INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION ADR.

A. DEFINITION

Alternative Dispute Resolution (ADR) refers to:

• a set of practices and techniques aimed at permitting the resolution of legal

disputes outside the courts1.

• a process in which a neutral third party—a mediator or arbitrator—helps

parties who are embroiled in a dispute come to an agreement2.

• any mode of dispute resolution that does not utilize the court system, such

as arbitration, neutral assessment, conciliation, and mediation.

• an all-encompassing term that refers to multiple non-judicial methods of

handling conflict between parties. Examples of ADR are mediation,

arbitration, neutral evaluation, negotiation, and conciliation3.

• a set of practices and techniques aimed at permitting the resolution of legal

disputes outside the courts

Methods of ADR are different from one another, but share common points,

notably the feature that a third party is involved and a less formal and complex

framework than courts4.

A. Historical Development of ADR in Kenya

PRE-COLONIAL ERA

1 Preeti Kumari, “Alternative Dispute Resolution (ADR),” SSRN Scholarly Paper (Rochester, NY, June 14, 2020),
[Link]
2 Katie Shonk, “What Is Alternative Dispute Resolution?,” PON - Program on Negotiation at Harvard Law School,

August 22, 2023, [Link]

3 Marc Jonas Block, “THE BENEFITS OF ALTERNATE DISPUTE RESOLUTION FOR INTERNATIONAL COMMERCIAL AND

INTELLECTUAL PROPERTY DISPUTES” 44 (n.d.).

4 Nathalie Chappe, “Alternative Dispute Resolution,” in Encyclopedia of Law and Economics, ed. Jürgen Backhaus

(New York, NY: Springer, 2014), 1–5, [Link]

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Indigenous techniques

• African societies had well-outlined indigenous techniques of settling conflicts.

• These techniques bordered on restorative approaches through the use of

mediation and arbitration to reestablish the pre-conflict geniality between

the disputants.

• African culture affirmed methods that promoted its foundations on

brotherliness and harmony.

In Kenya, dispute resolution among Kenyan communities was traditionally initiated

and controlled.

It is noteworthy, from the onset that African customary law and jurisprudence did

not distinguish between criminal and civil disputes and thus conflicts of whatever

nature were solved using similar mechanisms.

KAMBA COMMUNITY

Among the Kamba people, when a dispute arose, the same would be forwarded to

the council of elders for resolution.

In the past conflicts were solved according to their severity of the matter.

a) In small disputes involving people of the same homestead “musyi” the dispute was normally
heard by the elder members of the family who would in act as mediators and encourage the
disputing parties to find their own methods of solving the issue.

b) In cases that involved people of the same clan “mbai” but of different homesteads the “nzama”
(clan elders) were called in to arbitrate on the issue. This was common in matters of boundary
disputes between neighbors. The “nzama ” would allow both parties to present their cases after
which they would give a verdict which as universally accepted by both parties. The guilty party
was sometimes instructed to pay a fine or compensate he aggrieved party.

c) Cases that could not be dealt with by the “nzama” were forwarded to the “atumia ma Ithembo”
(council of elders) and the normally comprised of inter-clan disputes. They acted as the
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 arbitrators and their decision was final. In some cases, a ritual had to be done in order to solve a
dispute. In an instance where a curse called “Kithitu” was placed on a guilty person a ritual
“Kuusya” (Restoration of peace) had to be done in order i to bar further repercussions from
being meted upon the guilty party. The guilty first had to accept their wrong and accept to offer
compensation. “Mundumu” (medicine man) is the one who conducted the cleansing ceremony
where the guilty would be taken to a river and “Muthea” (a type of medicine) smeared on their
forehead and limbs after which an animal was offered as a sacrifice

KIKUYU COMMUNITY

Among the Kikuyu, the venue for resolution of a dispute depended on the

magnitude of the dispute.

a) Small disputes within a homestead were resolved by the head of the house.

b) Other disputes were handled by the council of elders popularly referred to

as kiama. For instance, if a dispute was very serious, a meeting by the heads

of the families within the kinfolk would be convened by the head of the

house within which the dispute arose. This meeting would be referred to as

the mbari. The determination of the dispute by the mbari would be final and

not subject to appeals.

POST-COLONIAL

• With the advent of colonization, the British progressively dismantled existing

structures.

• The customary institutions were denied legal recognition and almost

rendered functionless.

• In some instances, there was partial recognition of customary practices such

as marital rites but the same was largely undermined in preference to formal

systems.

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 • It has been argued that had these practices been recognized, legitimized, and

elevated as national approaches to dispute resolution, with necessary

modifications, this would have placed ADR mechanisms on a different

platform in the dispute resolution matrix in post-colonial Kenya.

For many years ADR has been viewed suspiciously and only a few had the temerity

to go for it.

The question of whether Alternative Dispute Resolution (ADR) practice in Kenya

should be regulated as a specialized area of practice or profession requires the

proper historical perspective especially given that ADR was not an invention the

colonial masters.

Indeed, it is worth noting that the formal justice system in Kenya, as we know it

today, was never part of the indigenous communities in Kenya until the colonial

masters introduced the same as a tool of colonization.

Community-based conflicts were dealt with using the traditional methods of conflict

management and those who administered the same did so within the societal

accepted ideals and were guided and regulated by the norms and traditions of the

particular community.

Notably, there were mostly organized forums where community members

appeared for conflict management such as Njuri Ncheke among Meru and Council

of Elders among the Kikuyu, and each of these had an accepted code of conduct

and minimum qualifications for one to join as a member. As such, the members

were expected to abide by the set guidelines all the time.

However, with the advent of the colonial masters, most of the ADR and traditional

justice systems were relegated to an inferior position, with the main conflict

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management methods becoming the formal common law system, which went

ahead to be established as a profession requiring specialised training and

qualifications. It is the misconception of the African communal way of life, conflict

resolution institutions and prejudice against their traditional way of life that led to

the introduction of the western ideals of justice which were not based on political

negotiations and reconciliation. Under this new arrangement, although certain

minor disputes could be settled in a customary manner, the English Common Law

became the ultimate source of authority.

It is noteworthy that while there was no problem with some of these developments,

the practitioners of the alternative and traditional justice systems were rarely

recognized under the new system during colonialism and even after colonialism.

Even where recognized, the system was to be used only for reference when dealing

with a small section of disputes touching on a few issues such as community land,

family law, amongst others. The political and legal systems of the colonial masters

were superimposed upon the traditional and customary political and legal

processes of African people, and the African customs and practices were allowed to

continue ‘only if they were not repugnant to justice and morality’.

This is how a few of the ADR mechanisms such as arbitration and mediation gained

prominence even under the formal systems, as they were supported by mainly the

international business community as forums to address arising commercial

disputes. Thus, for example Kenya, in an attempt to be at par with its international

business partners, developed laws on arbitration, which have been revised with

time to reflect international best practices. There have also been a few

organisations training professionals on mainly the two mechanisms and developing

codes of conduct for those training or practicing under their umbrella. But it is the

recognition of ADR under the current Constitution of Kenya 2010 which has
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triggered increased need for more professionals to train and gain expertise in

various ADR mechanisms. This growing numbers of practitioners from different

professional backgrounds come with the challenge of the need for regulation of

this seemingly fast-growing area of practice

The formal recognition of the various ADR and TDR mechanisms in the Constitution

of Kenya and under various statutes has also led to increased application of these

mechanisms by courts and tribunals, amongst other informal forums. For instance,

the Judiciary has also since launched and rolled out the Court Annexed Mediation

Project to especially deal with commercial and family matters. As a result, a good

number of disputes that used to end up in court are now increasingly being

managed using these mechanisms. In any case, courts have a constitutional

obligation to promote their utilisation whether within the formal framework, that is,

court-annexed ADR, or as informal mechanisms as envisaged in the various

constitutional provisions.

Thus, in the last few years, ADR practice has emerged as an area of specialisation

with both lawyers and non-lawyers becoming recognized ADR practitioners. In fact,

Law Society of Kenya has even introduced the ADR Practitioner of the Year Award in

recognition of its members (Advocates) who are excelling in ADR Practice. At the

same time, seeking to cash in on the consequently increased demand for trained

practitioners, ADR centres have been set up to offer training and continuing

professional development courses for the trained. This is what makes it necessary

to grapple with the question as to whether or not ADR and TDR practice should

formally be regulated by an overall body or at least under a centralized policy

framework or be left within the ambit of private regulation by private bodies.

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There is no question that this debate is far from conclusion. However, it is

important to note that at the moment the law, as it is, does not specify whether

courts should deal with institutional-affiliated ADR practitioners only or even those

practicing independently, for instance, in ad hoc arbitrations. Unlike the legal

profession where lawyers or advocates wishing to practice law in Kenya must be

affiliated to a professional body, namely, the Law Society of Kenya, ADR practice

does not have such requirements. It is for this reason that the question on

regulation of ADR practitioners should be addressed, especially within the current

constitutional dispensation. There is no question that numerous issues in ADR

require regulatory guidance including how to refer disputes to ADR, how to choose

the applicable ADR process or method, obligation to participate in the ADR method,

the applicable procedure in ADR and formal enforceability of the ADR outcome.

These issues underscore the basic need to regulate ADR, which through self-

regulation or Governmental regulation or both5.

B. TYPES OF ADR MECHANISMS

1. Arbitration.

Arbitration is the “submission of a dispute to one or more impartial persons for a

final and binding decision” on a dispute. It is a simplified version of a trial involving

limited discovery and streamlined rules of evidence. The arbitration is heard and

decided by an arbitral panel. Arbitration hearings can last for a day to several weeks.

The panel then deliberates and issues a written decision, or arbitral award, which is

usually binding on the parties, but is not public record. Arbitration requires a certain

5Muigua Kariuki, “The Historical Perspective of the Need for Regulation of ADR in Kenya,” February 27, 2022,
[Link]
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level of consent between the parties, though said consent may long predate any

dispute.

2. Mediation

Mediation is a process whereby a neutral third party, called a mediator, intervenes

in a dispute to help the parties amicably and informally resolve a dispute. Mediators

are individuals trained in mediation and negotiations that attempt to work out a

settlement or agreement that both parties accept or reject. Mediation is usually non-

binding and relatively non-adversarial, offering parties a methodology to address

disagreements while continuing in an economically viable relationship, without the

cost of litigation.9

3. Conciliation

Conciliation is a process that attempts to resolve disputes such as labour disputes

by compromise or voluntary agreements.

Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based

process. The parties seek to reach an amicable dispute settlement with the

assistance of the conciliator, who acts as a neutral third party.

The main difference between conciliation and mediation proceedings is that, at

some point during the conciliation, the conciliator will be asked by the parties to

provide them with a non-binding settlement proposal. A mediator, by contrast, will

in most cases and as a matter of principle, refrain from making such a proposal.

Conciliation is a voluntary proceeding, where the parties involved are free to agree

and attempt to resolve their dispute by conciliation. The process is flexible, allowing

parties to define the time, structure, and content of the conciliation proceedings.

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These proceedings are rarely public. They are interest-based, as the conciliator will

when proposing a settlement, not only take into account the parties' legal positions,

but also their; commercial, financial, and/or personal interests.

Kinds of Conciliation

Voluntary Conciliation- In this method parties can voluntarily participate in the

process of conciliation for resolving their dispute.

Compulsory Conciliation- If parties do not want to take the opportunity of

voluntary conciliation, then they can go for compulsory conciliation. In this method,

if the parties do not want to meet the other party to resolve the dispute then the

process is said to be compulsory. This method is commonly used in labour cases.

4. Neutral Evaluation

Neutral Evaluation is a relatively non-adversarial process in which the parties

submit their position to a third-party neutral through a confidential evaluation

session. The neutral examines the evidence, listens to the parties’ positions, and

provides the parties with his or her evaluation of the case.

Evaluation is simpler and less costly than litigation or arbitration and is especially

useful when parties require the answer to a technical question quickly.

5. Negotiation

Negotiation is a less formal method, whereby parties meet in good faith to discuss

and address the dispute with the goal of reaching a mutually agreeable resolution.

Negotiation can take place with or without lawyers or neutrals.11 The lack of

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formality and structure works best with parties that are willing and able to work

together to address substantive issues.

6. Restorative Justice

Restorative Justice is primarily a procedure to address criminal actions and involves

creating a process focusing on the needs of all stakeholders, including the victim, the

offender, and the community. A mediated dialogue is created between offenders and

victims, which foster accountability, forgiveness, and social reintegration for both

parties. Restorative justice attempts to create long-term resolution for crime and

social issues.

Restorative justice refers to “an approach to justice that seeks to repair harm by

providing an opportunity for those harmed and those who take responsibility for

the harm to communicate about and address their needs in the aftermath of a

crime.”

Restorative Justice:

• Provides opportunities for victims, offenders, and communities affected by a

crime to communicate (directly or indirectly) about the causes,

circumstances, and impact of that crime, and to address their related needs.

• Is based on an understanding that crime is a violation of people and

relationships and is based on principles of respect, compassion and

inclusivity.

• Encourages meaningful engagement and accountability and provides an

opportunity for healing, reparation and reintegration.

• Uses processes, including conferences, dialogues and circles, and is guided

by skilled facilitators.

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 • Is a flexible process and can take different forms depending on the

community, program, case, participants, or circumstances. Footnote2

• Uses processes that may take place at all stages of the criminal justice

system and can be used with adults and youth.

• Is used in every province and territory and is supported by legislation and

federal, provincial, and territorial government programs and policies.

Restorative justice contributes to a criminal justice system that is accessible,

compassionate and fair and promotes the safety and well-being of citizens

A. SOURCES OF ADR MECHANISMS IN KENYA

CONSTITUTION.

In Kenya, ADR mechanisms are anchored in the law.

a) Article 159

Article 159 stipulates that in the exercise of judicial authority, courts and tribunals

are to promote alternative forms of dispute resolution including reconciliation,

mediation, arbitration, and traditional dispute resolution mechanisms6.

However with a caveat for the use of traditional dispute resolution mechanisms

where they are not repugnant to morality and justice as stipulated in section 3 of

the Judicature Act.

b) Article 48

6“Kenya Law: The Constitution of Kenya,” Article 159(2) (c), accessed September 10, 2023,
[Link]
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Article 48 places a constitutional burden on the state to ensure that access to

justice is available to all. The access includes ADR mechanisms. It stipulates that: -

The State shall ensure access to justice for all persons and, if any fee is required,

it shall be reasonable and shall not impede access to justice.

c) Article 189 (4)

Article 189 (4) stipulates: -

National legislation shall provide procedures for settling inter-governmental

disputes by alternative dispute resolution mechanisms, including negotiation,

mediation, and arbitration.

d) Article 67 (2) (f)

In conflicts involving land, the constitution donates power to the National Land

Commission to encourage the application of traditional dispute resolution

mechanisms. It stipulates: -

The functions of the National Land Commission are—(f) to encourage the

application of traditional dispute resolution mechanisms in land conflicts

STATUTES.

there are Acts of Parliament that provide procedures for the use of various ADR

mechanisms including:

a) The Arbitration Act

The Arbitration Act governs the application of arbitration in Kenya

b) Civil Procedure Act

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Section 59 of the Act makes provision for the use of mediation and arbitration in

the resolution of disputes

c) Employment Act

Section 47 of the Employment Act provides for the resolution of complaints of

summary dismissal or unfair termination. It is provided under subsection 2 that;

“A labour officer who is presented with a claim under this section shall, after

affording every opportunity to the employee and the employer to state their case,

recommend to the parties what in his opinion would be the best means of settling

the dispute in accordance with the provisions of section .”

d) The Labour Institutions Act

The Act encourages the use of alternative mechanisms of dispute resolution in the

form of conciliation.

Section 12 (9) 51 provides that;

“The Industrial Court may refuse to determine any dispute before it, other than an

appeal or review if the Industrial Court is not satisfied that an attempt has been made to

resolve the dispute through conciliation.” It can be seen that this Act encourages parties

to conciliate their differences.

e) The Labour Relations Act

This Act encourages the use of conciliation and arbitration in the resolution of

disputes

Section 58 of the Labour Relations Act 52 provides that;

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“(1) An employer, group of employers or employers' organization and a trade union may

conclude a collective agreement providing for-

(a) the conciliation of any category of trade disputes identified in the collective

agreement by an independent and impartial conciliator appointed by agreement

between the parties; and

(b) the arbitration of any category of trade disputes identified in the collective agreement

by an independent and impartial arbitrator appointed by the agreement between the

parties.

Section 67 of the Act provides for the conciliator’s powers to resolve a dispute. It

provides in subsection 2 that

for the purposes of resolving any trade dispute, the conciliator or conciliation

committee may –

a) Mediate between the parties

b) Conduct a fact-finding exercise; and

c) Make recommendations or proposals to the parties for settling the dispute. The

conciliator or conciliation committee shall have power to summon and question any

person to attend a conciliation.

INTERNATIONAL LAWS

a) The UN Charter

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Article 33 of the UN CHARTER which provides for conflict management

mechanisms7. It provides: -

1. The parties to any dispute, the continuance of which is likely to endanger the

maintenance of international peace and security, shall, first of all, seek a solution

by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,

resort to regional agencies or arrangements, or other peaceful means of their

own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle

their dispute by such means.

b) The Woolf Report

This inquiry was headed by Lord Justice Woolf; it started deliberations in 1994 with

an Interim Report being published in 1995 and the final report in 1996. The interim

report proposed among other things encouraging the use of ADR.

The final Woolf Report: Access to Justice published in 1996 extended the ideas of

the interim report and set out key objectives which were:

• Parties to be encouraged to explore alternatives to a court resolution of a

dispute.

• A single set of rules governing proceedings in the High Court and the County

Court.

• A shorter timetable for cases to reach court and for lengths of trials.

• More affordable litigation.

7United Nations, “United Nations Charter (Full Text),” United Nations (United Nations), Article 33, accessed
September 10, 2023, [Link]
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 c) Case law

• Mutinda vs. IEBC Exparte Patel [2013]Eklr

Justice Odunga said this about ADR :-

Courts and Tribunals cannot be said to promote ADR mechanisms when they readily

entertain disputes that can be resolved in other legal forums”………Courts and Tribunals

shall be guided by the principles of ADR as stipulated in Article 159 (2) of the

constitution.

Accordingly, I agree that where there is an alternative remedy and procedure available

for the resolution of the dispute that remedy ought to be pursued and procedure

adhered to”

• Njangi vs. Supkem [Industrial Court Case No.416 of 2011]

Justice [Link]

In this case one of the parties a religious body was wondering why the other party

had rushed to court yet there were provisions to use ADR.

• R (Cowl and Others) vs. Plymouth City Council [2002] Vol 1 WLR 803

The Court of Appeal held that judicial review proceedings about the closure of an

old people’s home should be allowed to go ahead if a significant part of the issues

could be resolved by [Link] Woolf giving judgment said

“The importance of this appeal is that it illustrates that even in disputes

between public authorities and members of the public for whom they are

responsible sufficient attention is paid to the paramount importance of

avoiding litigation whenever that is possible”.

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He further stated that if necessary, the court might have hold on its own initiative

an inter-parties hearing in which the parties could explain what steps they had

taken to resolve the dispute without involvement of the court. This placed the

lawyers on both sides under a heavy obligation to use ADR unless it really proved

impossible.

He said “Today sufficient should be known about ADR to make the failure to adopt

particularly when public money was involved indefensible”.

In industrial and labour matters one would be slapped with costs if they don’t avail

themselves to ADR.

• Dunnett vs. Railtrack Plc (In Administration) [2002] 2 ALL ER 850

In this case, the court applied cost penalties for a failure to use ADR.

What had happened was that the claimant had been granted leave to appeal, but in

giving leave the trial judge advised both parties that they should consider the use of

ADR.

The defendant declined to mediate.

On the hearing of the appeal, the claimant's appeal was dismissed but the

defendant was not awarded costs because of refusal to try ADR.

Brooke J said

“It is hoped that publicity will draw the attention of lawyers to their duties to further the

overriding objective….and to the responsibility that, if they turn down out of hand the

chance of ADR when suggested by the court as happened on this occasion, they may face

uncomfortable cost consequences”

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This case was the first time that a successful party was refused costs because they

declined to mediate

Courts can also order stay of proceedings in contractual cases where mandatory

ADR terms have been provided

• Cable & Wireless PLC vs. IBM United Kingdom Ltd [2002] EWHC 2059

(Comm)

The judge held that the contractual term providing for mandatory ADR in the event

of a dispute was capable of being enforced by a stay of proceeding. However, this

could only happen if there was sufficient certainty as to what type of ADR

procedure should be used. The court stressed the overriding objective of the Civil

Procedure Rules and also the encouragement of ADR in case management.

This very hard line use of ADR was considered as going beyond “encouraging ADR”.

Indeed Khawar Qureshi in an article “Doors of the High Courts are opened by fewer

and fewer” The Times 27th April 2004 pointed out that it could violate Article 6 of the

European Convention on Human Rights-the right to fair trial.

The matter was considered further by the courts in the conjoined appeals of

Halsey vs Milton Keynes General NHS Trust and Steel vs Joy and Another

Halsey vs Milton Keynes General NHS Trust and Steel vs Joy and Another

[2004] EWCA Civ 576

In this case the Law Society was joined as an interested party and put forward

arguments on the point of when ADR should be used. The Court of Appeal stressed

the distinction between encouraging mediation strongly and ordering it and said

that:”…to oblige truly unwilling parties to refer their disputes to mediation would be

to impose an unacceptable obstruction on their right to access to the courts”.

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Lord Justice Lawton set out the relevant factors to be considered in the deciding

whether to impose a costs penalty for refusal to try [Link] started by pointing out

that an order to deprive a successful party of some or all of his costs because that

party had refused to agree to ADR was unsuccessful party to show why there

should be a departure from the general rule. Relevant factors to be considered in

such cases were:

a) The Nature of the Dispute: Some cases were unsuitable for ADR ;these

included cases where there was a point of law or interpretation in issue,

claims involving fraud and cases where there was a claim for an injunction.

b) The Merits of the Case: Where a party reasonably believes that they have a

watertight case then they may be justified in refusing to use ADR.

c) Previous Attempts to Settle by Other Methods: Although parties should

realize that mediation often succeeded where other attempts to settle have

failed.

d) The Cost of Mediation: This is particularly important where the amount

being claimed is relatively small.

e) Delay: If mediation was suggested late in the case and would have the

effect of delaying the trial then that was a good reason for refusing ADR. 6.

Prospect of Success: Whether mediation had a reasonable prospect of

success.

FEATURES OF ADR PROCESSES

All ADR processes share several features which are illustrated below;

• they are typically less formal than litigation,

• they provide a rapid, relatively inexpensive alternative to litigation,

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 • they usually encourage negotiated settlements rather than adjudicated

decisions,

• they are often highly confidential in relation to litigation,

• they are flexible enough to be adapted on a case-by-case basis, because they

are not governed by legal rules, and

• they are typically provided by private practitioners for a fee, rather than by

judges and lawyers

ADVANTAGES AND DISADVANTAGES OF ADR

ADR methods involve considerable benefits as well as significant drawbacks. Due to

this reason, it is highly recommended for disputants to assess the current situation

and position of their case as to whether it fits any of the ADR methods or not.

Advantages

Allow Access to Justice.

ADR methods can be more accessible to those who have limited economical

sources.

Efficiency on Time and Cost.

Even though, there are still numerous discussions with regard to the efficiency of

ADR methods by means of time and cost. It might be possible to mention that, ADR

methods are more or less efficient than that of adjudicative dispute resolution

methods.

Flexible and Creative.

The parties can choose the ADR process that is best for them. For example, in

mediation, the parties may decide how to resolve their dispute. This may include

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remedies not available in litigation (e.g. a change in the policy or practice of a

business)

Confidential.

Unlike the court system where everything is on the public record, ADR can remain

confidential. This can be particularly useful, for example, for disputes over

intellectual property which may demand confidentiality

Win-Win Nature.

ADR methods are non-adversarial. To establish long-lasting business relationships,

it is quite important to resolve dispute in amicable way and produce win-win

outcomes.

Disadvantages

Suitability.

ADR methods sometimes do not fit well for the disputes at stake. For example, if a

party wishes to have a legal precedent or it is a public interest case, judicial

determination may be more appropriate.

Lack of Court Protection.

As the name implies, the ADR methods do not provide protections of which should

be granted in litigation.

Lack of Compulsion.

Parties are entitled to walk away from negotiations whenever they deem necessary.

This possibility brings significant questions up to the mind with regard to the

efficiency of ADR methods.

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 Disclosure of Information. There is generally less opportunity to find out about

the other side’s case with ADR than with litigation. ADR may not be effective if it

takes place before the parties have sufficient information about the strengths and

weaknesses of their respective cases.

NEED FOR ALTERNATIVE DISPUTE RESOLUTION (ADR)

Reasons for finding alternatives

a) Weight of pendency

The need for finding alternatives arises due to the working of the present system of

administration of justice. Recently Justice Koome revealed that there are over

678,000 pending cases in the Country. The pending cases naturally clogs the justice

system.

Matters are made worse by the lack of enough judicial staff. The available judicial

staff caanot cope with the backlog.

b) Delay in dispensation of justice at different stages of Justice.

The procedures stipulated for instance, in the Civil Procedure are tedious and

consume lots of time. Similarly, procedures under the law of Succession, and

Marriage Act 2014 are instructive.

c) Adjournments

Unnecessary adjournments also extend the life of litigation. The process of

adjournments, on frivolous grounds, is one of the major reasons for the increase in

delay. While there is a very good understanding between the courts and advocates,

the same does not exist between the clients and the courts. In the process, the

interests of litigants suffer.

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 d) Concentration of work

This is another pertinent factor rarely considered. Whereas litigants have the right

to choose advocates of their choice, there tends to be a concentration of work

among a few law firms and senior lawyers who are influential

e) Other factors

The long and unnecessary holidays by the High Court, Court of Appeal, and

Supreme Court is another factor that limits and exacerbates delays in the

administration of justice. The other factor is the uncoordinated court diaries,

haphazardly planned conferences, seminars, training, and leave for judicial staff

CHARACTERISTICS OF COURT SYSTEM

1. It is costly

2. Laced with formal and procedural technicalities

3. It is technical in nature hence the need of litigants to be presented.

4. It is a multi-layer system ( Trial or Hearing, Appeal and counter-appeals)

5. It is a public forum

6. It is adversarial in nature

7. It has inherent delays

8. it is a win-or-lose situation no win-win

9. It has clear enforcement mechanisms

10. Court system is alien to Africans- (Customary was simple, speedy, fair, and

relevant to the needs of the community).The African system did not revolve

around battle but rather aimed at resolving conflicts.

ADVANTAGES OF COURT SYSTEM

INTRODUCTION TO ADR GORDON OGOLA

1. Precedent: The doctrine of judicial precedent will be applied by the judge, which

leads to a reasoned decision.

2. Qualification: A legally qualified judge will decide the case.

3. Hierachy: There is an appeal system if a party is unhappy with the decision of

the trial judge.

4. Legal Aid: is available for those on a low income.

5. Enforceability: It is easier to enforce a court decree.

6. Public: Leads to vindication

7. New Rights: It leads to the development and recognition of new rights.

8. Deterrence: It might lead to deterrence due to its public nature

DISADVANTAGES OF THE COURT SYSTEM

1. The civil courts are expensive. Many cases cost more than is being claimed.

2. There are delays in waiting for the trial, adjournments to file appeals, etc the

delay can also be due to backlog of cases.

3. The procedures are complex, which requires the litigants to be represented

4. The courts are open to the public and press, which could lead to adverse

publicity. (Absence of privacy)

5. The judge will not have technical expertise in construction, pharmaceutical, or

oil and gas

6. The court service chooses the trial date.

7. Courts can be intimidating and make the litigants fumble even where they are

right.

8. Courts are sometimes inaccessible e.g. in the Kenyan context there are places

where there is only one court serving a vast area or population.

9. Courts can be influenced or corruptible

10. In courts one get technical justice instead of substantive justice

INTRODUCTION TO ADR GORDON OGOLA