoting the use of ADR mechanisms in conflict management.

Further, Order 46, Rule 20 of the Civil Procedure Rules, read together with sections 1A and IB of the Civil Procedure Act No. 12, therefore, obligates the court to employ ADR mechanisms to facilitate the just, expeditious, proportionate and affordable resolution of all civil disputes governed by the Act.

To augment this, the Evidence Act, Chapter 80 was amended to relax the rules of evidence in informal hearings, such as rules relating to character evidence, statements by persons who cannot be called as witnesses, competency of witnesses and rules as to examination of witnesses.

Most communities’ port of call when there’s a dispute is the traditional Council of Elders or the Nyumba Kumi as it is simple and straightforward, free, accessible, built on trust, restorative and the settlement easy to implement.

These elders and institutions are accessible to the populace and their decisions are respected. Traditional conflict mechanisms have been effective and their decisions or resolutions have been recognized by the government.

In most Kenyan communities, the institution of the Council of Elders remains a strong regulatory institution. Most disputes are submitted to the elders for resolution before parties consider the court process. The Councils of Elders exercise jurisdiction over both interpersonal disputes relating to land, marriage and inheritance, and minor crimes. Mediation has been used to resolve disagreements between landowners and livestock farmers over the use of water sources in the Lake Victoria Basin Water Resources Management Program (see “The mediating effect of effective decision making on the design of water resource management ICT model: The case of the management of Lake Victoria Basin” by G. Odongtoo, D. Ssebuggwawo and P. Okidi Lating (2020), 215). Mediation has also been employed in the initiative to settle conflicts concerning the utilization of water supplies for agriculture and other objectives. The program has used mediation to sort problems in a friendly and appropriate way rather than turning to a costly and time-consuming lawsuit. This has encouraged sustainable growth in the area by minimizing conflict and fostering collaboration among critical parties.

Under The Civil Procedure (Court-Annexed Mediation) Rules 2022, where there is a private settlement agreement arising out of a mediation conducted by a qualified mediator in respect of a dispute that is not the subject of a pending court case, the courts are empowered to enforce these agreements under section 59D of the Civil Procedure Act.

Under section 59B(1) of the Civil Procedure Act, Chapter 21 (Government Printer, Nairobi), the court may direct that any dispute presented before it be referred to mediation at the request of the parties concerned, where it deems it appropriate to do so, or where the law so requires. 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 (ibid, Order 46, rule 20(3)).

The Court-Annexed Mediation Rules 2022 provide that every civil action instituted in court after their commencement shall be subjected to mandatory screening by the Mediation Deputy Registrar, and those found suitable may be referred to mediation.

Under Rule 28 of the Civil Procedure (Court-Annexed Mediation) Rules 2022, if the parties to the dispute consistently and deliberately fail to comply with any of the mediator’s directions, or consistently and without any justifiable reason fail to attend the mediation sessions, the mediator is mandated to lodge a certificate of non-compliance with the Mediation Deputy Registrar, who then forwards the same to court. From the foregoing, the court can then order the parties under Rule 28(4) to attend further mediation sessions on terms to be set by the court, strike out the pleadings of the non-complying party, order that the defaulting party pays costs, or make any other orders that it may deem fit. The defaulting party may also be cited for contempt of court.

Conflict resolution and peace-making is an everyday occurrence within Kenyan communities, which sees, for example, conflicting parties sitting down together and agreeing on the issues affecting them. Inter-community conflicts are also addressed through mediation and negotiation in these informal discussions, which would be facilitated by the Council of Elders as ‘mediators’ or ‘arbitrators’.

Under the court-annexed mediation process, a court before which a case is being heard may, at any stage before final judgment, refer the case to mediation in accordance with section 59B of the Civil Procedure Act or to another method of ADR under section 59C. Any case instituted before the coming into operation of the Rules was subject to screening. A case that is determined to be suitable for mediation shall, by order in writing given by the Mediation Registrar, be referred to mediation with or without further orders. Further, the parties to a case may, by mutual consent, request the court to refer the case to mediation.

The application of mediation in social developments has been regarded as one of the most successful impacts of ADR mechanisms in the Kenyan legal system. Mediation has been successful in various fields, such as conflict resolution, advancing gender equality, community-oriented actions, and political, family, commercial and civil disputes.

The court-annexed mediation process was operationalized on a pilot basis from April 2016 to July 2017 and targeted the Family and Commercial Divisions of the High Court, Nairobi, due to the contractual nature of disputes and the need to preserve commercial and family relations. Upon completion and review of the pilot phase, the Directions were amended in 2018 to include civil actions filed in the High Court, the Environment and Land Court, the Employment and Labour Relations Court, and the Subordinate Courts.

Generally, parties can have virtually all disputes between them undergo mediation due to the doctrine of party autonomy; however, fraud is deemed a criminal offence and, when applied in criminal cases, mediation takes two forms in Kenya: victim–offender mediation and case-management mediation, also known as Voluntary Settlement Conferencing (see “Pressure to Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining” by Taylor C. Leonard (2014), 167).

Dispute resolution clauses mandating mediation in contracts are not common in Kenya due to lack of awareness. Most contracts specify arbitration as the ADR mechanism to deal with any disputes that may arise between the parties. This is also cemented by the fact that Kenya has the Arbitration Act of 1995, which governs all arbitrations, however, the Alternative Dispute Resolution Bill, which will govern mediation in Kenya, is yet to be enacted by parliament.

If a contract does mandate mediation, then the same is enforceable under the Civil Procedure Act, along with the Civil Procedure (Court-Annexed Mediation) Rules 2022.

A mediation settlement agreement is governed by the Civil Procedure (Court-Annexed Mediation) Rules 2022. Rule 32 (ibid) states that, once the parties agree and the same is written and duly signed by them, the parties’ advocates or representatives and the mediator, then the agreement is legally binding. Rule 34 (ibid) further stipulates that, once the settlement agreement is filed in court, the Mediation Deputy Registrar shall, within 10 days place the settlement agreement before the trial court for adoption.

In the case of a private settlement agreement reduced into writing in the language of the court and entered into by the parties with the assistance of a qualified mediator following the conclusion of an ad hoc mediation process or a mediation arising under a contract, this may be presented at the Mediation Registry under Rule 43 (ibid) for the purposes of registration and adoption by the Court.

In cases of partial settlements, Rule 35 (ibid) directs that the settlement agreement shall concisely state the issues that the parties were able to agree upon and shall be adopted in the same way as a full settlement agreement, however, the court shall, at the time of adoption, give appropriate directions regarding the execution of the partial settlement and the expeditious disposal of the issues that remained unresolved.

The training threshold is a five-day, 40-hour, mediation course. The mediator is then certified.

There is no governing body of mediators in Kenya, however, the Alternative Dispute Resolution Bill 2021, once enacted, will strengthen, guide, support, and regulate the growth of ADR in Kenya and specifically mediation (see Alternative Dispute Resolution Policy at www.ncia.or.ke).

The Judiciary of Kenya, under the Code of Ethics of the Mediation Accreditation Committee, states that a mediator shall conduct mediation in accordance with the Code of Ethics and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.

Under the Nairobi Centre for International Arbitration (Mediation) Rules, the Code of Conduct is designed to serve as fundamental ethical guidelines for persons appointed to mediate a dispute, to guide the conduct of mediators, to inform the mediating parties, and to promote public confidence in mediation as a process for resolving disputes.

The mediator should adhere to the rules of the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members.

In Kenya, dispute resolution mechanisms resemble the traditional methods used by the local communities in managing their disputes and/or conflicts, embedded in the culture and customs of the communities and part and parcel of the social fabric promoting restorative justice as opposed to retributive justice. In this regard the victims, offenders and the entire community are involved and participate in the definition of harm and in the search for a solution acceptable to all stakeholders.

The Council of Elders, who are members of the community appointed on the basis of status or lineage, are the mediators. In the mediation sessions there is public participation and customary law is one of the factors considered in reaching a compromise. The process is voluntary and the decision is based on agreement. The decision is confirmed through rituals aimed at reintegration. The enforcement of the decisions is through social pressure or fear of curses.

Under the judiciary, the mediation process is governed by Part II of the Civil Procedure (Court-Annexed Mediation) Rules 2022. Each case shall be screened upon the close of pleadings or at any other appropriate stage as the court may determine the suitability of the case for mediation.

Where a case has been referred to mediation after screening under Rule 6, a mediation file shall be opened under Rule 9, which is distinct from other court files. The Mediation Deputy Registrar will notify the parties of the decisions within seven days of completion of screening that the matter has been referred to mediation under Rule 10. Upon such notification, parties are required to file a case summary within seven days. The Mediation Deputy Registrar will appoint a mediator under Rule 13 from the register of accredited mediators, which is maintained by the Mediation Accreditation Committee, and immediately thereafter notify the appointed accredited mediator. However, parties under Rule 10(1) are at liberty to state their preference from the accredited mediators and notify the court within seven days after receipt of the notification. Each party or party’s advocate shall, within seven days thereafter, file a case summary and serve it upon the mediator and all other parties.

The court under Rule 14, shall, within 14 days after the appointment of a mediator, list the matter for mention before the Mediation Deputy Registrar for directions as to the general conduct of the mediation.

Under Rule 15, the first mediation session is to be conducted within seven days after the date of notification of appointment. Rule 23 permits the mediation proceedings to be conducted either virtually or in person. Rule 30 states that the mediation process shall come to an end upon: the filing of the settlement agreement and mediator’s report, where a settlement is reached; the filing of a non-compliance report; or expiry of 60 days from the date that the mediator was notified of his appointment to handle the case or, where the period was extended, upon the expiry of such extended period.

The mediator shall, within 10 days after the conclusion of the mediation, file the settlement agreement in court under Rule 32. Once the settlement agreement is filed in court under Rule 34, the Mediation Deputy Registrar shall, within 10 days, place the settlement agreement before the trial court for adoption.

Most communities in Kenya have used mediation and other ADR methods, including Alternative Justice Systems, to resolve their conflicts for centuries. It was customary and an everyday occurrence for people to sit down informally and agree on certain issues, such as the allocation of resources in traditional African societies. Since conflicts have the potential to break down the economic, social and political organization of a people, most Kenyan communities had certain principles and religious beliefs that they observed and that fostered unity and peaceful coexistence (see “Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework” by Kariuki Muigua, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution (2017), Volume 5, No. 1, pp. 74–104).

Each of the 42 ethnic groups in Kenya had its own conflict management mechanisms. Traditional conflict resolution mechanisms have been effective and their declarations and resolutions have been recognized by the government. They used negotiation, mediation, mediation-arbitration, and conciliation in resolving their disputes. This could happen informally through people sitting down and agreeing to resolve their differences. The mechanisms used included kinship systems, joking relations, a third-party approach, consensus approach, Riika (age sets) social groups, female/male elders, and blood brotherhood. Most of these mechanisms resembled modern-day ADR mechanisms. However, the court system is the main dispute settlement mechanism used in Kenya today.

With the enactment of the Court-Annexed Mediation Rules 2022, the process of mediation has been simplified. However, it faces several challenges. Voluntariness and party autonomy over the process and the outcome may be diminished as it is pursuant to an order of the court, and the settlement has to be returned to court for ratification (see “Court Sanctioned Mediation in Kenya — An Appraisal” by Kariuki Muigua, op cit). Further, mandatory mediation takes away the voluntariness of this process by taking away the parties’ freedom of choosing a dispute resolution mechanism from the onset. However, the principle of voluntariness isn’t taken away absolutely — a party can walk away from the mediation at any time.

While ADR mechanisms have generally been hailed as being cost effective, this characteristic may be defeated in court-annexed mediation if referral of a case to mediation happens after parties have incurred costs, such as legal fees, through drafting of pleadings and filing thereof. Further, where parties fail to reach a settlement agreement and such a case reverts to the court, the costs of the entire process end up being higher than parties had intended (ibid).

There is limited information among most Kenyans about mediation and, as a result, the Kenyan citizenry is yet to fully embrace mediation as a mechanism for conflict management. This can be clearly seen from the fact that most Kenyans resort to litigation whenever a dispute arises, necessitating screening and referral of some to mediation for settlement of disputes. The Kenyan Judiciary in its annual report noted that there were 649,310 pending cases at the end of the financial year 2022/2023. A total of 4,708 matters were referred to mediation in 2022/2023, an increase of 93% compared to the previous year, of which 4,451 were settled successfully. The overall annual settlement rate for matters referred to court-annexed mediation was 95% (State of the Judiciary and the Administration of Justice Annual Report 2022–2023).

Mediation is an alternative and appropriate process as it empowers the participants to speak for themselves and to determine the outcome of their own dispute. It enables the parties to reach an outcome that better meets their needs than a judicial decision. It produces an agreement that is more likely to be complied with and which may be more likely to finally resolve the dispute and help to maintain or improve personal or business relationships.

The “without prejudice” privilege will apply in most mediations, if not all. The privilege will apply regardless of whether or not reference is made thereto by the parties, provided the common law requirements are satisfied, and to settle disputes in a situation in which settlement is not actually reached.

Mediation is hailed to be cost effective, flexible, efficient and confidential. It also preserves relationships, provides a range of possible solutions and there is autonomy over the process and the outcome, thus, the outcome is usually acceptable and durable. Similarly, mediation addresses the underlying interests, needs and priorities of the parties, preventing the dispute from flaring up ever again. Further, the timing of the mediation process is within the control of the parties.

Nevertheless, mediation has the disadvantage of being non-binding, thus, even though parties have agreed to submit a dispute to mediation, they are not obliged to continue with the mediation process after the first meeting and the continuation of the process depends on their continuing acceptance of it.

Kenyans are still believers in having their day in court. Many people would rather have an order of the court or a decision of an administrative tribunal to enforce, rather than a negotiated agreement that is wholly dependent on parties’ goodwill. Even where the law has put in place enforcement mechanisms for negotiated settlements, people still desire the coercive nature of courts and other tribunals, as opposed to the cordial talks that take place in mediation.

As mentioned earlier, the traditional dispute mechanisms view the problem as that of the whole community or group, and the victims, offenders and the entire community are involved and participate, thus this type of mediation cannot take place remotely.

Rule 54 of the Civil Procedure (Court-Annexed Mediation) Rules 2022 states that a settlement agreement, including private settlement agreements resulting from mediation proceedings undertaken through a virtual platform, shall be valid and capable of enforcement in the same manner as settlement agreements resulting from mediation proceedings conducted in person.

In the financial year 2021/2022, a total of 2,445 matters were referred to mediation by various courts, which was an increase of 23% (460 matters) as compared to the previous period. These matters, together with 228 matters that were pending under court-annexed mediation, formed a cumulative workload of 2,673 matters. Of these, 1,918 were processed and 755 matters were pending as of June 30, 2022. During the period under review, of 1,918 matters that were processed through mediation, 962 had settlement agreements, that is, a settlement rate of 50%. These settlements were full agreements in 803 matters (84%), partial agreements in 118 matters (12%) and consents in 41 matters (4%) (State of the Judiciary and the Administration of Justice Annual Report 2021–2022).

During the financial year 2022/2023 reporting period, 4,708 cases were referred to court-annexed mediation. This was an increase of 93%. In the financial year 2022/2023, 4,451 cases were concluded, a rate of 95% (State of the Judiciary and the Administration of Justice Annual Report 2022–2023).

No.