Reprieve for business as mediation cuts case settlement to two months

The Judiciary’s arbitration and mediation programme has slashed the time it takes to settle cases in Kenyan courts to about two months, a review shows, offering relief for businesses and individuals hard-hit by lengthy and costly litigation.

A total of 243 cases worth Sh3.8 billion were settled under the programme within 66 days on average over the three months to January this year.

“The reduction in the time of resolution of cases will go a long way in enhancing the ease of doing business in the country,” the Judiciary said.

An annual report for 2018 showed that close to half of the unresolved cases in Kenyan courts had dragged on for more than three years – prompting calls for faster resolution of disputes.

The Alternative Dispute Resolution (ADR) initiative was piloted in the Family and Commercial divisions and later rolled out in the Civil, Environment and Land Court.

It also exists in the Milimani Children’s Court and at the Chief Magistrate Court in Milimani.

The conventional way of resolving disputes through court — litigation — has over the years proved problematic to many Kenyans amid a shortage of judicial officers and increased case backlog.

Delays in the hearing and determination of cases not only delay justice to the aggrieved parties but also means higher spending on legal costs.

Lawyers normally charge fees based on, among other things, the number of court appearances on behalf of their clients.

In Kenya, the maximum desirable timeline that a case ought to have been finalised from the date of filing is one year.

Any case that exceeds one year before a court is considered a backlog.

An estimated 45 per cent of the 327,928 backlog cases as at June 2018 had been before the courts for more than three years, with the magistrate’s courts and the High Court registering the highest overall.

Statistics showed that demand for court-annexed mediation has increased since last year, as parties sought speedier resolution to their disputes.

For instance, litigants referred a total of 1,121 legal disputes valued at Sh21.8 billion to the ADR between September 2018 and January this year.

To boost the uptake of the programme, the Judiciary has accredited over 450 mediators across the country to handle mediation cases.

In May 2017, Chief Justice David Maraga gazetted Practice Directions to guide the rollout of Court Annexed Mediation to 10 counties, namely Mombasa, Uasin Gishu, Kisumu, Nakuru, Nyeri, Machakos, Garissa, Embu, Kakamega and Kisii.

Court procedures show that once cases are filed, they are screened by deputy registrars and referred to accredited mediators if deemed appropriate.

After screening, litigants are notified to appear before a mediator whose costs are borne by the Judiciary.

Unlike judges, mediators do not decide the cases but play the role of facilitating parties to try and arrive at solutions on their own.

In instances where parties agree, a mediator reduces the agreement into a written settlement agreement. The agreement is forwarded to the court for adoption as a court order and that brings the court case to a closure.

In the event of a disagreement, a mediator files a report with the court to that effect and the case resumes hearing through the normal court processes.