UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS
Topic 11 Court Annexed mediation
Court Annexed mediation is a mediation process conducted under the umbrella of the court. The
Judiciary of Kenya implements court-annexed mediation within High Courts at the Family and
Commercial Divisions.
The clamor to introduce court-annexed mediation in Kenya has borne fruit and is now
evident under section 81(2)(ff) of the Civil Procedure Act, as amended by the Statute Law
(Miscellaneous Amendment) Act No. 6 of 2009. Section 81(2)(ff) provides for the selection of
mediators and the hearing of matters referred to mediation under this Act. Thus, parties who
have presented their cases to court may have their matter referred to mediation by the court for
resolution. The Statute Law (Miscellaneous Amendments) Act has amended sections 2 and 59 of
the Civil Procedure Act to provide for mediation of disputes. 1 Section 2 of the Civil Procedure
Act has been amended to define mediation as an informal and non-adversarial process where an
impartial mediator encourages and facilitates the resolution of a dispute between two or more
parties, but does not include attempts made by a judge to settle a dispute within the course of
judicial proceedings. This definition depicts mediation in the political process but then the
context within which mediation is to take place makes the whole process legal.2
Section 59 of the Civil Procedure Act has also been amended to introduce the aspect of
mediation of cases as an aid to the streamlining of the court process. This will involve the
establishment of a Mediation Accreditation Committee to be appointed by the Chief Justice
which will determine 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 programmes for mediators. 3
The law now requires the court either at the request of the parties, where it deems
appropriate to do so or where the law provides so, to refer a dispute presented before it to
mediation.4 Where a dispute is referred to mediation under subsection (1), the parties thereto
shall select for that purpose a mediator whose name appears in the mediation register maintained
1
Civil Procedure Act as Amended by The Statute Law (Miscellaneous Amendments) Act No. 12 of 2012,
Government Printer, Nairobi, 2012, whose date of commencement is 12th July 2012.
2
Section 2 of the Civil Procedure Act.
3
Section 59A of the Civil Procedure Act.
4
Section 59B (1) of the Civil Procedure Act.
1
UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS
by the Mediation Accreditation Committee.5 Such reference is, however, to be conducted in
accordance with the mediation rules. 6 Section 59B(4) provides that an agreement between the
parties to a dispute as a result of mediation under this part shall be recorded in writing and
registered with the court giving direction under sub section (1), and shall be enforceable as if it
were a judgment of that court. No appeal shall lie against an agreement referred to in subsection
(4).7
Under Section 59C, a suit may be referred to any other method of dispute resolution
where the parties agree or where the court considers the case suitable for referral. 8 Under Section
59C (2), any other method of alternative dispute resolution shall be governed by such procedure
as the parties themselves agree to or as the Court may, in its discretion, order. Any settlement
arising from a suit referred to any other alternative dispute resolution method by the Court or
agreement of the parties shall be enforceable as a judgment of the Court. 9 No appeal shall lie in
respect of any judgment entered under this section. 10 Further, all agreements entered into with the
assistance of qualified mediators shall be in writing and may be registered and enforced by the
Court.11
Pursuant to Order 46 rule 20 (3) it is only after a court-mandated mediation fails that the
court shall set the matter down for hearing and determination. The aforesaid amendments to the
Civil Procedure Act are not, in my view, really introducing mediation per se, but merely setting
up a legal process where a court can coerce parties to mediate and the outcome of the mediation
taken back to court for ratification. These amendments have introduced a mediation process
which is formal and annexed to the procedures governing the conduct of cases in the high court.
Informal mediation which may not require the use of writing is not provided for. The
codification of mediation rules in the Civil Procedure Act merely reflect the concept of
mediation as viewed from a westerner’s perspective and not in the traditional, political and
informal perspective.
How matters are referred to Court annexed Mediation (CAM)
5
Section 59B (2).
6
Section 59B (3).
7
Section 59B (4).
8
Section 59C (1).
9
Section 59C (3).
10
Section 59C(4).
11
Section 59D of the Civil Procedure Act.
2
UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS
A Judicial Officer looks at the issues forming the basis of the case so as to determine whether or
not the case is suitable for mediation. This determination is followed after matters undergo a case
screening process. However, if the issues form a substantive question of law that should be
determined by a judge, the matter will not be referred to CAM. Cases involving allegations of
issues such as child abuse, matters of a criminal nature and any issue generally raising a question
of law will not be referred to CAM.
The process of case screening
Case screening is the procedure whereby a Judicial Officer will analyze a case filed in the High
Courts’ Commercial or Family Divisions in Milimani and determine (based on certain criteria)
whether a matter should be referred to CAM or not. Since CAM is still in the pilot phase, the
screening criteria is currently under review by the Judiciary and shall be available to the public
once the same has been published. The High Court has set down internationally accepted
screening criteria to determine which matters will be referred to CAM. The court is also in the
process of training screening officers who shall review the details of each case filed in court with
the aim of identifying which matters are best suited for Mediation and which ones will go
through the usual litigation process.
All matters filed at the High Court Family and Commercial Divisions after 4th April
2016 have to undergo screening at inception to determine whether or not they will be referred to
CAM. This screening process is mandatory. However, matters filed in these divisions before the
inception of the pilot project may undergo screening to determine whether or not they will be
referred to CAM.
Once screening has been done and a matter has been referred to Mediation, the MDR will
give the parties in the matter notice of the referral within Seven (7) days. The MDR will then
nominate 3 mediators from the Judiciary’s register of accredited mediators and notify the parties
of the nominated mediators. This register can be found at the Mediation Accreditation
Committee or online here. The parties have to inform the MDR of their preferred mediator
within 7 days of receiving the notification. Parties are however free to choose any other preferred
mediator from the register of the accredited mediators if they don’t agree with the MDR’s list of
appointed mediators. This has to be done within 7 days of receipt of the notification of
nomination from the MDR.
3
UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS
Once parties settle on a preferred mediator, the MDR will appoint the preferred mediator
to handle the case. The appointed mediator will thereafter schedule a date for the initial
mediation and will notify the parties of the date, time and venue. Should parties reach an
agreement, they will sign a mediation agreement that is to be filed with the MDR within Ten (10)
days of signing the agreement.
The whole mediation process is expected to be concluded within Sixty (60) days, with a
provision of a Ten (10) day extension period. The timelines are determined by a number of
things:-
1. The screening process;
2. The time taken to appoint a mediator;
3. The time taken during the mediation process.
Advantages of Court Annexed Mediation
Court Annexed Mediation has the following advantages as opposed to litigation:-
It is faster
It is more cost-effective
It is private and confidential- all information exchanged during CAM is not admissible in
court.
It allows for flexible resolutions and settlements of disputes.
Disadvantages of Court Annexed Mediation
The procedure has been made mandatory by the CAM pilot rules for all matters filed
after 4th April 2016. Should parties be unwilling to undergo mediation, they have to file
an application for determination by the Judge.
CAM may not always result in a mediation settlement agreement which means that the
parties will have to go back to court to seek further directions.
This in a sense erodes the right of parties who wish to undergo litigation to present their
case in court.
4
UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS
From the timelines provided by the Judiciary, all indications are that this process will take a
substantially less amount of time than the normal ion process. This shall end up saving parties’
time, money and emotions that can be invested in other ventures. CAM therefore seems to be
beneficial to all parties involved. Parties might also be able to maintain a cordial relationship
after the mediation process, as mediation is not adversarial in nature but is based upon mutual
agreements between the parties involved.
