Alternative Dispute Resolution in Kenya

Our courts of law are the most known places for resolving disputes. I think we have got courts in nearly every part of the country and it’s not uncommon to hear one person telling another one, “see you in court”. This is purely because it is very well known that that is where disputes are resolved. Obviously, not all disputes that occur, actually end up in court. Probably, it’s only 5 to 10% of all the disputes in society that end up in a court of law.

Alternative Dispute Resolution in Kenya

The other disputes either are resolved using a different mechanism or sometimes they’re not resolved at all, and they could even result in people being violent with each other. Disputes range from commercial disputes like for example, Traders. One Trader has supplied Goods to another one, or to a to a client who has not paid. They could be contracts which have not been honored, or they could be related to employment where an employee feels that their employment was terminated unfairly.

Another category of disputes, could be just the Civil disputes between people. Maybe your neighbor has extended his boundary Beyond where it should be. All these are disputes. Majority of them are actually resolved outside the court system. That is what is referred to as alternative dispute resolution mechanisms.

Types Of Alternative Dispute Resolution in Kenya

There are three or four well known or well-articulated mechanism of resolving disputes.

Negotiation

The most basic one is negotiation. With negotiation essentially, it’s the two parties who are in a dispute. The two disputants, the two parties who are in a dispute coming together and working it out between themselves. They find out where they misunderstood each other, and somehow, they’re able to negotiate and come up with a solution. That’s a good way of resolving disputes because first it remains confidential to the parties, it is inexpensive because they didn’t have to pay any third party to get involved.

Mediation

When disputes cannot be resolved in that manner, they (the parties) might choose to bring in a third person who can handle a mediation process. That particular person is referred to as a mediator and the work of the mediator is not to give a solution essentially is just to help the two parties who are in a misunderstanding to communicate so that the two parties themselves end up coming up with the solution. The advantage of mediation is that one it preserves the relationship because there there’s no winner or loser. The two parties have actually progressed carefully and come up with a solution.

Conciliation

Now, mediation can be enhanced a little, where the parties authorize the mediator to come up with a proposed solution. In that particular case he moves from being a mediator to being a conciliator. A conciliator essentially is given Authority by the parties to suggest to them what could be a good solution for the problem that is facing them.

Arbitration

If the dispute goes beyond that point, now you can bring in an arbitrator. An arbitrator as compared to the other two is a more structured person. Arbitration is a more structured process because there’s even the arbitration Act of 1995 which shows how the process will be conducted. Arbitration will begin with an arbitrator being appointed and both parties accepting the arbitration. Then the arbitrator will set up the rules because he is the master of the procedure that will be followed. He gives each of the parties a chance uh to present their case sometimes he might even call a expert witness to help him understand the subject that is being arbitrated upon.

Thereafter the arbitrator now Retreats and writes his judgment which is called an award. It’s important to know that an arbitrator’s award in Kenya is not appealable in any court unless there were mistakes which occurred during the arbitration. Like maybe the arbitrator did not give the parties adequate chance to be heard, or maybe one of the parties feels like the arbitrator was compromised. In those kinds of situations an appeal can be made in a court of law but the basic substance of the arbitration is not appealable.

Conclusion

Our constitution of 2010 anticipates that alternative dispute resolution mechanisms should be encouraged. In fact, not too long ago our Chief Justice referred over 10,000 cases in the banking sector cases which had been filed by banking institutions to mediators to see whether those cases can be can be resolved outside the court and the results have been um very encouraging.