Legitimising alternative dispute resolution in kenya. Barasa and eva mukami team up to provide an analysis of alternative dispute resolution mechanisms in the context of online commerce. Alternative dispute resolution in kenya alb article. Protecting the protecting confidentiality of dispute. So when family members, neighbors, or business partners have a dispute, mediation may be the adr process to use. Article 1592c of the constitution of kenya recognises mediation and encourages it as a form of dispute resolution to be applied by courts. Alternative dispute resolution in environmental disputes.
However, many parties still opt to have their attorney represent them at adr proceedings. Advantages and disadvances of dispute resolution process. Sean omondi and george king of bowman gilfillan africa groups coulson harney office in nairobi, set out the key alternative dispute resolution mechanisms available in kenya. Mediation may be particularly useful when parties have a relationship they want to preserve. A dispute shall not be eligible for alternative dispute resolution where.
Ciarb kenya chartered institute of arbitrators, kenya. Regulating alternative dispute resolution adr practice in kenya. Kenya access justice through the informal and a lternative dispute resolution mechanisms. The term alternative dispute resolution or adr is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, fullscale court processes. Alternative dispute resolution adr methods can be used in multiparty disputes to reach an agreement that is fair to all parties in an atmosphere of cooperation and mutual respect and this can. However, the 1990s appear to have witnessed an enormous growth in the adr. This is a mediation process conducted under the umbrella of the court. The arbitration agreement unknown june 03, 20 arbitration under kenya law is a process in which a third party neutral or an odd numbered panel of neutral persons render a decision on the merits of a case. Three primary alternative dispute resolution processes. Enhancing access to justice through alternative dispute. This is in addition to other legislative frameworks which provide for nonformal methods of dispute resolution. It covers a broad range of cases, including litigation and arbitration in the commercial, employment, procurement and insolvency spaces. They may have particular value in stabilization and statebuilding efforts when judicial institutions are weak and social tensions are high.
As a result of this growing uptake of mediation in kenya and the world over, there is an increasing demand for qualified mediators who have undergone recognized 40 hour mediation trainings and received subsequent accreditation. The judiciary ombudsman is mandated to enforce administrative justice in the judiciary by addressing maladministration through effective complaint handling structures. Alternative dispute resolution adr, or external dispute resolution edr, typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. Some are court ordered, and not all require the presence of attorney. Access to justice is considered to be a critical part of universal human rights. Mediation is also effective when emotions are getting in the way of resolution. Kenya, 2010,1 courts and tribunals are enjoined, in exercising judicial authority, to apply alternative forms of dispute resolution. Preventing conflict and enhancing stability by ernest e.
Mediation and conciliation the law reform commission is an independent statutory body established by the law reform commission act 1975. Conflict resolution consortium, available at floridaadr. As an alternative to the lengthy and rigid court processes in kenya which are an impediment to access to justice. Alternative dispute resolution adr in tanzania mkundi. The second category is a more informal option for parties and is labeled alternative dispute resolution adr. Types of alternative dispute resolution adr legalmatch. Options dispute resolution procedures can be split into two categories. Parties can avoid violence through the application of negotiation, mediation and conciliation. Cms daly inamdar advocates has a sizeable dispute resolution team across its nairobi and mombasa offices. This paper offers a status analysis of adr and informal community justice systems as a means of access to justice for the kenyan. Development of adr mechanisms in kenya and the role of adr in. Strathmore law journal, june 2015 are bound by the decisions of the supreme court. Basic overview of adr workplace dispute resolution section february 2, 1999.
Chapter 3 different modes of alternative dispute resolution adr 3. The court, therefore, found itself having jurisdiction since neither the mou nor art. Its primary purpose is to provide practical guidance on the application of the confidentiality provisions of the administrative dispute resolution act of 1996 the adr act. The process of arbitration in kenya daniel ngayo let the forum fit the fuss1 introduction alternative dispute resolution adr as a means or process of settling disputes encompasses different methods commonly known as alternative dispute resolution mechanisms. Alternative dispute resolution consists of a variety of ways to dispute resolution. Access to justice and alternative dispute resolution. In the 1990s, congress passed three statutes the administrative dispute resolution acts of 1990 and 1996, and the alternative dispute resolution act of 1998 which, collectively, required each agency to adopt a policy encouraging use of adr in a broad range of.
In many of these approaches there is a neutral individual who assists disputing parties in resolving their disagreements. Adr increases the parties opportunities to resolve disputes prior to or during the use of formal administrative procedures and litigation. The main alternative dispute resolution adr methods available in kenya are negotiation, conciliation, mediation and arbitration. The role of alternative dispute resolution mechanisms on. The term can refer to everything from facilitated settlement negotiations. Alternative dispute resolution and peacebuilding in africa. There are several types of alternative dispute resolution methods, and each process has its advantages. With over 14,000 members located in more than 3 countries. Making kenya a hub for arbitration of international. Traditional conflict resolution mechanisms and institutions. Kenya access justice through the informal and alternative dispute resolution mechanisms. Advantages and disadvantages of dispute resolution processes in order to select the most appropriate process, it is important to understand and appreciate the advantages and disadvantages of the various dispute resolution processes.
Alternative dispute resolution techniques can strengthen dispute settlement systems and bridge the gap between formal legal systems and traditional modes of african justice. The constitution of kenya 2010 envisions a multifaceted, pluralistic judicial operative that recognizes the coexistence of alternative dispute resolution and alternative justice systems within and alongside the formal justice system, remarks hon. Traditional dispute resolution tdr mechanisms and other informal justice systems find their rightful place in the conventional judicial system and that the same are meaningfully and actively utilized in facilitating access to justice especially for the poor kenyans. In the outline of advantages and disadvantages of dispute resolution processes provided below, a simplified. Laurence, a history of alternative dispute resolution, adr bulletin. Dispute resolution process tries to resolve and check conflicts, which enables persons and group to maintain cooperation. There is no mandatory requirement for parties to commercial litigation to submit to adr proceedings. Access to justice and alternative dispute resolution mechanisms in kenya. The chartered institute of arbitrators ciarb is a leading professional membership organisation representing the interests of alternative dispute practitioners worldwide. The judiciary of kenya the independent custodian of justice. Pamella ager and james kituku deliver two articles on land matters one, an assessment of the national land commission and the other, an overview of new land regulations that govern the process of conversion of land. Adr and tdrms within the legal framework in kenya, will contribute towards economic, social.
Eligibility of disputes for alternative dispute resolution kenya 4. Every person has the right to have any dispute that can be resolved by the application of law. What are the different types of alternative dispute resolution adr. However, in terms of the civil procedure act, the courts may, either on the application of the parties or on its own motion, refer a commercial dispute to adr mechanisms. The judiciary of kenya will implement courtannexed mediation within. Alternative dispute resolution as a viable tool in land conflicts a kenyan perspective published popular alternative dispute resolution as a viable tool in land conflicts a kenyan perspective. Dispute resolution is an indispensable process for making social life peaceful. It traces the running thread through his work with the aim of demonstrating that conflict management and environmental matters are not linear subjects and should be treated as such as. Africa security brief alternative dispute resolution in africa. Studies by the governance, justice, law and order sector gjlos program, and the judiciary jointly with the world bank found that between 4 10% access justice through alternative dispute resolution.
The first category is formal dispute resolution, primarily involving court adjudication. Mediation may be voluntary, court ordered, or required as part of a contract or an external dispute resolution arrangement. Explain the advantages and disadvantages of alternative. Together with strengthening local mechanisms for conflict prevention, better and improved structures can be created in order to prevent conflict. The alternative dispute resolution bill, 2019 parliament of kenya.
884 1485 1478 1096 1218 141 423 770 1327 1480 1328 67 940 1527 144 851 255 1175 1466 17 1061 1364 1044 1300 225 629 958 799 277 1304 29 703 781 596 258 1570 33 1557 330 703 684 938 1416 933 1358 294 836