MOI UNIVERSITY

SCHOOL OF LAW

RESEARCH PAPER: FLB 400

CHAPTER TWO.

THE CONSTITUTIONAL COMPASS: LEGAL FRAMEWORK AND GUIDING

PRINCIPLES FOR ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL
PROCEEDINGS IN KENYA.

By:

JOSEPH ADUKE ONDITI

LLB/5550/22

A RESEARCH PROPOSAL SUBMITTED IN PARTIAL FULFILMENT FOR THE

REQUIREMENTS OF THE AWARD OF BACHELOR OF LAWS (LLB) DEGREE OF
MOI UNIVERSITY

SUPERVISED BY:

DR. JOHN JOSEPH WAMWARA, LLD (Emory University, U.S.A)

 CHAPTER TWO.

THE CONSTITUTIONAL COMPASS: LEGAL FRAMEWORK AND GUIDING

PRINCIPLES FOR ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL
PROCEEDINGS IN KENYA.

"There is no power for change greater than a community discovering what it cares about."
– Margaret J. Wheatley.

INTRODUCTION

Alternative Dispute resolution entails all avenues used to resolve conflicts, outside the court
processes including; mediation, conciliation, facilitation, arbitration and traditional dispute
resolution mechanisms.1The concept of alternative dispute resolution does not connote that these
institutions and mechanisms are second- best to litigation. 2 Alternative dispute mechanisms
draws a lot of positives as relative to litigation process, courts are but one of the means of
resolving conflicts.3It rests upon every litigant to choose which method is best to resolve their
dispute and which best serves their interests.4

In every society, conflict is inevitable.5Conflict is within us and in our surrounding, it is intrinsic

and an inevitable aspect of social change. 6For healthy functioning of society, harmony and
disharmony are required. Conflict is a fundamental social process that; breeds solidarity, defines
issues, initiates social change, reestablishes intimate relationships, speeds-up cultural change and
results and redefines values.7 The command of Article 159 (2) (c) recognizes alternative dispute
resolution mechanisms as a principle for courts and judicial officers in discharge of their
1
Kariuki Muigua PhD, ALTERNATIVE DISPUTE RESOLUTION AND ARTICLE 159 OF THE
CONSTITUTION. UON Digital Repository.
[Link] .page 1 ACCESSED 23 JUNE 2025.
2
Ibid, page 2.
3
Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya
Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) (6 December 2019) (Judgment) (with dissent - DK
Maraga, CJ & P) [Link]
para 104.
4
Ibid.
5
Rashmi Ranjan Jena PhD, CONFLICT-IS IT INEVITABLE FOR PEACE? SSRG International Journal
of Humanities and Social Science (SSRG-IJHSS) Vol 4. Issue 2.
[Link] page 2,
ACCESSED 23 JUNE 2025.
6
Ibid.
7
Ibid. pages 7 & 8.
authority.8 While alternative dispute resolution mechanisms cover numerous fields and
categories of conflicts, the case for criminal cases is bit different. This is grounded on the
realities that criminal law is guided by specific sets of procedures unique to civil claims, land
disputes and labor disputes. The parties in criminal proceedings are the State, represented by the
director of public prosecution9 and the accused party. Importantly in criminal proceedings there
is also a complainant who reports the grievances to the police and who communicates to the
court through the prosecution only.10

The place of alternative dispute resolution in criminal cases, aside from article 159 (2) (c) is
pinpointed under section 176 of the Criminal Procedure Code. The law guides that courts may
promote reconciliation and encourage and facilitate the settlement in an amicable way of
proceedings for common assault of a personal or private nature not amounting to a felony. 11
These settlements may be on the terms of payment of compensation or other terms approved by
the court and as a consequence the court can issue orders for stay or termination of proceedings. 12
Court have taken bold steps and embraced judicial activism by overstepping on their
jurisdictional scope and allowing matters of felonies to be settled out of court. 13 Critically,
reconciliation efforts must be initiated before the court enters a judgment of the same case.

To evaluate the suitability of alternative dispute resolution in criminal cases, there is therefore
need to canvass through the legislations that provide for ADR in various ambits of the criminal
justice system. Thus this chapter will focus on the domestic laws as well as international
instruments that guide on the use of ADR in criminal justice system. This chapter will discern
the relationship and role of all parties in criminal proceedings and offer a record of judicial
interpretation and direction as to their conducts.

8
Constitution of Kenya 2010. Art 159 (2) (c).
9
Office of the Director of Public Prosecutions Act, [Link] 6B. S 5 (1) (b) (i).
10
Ibid, S 23 (d).
11
Criminal Procedure Code, 1930. CAP 75. S, 176.
12
Ibid.
13
Office of the Attorney General and Department of Justice, SESSIONAL PAPER NO.4 OF 2024 ON
THE NATIONAL ALTERNATIVE DISPUTE RESOLUTION POLICY. [Link]
content/uploads/2024/08/[Link] pages 11 & 12. ACCESSED 23 JUNE 2025.
CONCEPTUALIZING ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL
JUSTICE SYSTEM.

To the traditional legal understanding, Alternative Dispute Resolution (ADR) is a set of

mechanisms applied in management of disputes without invoking litigation. 14In essence ADR is
centered on resolving disputes. Thus there is need to place to distinguish between disputes,
disagreements and conflicts, so us to contextualize the place of criminal offences. Timothy D.
Keaton, adopts that a dispute is a short term disagreement that can result in disputants getting a
resolution.15 A dispute involves issues that are negotiable. 16 The Permanent Court of
International Justice (PICJ) in The Mavrommatis Palestine Concessions further elaborated on a
dispute.17 A dispute is a disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons.18

Peter Fenn et al, equally hold that conflict and dispute are distinct notions. 19 Conflict is
widespread and pervasive, it exists where there is an incompatibility of interests. 20 Conflicts can
be managed to prevent it from having many disputes. 21Conflicts are long term- deeply rooted
issues which ideally are non-negotiable as they are set within the mind. 22 While disputes can be
settled through negotiations, reason and communication do not always resolve conflicts but
narrowly find resolutions of many disputes within the conflict.

14
Kariuki Muigua PHD, SETTLING DISPUTES THROUGH ARBITRATION IN KENYA, UoN Digital
Repository [Link] ACCESED 30 JUNE page 1.
15
Timothy D. Keator, CONFLICT V DISPUTE? University of Penshawar 2011
[Link] ACCESED 30 JUNE pages 1 & 2.
16
Ibid.
17
Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30)
Publications of the Permanent Court of International Justice Series A � No. 2 1924.
[Link] ACCESED 30 JUNE.
18
Ibid, para 19.
19
Peter Fenn, David Lowe et al, CONFLICT AND DISPUTE IN CONSTRUCTION, Construction
Management and Economics, Research Gate Publications (1997)
[Link] ACCESED
30 JUNE. Page 3.
20
Ibid, page 5 & 6.
21
Ibid.
22
Supra n’ 15.
Under the penal code, an offence is construed as an act, attempt or omission punishable by
law.23A crime is an act or omission which the judiciary or legislature have laid down should
warrant the application of criminal procedure.24 Crimes are actions which go often beyond mere
interference with private rights and are said to have a harmful effect on the public. 25 The Kenyan
High Court in Nedermar Technology Bv Limited V Kenya Anti-Corruption Commission
explained the purpose of having criminal law.26 The purpose of criminal law is to permit
everyone to go about their everyday life without fear of harm to person or property. 27 Criminal
cases requires the court to consider a triangulation of interests being the account of the accused,
the victim and their family and the public.28

As such, offences are not conflicts or disputes which ordinarily are the preserve of litigation and
alternative disputes resolution mechanisms. As distinguished by Blackstone, crimes are public
wrongs, which are to be punished by the state. 29 Ambrose K. Lee further explains that by being
public wrongs, it is insufficient to construe this to mean crimes are actions that involve the public
because also tort laws covers the same. 30 The proper distinction is that criminal law responds to
public wrongs by way of punishment while tort law by way of compensation.

Essentially offences are statutory prescribed actions as punishable through a criminal procedure,
however in regard of observance of the interests of all parties these offences can find solutions
through mechanisms outside litigation. While the foregoing is a generalization, being that , there
are imposed bars on certain offences the legislation of alternative dispute resolution in various
statutes. This creates an avenue for out of court settlement in criminal proceedings even though
offences do not fit in the traditional understanding of disputes, but are instead public wrongs.
23
Penal Code 1930 CAP. 63, Section 2.
24
PhD Roger Geary, UNDERSTANDING CRIMINAL LAW, © Cavendish Publishing 2002,
[Link] ACCESED 30 JUNE. page 2
25
Ibid. page 2.
26
Nedermar Technology Bv Limited V Kenya Anti-Corruption Commission & Another
[2008] KEHC 3920 (KLR) [Link]
30. ACCESED 30 JUNE
27
Ibid.
28
Ibid.
29
William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Lonang Institute Book 4
(Oxford: Clarendon Press, 1765-1769), [Link]
[Link] page 5&6. ACCESED 30 JUNE
30
Ambrose Y. K. Lee ,PUBLIC WRONGS AND THE CRIMINAL LAW , ORA- Oxford University
Research Archive, 2013 [Link]
files/mbd8649d04424630f402a3100cdb6f327 page 14 & 15. ACCESED 30 JUNE.
CHARACTERISTICS AND STAKEHOLDERS IN CRIMINAL ALTERNATIVE
DISPUTE RESOLUTION.

Within the evolving landscape of Kenya's Justice System, Alternative Dispute Resolution (ADR)
mechanisms are increasingly recognized as vital tools for achieving more holistic and sustainable
justice outcomes.31 This section critically examines the defining characteristics that distinguish
criminal ADR from traditional adversarial processes and identifies the diverse stakeholders
whose active participation is crucial for its effective implementation, thereby laying the
groundwork for understanding its unique nature and potential in addressing criminal matters.

ADR, works to enforce human rights, which have been hindered by societal conditions such as
power asymmetry, case backlog and familiarity with legal process. 32 Ideally, without most ADR
mechanisms most rights will remain to be abstract, it moves to the realization of numerous
constitutional rights as access to justice , fair administrative action, rights of accused persons and
right to fair trial enshrined in our bill of rights. 33One of the most profound characteristics of
criminal ADR is its shift in focus from purely retributive justice to a reparative and restorative
paradigm.

Traditional criminal justice primarily concerns itself with determining guilt and imposing
punishment. The Supreme Court in Republic v Joshua Gichuki, emphasized adherence to the
doctrine of stare decisis that; “- It is imperative for all courts bound by decisions to rigorously
uphold their authority. Without the legal system risks ambiguity, eroding public trust, and
causing disorder in the administration of justice.”34 Criminal ADR, is a party interest centered
approach which does not lean to the guidelines of stare decisis but instead on the uniqueness of
the case and party’s needs.35

31
RESEARCH REPORT ON AWARENESS, PERCEPTION AND UPTAKE OF ALTERNATIVE
DISPUTE RESOLUTION IN KENYA, Nairobi Centre for International Arbitration (NCIA). 2021.
[Link] Accessed 24 July 2025
Page 16 & 17.
32
Ibid.
33
Constitution of Kenya 2010. Art, 47, 48, 50, 51 & Chapter 4.
34
Republic v Joshua Gichuki Mwangi and 4 others. [2024] Petition no. E018 of 2023. Para 53
35
REPORT ON ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONCILIATION.
Law Reform Commission (LRC 98-2010) 2010.
[Link] . Accessed 24 July 2025, Page 22-24.
This is particularly evident through approaches like restorative justice, which prioritizes
repairing the harm caused by the crime. It seeks to address the needs of the victim, hold the
offender accountable for their actions, and reintegrate both into the community. 36 This involves
understanding the impact of the crime beyond legal definitions, fostering dialogue, and seeking
solutions that heal relationships and prevent future harm.

Consent and the principle of voluntary participation are essential features in ADR. These are
paramount for both the victim and the offender. 37 In any dispute resolution mechanism, self-
determination involves voluntary, uncoerced decisions where each party makes free and
informed choices about the process and outcome. 38This voluntariness empowers individuals to
take ownership of the dispute resolution process. The magnitude of misinformation "shatters any
remaining illusions that parties are giving meaningful informed consent.39

The Kenyan High Court in Republic v Faith Wangoi 2015, fittingly captured the place of
consent in criminal ADR. The court guided that the court is a neutral entity that well embraces
Alternative Dispute Resolution only where parties are in agreement to it. 40The essence of
criminal ADR hinges on the parties' free and informed consent to both the process and its
eventual outcome evident through affixation of signatures to agreement and confirmation of
agreement under oath before the court.

Criminal ADR also operates along a spectrum of formality. Moving with it definition under
section 2 or the Civil Procedure Act, mediation as part of ADR is expressed as a means an
informal and non-adversarial process where an impartial mediator encourages and facilitates the
resolution of a dispute between two or more parties without settlement in judicial proceedings. 41
Despite this codification ADR mechanisms are guided by specific laws, for instance in mediation

36
Ibid.
37
Prof Elayne E. Greenberge. WHEN “YES” MAY ACTUALLY MEAN “NO”: RETHINKING
INFORMED CONSENT TO ADR PROCESSES. St. John’s Law Scholarship Repository, Faculty
Publications .Vol, 8. NO. 1. 2015 [Link]
article=1542&context=faculty_publications . Accessed 24 July 2025. Page 2 & 3.
38
Ibid.
39
Ibid.
40
Republic v Faith Wangoi, Criminal Misc., NO. 1 of 2015, High Court at Kajiado,
[Link] para 15 & 45.
41
Civil Procedure Act 1924. CAP 21. Section 2.
it is the Court Annexed Mediation Rules 42, for Arbitration and court annexed arbitration being
the Arbitration rules.43 Some mechanisms, like community-based traditional dispute resolution or
informal victim-offender dialogues, are highly informal, relying on cultural norms and relational
dynamics. These are however checked by the courts in their supervisory jurisdiction enshrined
under Article 165 (6) of the Constitution. 44 is Others, such as court-annexed diversion programs
or structured plea bargaining negotiations, are more formalized, adhering to specific rules,
guidelines, and judicial oversight.

Regardless of the degree of formality, the aim is typically to reach consensual outcomes rather
than having a decision imposed by a judge or arbitrator. 45 Agreements settled out of court receive
legal weight upon adoption by the court, this leads to legal remedies including orders contempt
upon noncompliance. This emphasis on mutual agreement allows for flexible and tailored
solutions that can address the specific nuances of a case, often going beyond what a court can
order.46

Furthermore, criminal ADR is inherently future-oriented. While acknowledging the past harm, it
looks forward to the offender's rehabilitation, their reintegration into society, and the prevention
of re-offending. Being anchored upon openness and good faith, ADR is more geared on
establishing truth through confessions as is the instance in plea bargaining. 47 Finally,
confidentiality is a cornerstone of many ADR processes, encouraging open and honest
communication. Confidentiality subsists through the fiduciary relationship and can be limited by
law.48 Among such grounds for limitation is when; mediator is compelled to make a disclosure

42
The Civil Procedure (Court-Annexed Mediation) Rules, Legal Notice 145 OF 2022.
43
Arbitration Act, The Arbitration Rules. Legal Notice 58 OF 1997.
44
Constitution of Kenya 2010, Art 165 (6).
45
Dr. Kariuki Muigua PHD, COURT ANNEXED ADR IN THE KENYAN CONTEXT. 2018.
[Link] Accessed 24 July 2025.
46
Ibid.
47
Office of the Attorney General and Department of Justice, SESSIONAL PAPER NO.4 OF 2024 ON
THE NATIONAL ALTERNATIVE DISPUTE RESOLUTION POLICY. [Link]
content/uploads/2024/08/[Link] . Accessed 24 July 2025.
Pages 11 & 12.
48
CODE OF CONDUCT FOR MEDIATORS 2021. Nairobi Centre for International Arbitration (NCIA).
2021. [Link]
[Link] Page 9 & 10.
by law, or by a court of law, or the specific information comes into the public domain (otherwise
than as a result of a disclosure by the mediator). 49

Further exempted when the parties release the mediator from the confidentiality restriction, or
necessary to defend the mediator from any proceedings or charges for which (s) he risks
incurring any liability.50 Consent by the parties or by source of information during the resolution
process can also defeat the rule on confidentiality. 51However, in criminal matters, this principle
often has crucial limitations, particularly when public safety is at risk, or when the disclosure of
information is legally mandated, such as in cases involving ongoing criminal activity. Further the
Penal Code places it as misdemeanor to intentionally tamper with or destroy potential evidence
(like documents or objects).52 With knowledge that they might be used in a court case, if the aim
is to prevent it from being presented as evidence.53

STAKEHOLDERS IN CRIMINAL ALTERNATIVE DISPUTE RESOLUTION.

The success of criminal ADR hinges on the active and meaningful involvement of various key
stakeholders. In Criminal Law, the state and the accused person are considered be the main
parties in criminal trial.54 Despite it being that it is individuals who are wronged, it is the
obligation of the state to initiate and conduct the criminal proceedings on behalf of the public. 55

Criminal Law's Asymmetry.

These parties do not have the same privilege and obligations in law. James Edwards, discusses a
concept he terms Criminal Law's Asymmetry, which he refers to the unequal distribution of
powers and permissions related to criminal law. 56 In essence, the author describes criminal law's

49
Ibid.
50
Ibid.
51
Mediation Rules, 2015. Rule 15 (3).
52
Penal Code CAP 63, Section 116.
53
Ibid.
54
Patrick Kiage. ESSENTIALS OF CRIMINAL PROCEDURE IN KENYA. Nairobi, Kenya: LawAfrica
Pub. 2010. [Link]
[Link] . Accessed 24 July 2025 Page 2 & 3.
55
Ibid.
56
James Edwards, CRIMINAL LAW’S ASYMMETRY. Oxford University Research Archive-ORA.
2017. [Link]
m23c5f6eea8628d7d301313900a084535 Accessed 24 July 2025 Page 1 -3.
asymmetry as the unique and extensive powers and permissions granted to state officials and
their delegates, which are withheld from private citizens. 57 Actions such as searches, arrests,
detains, compels trial attendance can only be procured by the State and not private persons-
accused, from whom such actions would be crimes.58

In moving to make a justification of having asymmetry, he points out two ideas. This is first the
impossibility of having private persons wield such powers as criminal law responds to a moral
problem that only "essentially public goods" can solve, and these goods cannot be delivered by
private persons.59 He further presents that it is more efficient to have this asymmetry, as it results
in the delivery of more non-essentially public goods at a lower cost. 60 Further makes the case in a
system with asymmetry it leads to better outcomes in terms of preventing crime, identifying
wrongdoers, and ensuring just responses.61While avoiding numerous problems that would arise if
private persons had the same powers.62

These justifications for asymmetry align with the burden and standard of proof in criminal
proceedings. The Kenyan Evidence Act guides that the burden of proof rests on the party
alleging the existence of a fact and seeks judgment of the court on the same. 63 In criminal
proceedings the common law position is that the prosecution bears the burden of proof and must
discharge this burden beyond reasonable doubt.64 The Kenyan High Court in State v Kevin
Owuor Abith alias Opudo (2021), accurately captured this position as it moved; “-that the
burden of proof lies on the Prosecution throughout the trial to prove their case against the
accused person. That burden does not shift to the accused person.”65The justification as to why
the burden does not shift owes to the constitutionally guaranteed rights of an accused person

57
Ibid.
58
Ibid.
59
James Edwards, CRIMINAL LAW’S ASYMMETRY. Oxford University Research Archive-ORA.
2017. [Link]
m23c5f6eea8628d7d301313900a084535 Accessed 24 July 2025 Page 15.
60
Ibid, Page 16 & 17.
61
Ibid.
62
Ibid.
63
Evidence Act, CAP 80, Laws of Kenya, Section 107(1).
64
Woolmington vs. DPP 1935 A C 462
65
State v Kevin Owuor Abith alias Opudo (2021) eKLR Criminal Case No. E002 of 2021. High Court at
Siaya. Para 5. [Link]
including the right to remain silent, the right to adduce and challenge evidence and the right not
to give any incriminating evidence. 66

Complainants: The State and Victim.

Criminal proceedings are instituted in the name of the state as the complainant, thus in law every
crime is against the state.67 As such the state takes the responsibility to seek redress on behalf of
the victim by punishing the offender.68 While it is important to decipher the relationship between
the state and victim, the underlying rule is the Alternative Dispute Resolution (ADR) can only be
invoked before the court enters a judgment. The apex court in Geoffrey M. Asanyo & 3 others v
The Attorney General 2019 expressed itself on the functus officio doctrine as among the
mechanisms through which the law expresses the principle of finality. The court guided ; “- the
functus officio doctrine dictates that a person who is vested with adjudicative or decision-
making powers may as a general rule exercise those powers only once in relation to the same
matter.” 69With the foregoing, Criminal ADR mechanisms can be initiated by any party at any
point before the court pens its determination.

The Victims

The Criminal Procedure Code is not express on the definition of a complainant. The International
Criminal Court (ICC) moves to define victims as persons who have suffered harm as a result of
the commission of any crime within the jurisdiction of ICC. 70 Domestic legal interpretation
defines a victim as a nominal complainant. The High Court in Juma Faraji Serengi v Republic
2007, elaborated that; “- the real complainant in all criminal cases including felonies is the
State, the victims of such crimes are nominal complainants.71”
66
Ibid, also Constitution of Kenya 2010. Art 49.
67
Ph.D. P.L.O Lumumba. A HANDBOOK ON CRIMINAL PROCEDURE IN KENYA. Kenya Nursing
Journal, Vol. 33 No. 1. 2006. 2nd edition [Link] Accessed
24 July 2025 Page 1 & 2.
68
Ibid.
69
Geoffrey M. Asanyo & 3 others v The Attorney General 2019, petition no. 7 of 2019. Supreme Court of
Kenya [Link]
[Link]?id=4426 Para 36 &37.
70
VICTIMS BEFORE THE COURT. International Criminal Court ICC-PIDS-FS-02-001/13-Eng
[Link] . Accessed 24 July 2025.
71
Juma Faraji Serengi alias (Juma Hamisi) v Republic. Misc Criminal Application 42 0f 2006 [2007]
eKLR .High Court at Mombasa. [Link] .
The input and participation of Victims is integral to productivity of any alternative dispute
resolution mechanisms as it is crucial were it for the case to be adjudicated in [Link]
among these, victims, who are central to restorative processes. Their participation empowers
them to voice their experiences, seek answers, receive apologies, and negotiate for reparation or
restitution. Their healing and sense of justice are paramount. The victims give accounts from
their perspective and this is useful in establishing truth and a middle ground. Fittingly
highlighted by the Court of Appeal in Roy Richard Elirema & Another v Republic 2002, in the
context of criminal proceedings and appearance in court; “- the complainant” is interpreted to
mean the Republic in whose name all criminal prosecutions are brought, and not the victim of
crime who is merely the chief witness on behalf of Republic .”72

The limitation of Victim Participation in Criminal Proceedings is that the victim/the complainant
does not have standing to address the court. Instead they have to communicate through their
advocate- the prosecutor or an advocate holding brief for the prosecutor. 73 Criminal ADR
however bridges this gap by placing parties at neutral platform and with equal voice and standing
to front their interests openly and in a comfortable language of choice.

The State.

As highlighted in the case of Musa Faraji [2007] and Roy Elirema v Repbulic [2003], the state is
the primary complainant in Criminal Proceedings. The state is represented by the Director of
Public Prosecutions (DPP), an independent and constitutionally protected office. The DPP has
the powers to institute and undertake criminal proceedings before any court except the court
martial.74Further has the mandate to take over and continue any criminal proceedings
commenced in any court aside from the court martial.75

By dint of Article 157(6) of the Constitution, embodies the State's prosecutorial authority. The
DPP is vested with broad powers to discontinue proceedings at any point before the judgment is
72
Roy Richard Elirema & Another v Republic [2003] eKLR, Criminal Appeal 67 of 2002. Court of
Appeal at Mombasa. [Link] .
73
Patrick Kiage. ESSENTIALS OF CRIMINAL PROCEDURE IN KENYA. Nairobi, Kenya: LawAfrica
Pub. 2010. [Link]
[Link] . Accessed 24 July 2025 Page 5.
74
Office of the Director of Public Prosecutions Act. CAP 6B Laws of Kenya. Section 5 (1) (b) (i).
75
Ibid, Section 5 (1) (b) (ii).
entered.76 Crucially, the exercise of these powers should have due consideration to public
interest, the interest of administration of justice and the need to prevent and avoid abuse of court
process.77Further critical to criminal ADR, is the discontinuation of proceedings at any stage
before judgment is delivered but the discontinuation must be with permission from the court. 78
This power to discontinue, particularly if exercised after the close of the prosecution's case,
results in the acquittal of the defendant, as stipulated by Article 157(7) of the new Constitution.
This gives out of court dispute resolution window of formality due to adoption by the court.

The Accused/Offender.

An accused is a person who is alleged to have committed and crime. Flowing from Article 50 of
the Constitution, every accused person has right to fair trial. These include right to be presumed
79
innocent until guilt is established and the right not to tender self-incriminating evidence. It now
common place as noted by the High Court in Republic v Lumiti (2024) that ; “ - an accused
person is the most favorite child of the law and every benefit of doubt goes to him regardless of
the fact whether he has taken such a plea.”80 The input of offender or accused, in criminal ADR
is important as they encouraged to be candid and take responsibility for their actions, understand
the impact on the victim and community.

This approach in ADR encourages active participation in making amends and engaging in
rehabilitation. Their right to legal representation throughout the process is a critical safeguard
which is equally appreciated by ADR.

The Judiciary or Court.

The role of the Judiciary is crucial as courts and judicial officers have the mandate to ensure
access to justice and the sound interpretation of the Constitution and other laws. 81 The
interpretation of the Constitution and any law is far removed from a condition of violence,

76
Constitution of Kenya 2010. Article 157 (6) (c).
77
Constitution of Kenya 2010. Article 157 (11).
78
Ibid, Article 157 (7).
79
Ibid, Article 50 (2(a & l).
80
Republic v Lumiti (Criminal Appeal E069 of 2023) [2024] KEHC 11466 (KLR) (30 September 2024)
(Judgment) High Court at Bungoma. [Link] Para 20.
81
Constitution of Kenya 2010, Article 159(1) & (2).
tumult, or hurt to anyone, as the Judiciary's operations are minutely governed by known law and
82
procedure. Importantly, the courts exercises essential oversight, actively referring cases to
appropriate ADR mechanisms, ensuring the fairness and legality of the process, and ultimately
sanctioning or incorporating ADR agreements into formal court orders, thereby granting them
legal enforceability.83

CONFLICT-RESOLUTION PRACTICTIONERS.

Mediators, facilitators, and arbitrators are the impartial third parties who guide the process. Their
neutrality, impartiality, and specialized skills in communication, conflict management, and
consensus-building are indispensable.84 For traditional dispute resolution, community members
and elders are significant stakeholders, particularly through traditional dispute resolution
mechanisms. They embody cultural values, facilitate reconciliation, and play a crucial role in the
social reintegration of offenders and the restoration of communal harmony.

EXPERTS AND WITNESSES.

Depending on the complexities of each case, skilled personal in said field are key to proper
adjudication and resolution.85 In criminal proceedings, probation and aftercare services
contribute by assessing offenders' suitability for diversion, supervising their adherence to
agreements, and providing necessary rehabilitation support. Legal representatives ensure that the
rights are protected, that the consent is informed and voluntary, and that any agreement reached
is in their best interest. Other support persons, such as , witnesses, family members or victim
support groups, also play a vital role in providing emotional and practical assistance to the direct
parties. The parties to any ADR process have liberty to restrict members present during their
session.

82
J, B Ojwang, ASCENDANT JUDICIARY IN EAST AFRICA: RECONFIGURING THE BALANCE
OF POWER IN A DEMOCRATIZING CONSTITUTIONAL ORDER (2013) (Nairobi: Strathmore
University Press, 2013) [Link] .
Accessed 24 July 2025 .Page 41.
83
Constitution of Kenya 2010. Article 159 2 (c), 165 (6).
84
Muigua. K., ‘PROMOTING PROFESSIONAL CONDUCT, ETHICS, INTEGRITY & ETIQUETTE
IN ADR.’ 2022. [Link]
[Link] . Accessed 24 July 2025
85
Evidence Act, CAP 80, Laws of Kenya, Section 48.
The effectiveness of Criminal ADR is intrinsically linked to the collaborative engagement of a
diverse range of stakeholders from victims and offenders to state actors, judicial officers,
community leaders, and professional facilitators.

DOMESTIC LEGISLATION ON ALTERNATIVE DISPUTE RESOLUTION IN

CRIMINAL PROCEEDINGS.

CONSTITUTION OF KENYA -2010.

The Constitution is the supreme law of the land, as a consequence, any other laws including
customary laws which contravene the constitution are void to the extent of their inconsistency. 86
Justice Ringera in Timothy Njoya and 6 others v Attorney General and 3 others (2004),
elaborated on this supremacy clause. That, “- Constitution is not supreme because it says so: its
supremacy is a tribute to it having been made by, a power higher than the Constitution or any of
its creatures. It is supreme because it is made by they in whom the sovereign power is reposed,
the people.87”Being supreme, it covers and governs all actors, persons and state organs at both
levels of government.

Fittingly premised in the constitution, every person has the right to access to justice, with the
state being the duty holder to always ensure that the right is fulfilled at a reasonable fee. 88 In
fulfillment of this duty and as stipulated by the constitution under article 159 (2), (c) courts, in
exercising judicial authority should embrace alternative forms of dispute resolution including
mediation, reconciliation and traditional dispute resolution mechanisms.89

Alternative dispute resolution moves to fulfill other expressed rights as to fair hearing, fair
administrative action, rights of the child and children justice as well as appreciating the nation al
values and principle of governance.90 The Supreme Court in numerous cases has reiterated the
importance of embracing out of court and administrative remedies. In NGOs Co-ordination
Board v EG & 4 others; Katiba Institute [2023], the apex court restated the importance out of
86
Constitution of Kenya 2010. Article 2(1), 2(4).
87
Timothy Njoya and 6 others v Attorney General and 3 others (2004) KEHC 2645 (KLR). High Court at
Nairobi. [Link] .
88
Constitution of Kenya 2010 Article 48.
89
Ibid, Article 159 (2), (c).
90
Ibid, Article 50, 47, 53 and 10.
court dispute settlement institution as it guided; “-exhaustion of administrative remedies aids in
protecting administrative autonomy, preserving the separation of powers, gaining judicial
economy, avoiding administrative inefficiency, and permitting courts to benefit from an
administrative body’s determination of facts and exercise of discretion.91”

The Constitution imposes limitations to the exercise of the adjudication powers and emphasizes
under Article 159 (3) (a), (b) & (c).These ADR mechanisms should not be used in ways
repugnant to justice and morality, should not contravene the bill of rights and should not be
inconsistent with the constitution.92 The Constitution further places supervision to these
mechanisms, the supervision is at the purview of the high court which has the jurisdiction over
subordinate courts, over any persons or organs exercising a judicial or quasi-judicial function.93

The Criminal Procedure Code (CPC) (Cap. 75)

The Criminal Procedure Code is an adjectival law which outlines the procedure to effect
substantive laws as Penal Code and Sexual Offences Act which stipulate on offences. The
celebrated case of Anarita Karimi Njeru v Republic [1979], the Court of Appeal, captured the
import of the Criminal Procedure Code on court’s jurisdiction. The court pointed; “-jurisdiction
has been conferred on this Court in civil matters by the Civil Procedure Act and in criminal
matters by the Criminal Procedure Code. 94” On jurisdiction of Courts, the CPC empowers the
High court and subordinate courts to adjudge on offences prescribed under the Penal Code or any
other laws prescribing offences in alignment with the 5 th Column of the First Schedule of the
CPC.95

The Code gives light to Alternative Dispute Resolution Mechanisms under Section 176 of the
CPC. This empowers courts to promote reconciliation, to encourage, and to facilitate amicable
settlement of offence of common assault, and for any other offences which do not amount to

91
NGOs Co-ordination Board v EG & 4 others; Katiba Institute [2023] (Amicus Curiae) (Petition 16 of
2019) [2023] KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment) (with
dissent - MK Ibrahim & W Ouko, [Link] para 38 & 39.
92
Constitution of Kenya 2010. Article 159 (3) (a), (b) & (c).
93
Ibid, Article 165 (6).
94
Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR), Criminal Appeal No 4 of 1979, Court of
Appeal at Nairobi. [Link] .
95
Criminal Procedure Code, Cap 75 Laws of Kenya. Section 4 & 5.
 96
felony. Further these offences should not be aggravated in degree on the terms of
compensation or other terms approved by the court. 97 This is a direct statutory provision for ADR
in criminal cases.

Courts have, in some instances, taken "bold steps" to go beyond the strict jurisdictional scope of
Section 176, even allowing ADR in certain felony cases, as seen in cases like Republic v
Mohamed Abdow Mohamed [2013] eKLR and Republic v. Ishad Abdi Abdullahi [2016] eKLR. In
separate instances as in Juma Faraji Serengi v Republic 2007, stuck to the limitation imposed
by the CPC elaborated that alternative dispute resolution cannot be used in criminal cases and “-
the state cannot be allowed to withdraw a case on felony because victim has forgiven the
accused or for any other reasons.”98 This legal lacuna will be extensively addressed in chapter 3.

The Office of the Director of Public Prosecutions Act (ODPP). CAP 6B

In criminal cases, the state is the main party bringing the complaint. The Director of Public
Prosecutions (DPP), an independent office established by the constitution, represents the state.
The DPP has the authority to initiate and conduct criminal proceedings in any court, with the
exception of the court martial.99Further has the mandate to take over and continue any criminal
proceedings commenced in any court aside from the court martial.100

The Office of the Director of Public Prosecutions (ODPP) plays a crucial role in the application
of Alternative Dispute Resolution (ADR) in criminal cases in Kenya, particularly concerning the
discontinuance of proceedings for more serious offenses. Pursuant to section 25 of the ODPP
Act, in alignment with Article 157 of the Constitution, grants the Director of Public Prosecutions
(DPP) the authority to discontinue criminal proceedings at any stage before the delivery of
judgment, provided they have the court's permission.101

96
Criminal Procedure Code, Cap 75 Laws of Kenya. Section 176.
97
Ibid.
98
Juma Faraji Serengi alias (Juma Hamisi) v Republic. Misc Criminal Application 42 0f 2006 [2007]
eKLR .High Court at Mombasa. [Link] .
99
Office of the Director of Public Prosecutions Act. CAP 6B Laws of Kenya. Section 5 (1) (b) (i).
100
Ibid, Section 5 (1) (b) (ii).
101
Ibid, Section 25 (1).
Withdrawal of plea and discontinuation of proceedings could be a result of alternative dispute
resolutions. As explained by the High Court in Republic v Jack Alexander Wolf Marrian and
Another eKLR 2019, the discontinuation of proceedings should meet the tripate test set in
Article 157 (11). Giving account to ADR, the court accounted that among the principles in
consideration, the prosecution should; consider “-wider interests in the administration of justice
including considerations of the impact of the prosecution on the community and the precedential
effects of the decision to continue or discontinue the prosecution.102”

The DPP is equally integral in plea bargaining agreements as well as in diversion of offenders
especially children and those with minor offenses from formal prosecution.103

The Criminal Procedure (Plea Bargaining) Rules. Legal Notice 47 of 2018.

Plea bargaining is a process which the prosecution and accused person enter in an agreement to
bring a case to an end with the approval of the court. 104 A plea agreement can be entered into
between the prosecutor and an accused person after the accused has been charged in court and at
any time before the court passes judgment. 105 The agreement must be in the form set out in the
Schedule to these rules and comply with sections 137E and 137F of the Criminal Procedure
106
Code (Cap. 75). The Director of Public Prosecutions (DPP) may develop other forms,
provided they also comply with these sections.107

A plea agreement may include a clause for the payment of compensation to a victim by an
accused person. The value or form of compensation is agreed upon by the victim and accused,
and endorsed by the prosecutor if it serves justice. 108 The prosecutor and the accused person (or
their legal representative) may each make a specific recommendation to the court as to the

102
Republic v Jack Alexander Wolf Marrian and Another [2019].KEHC 11171 (KLR) Misc. Application
No. 75 and 64 of 2019. [Link] .
103
Criminal Procedure Code, Cap 75 Laws of Kenya. Section 137A.
104
Task Force on Children Matters. PLEA BARGAINING IN CRIMINAL CASES, National Council on
the Administration of Justice (NCAJ) 10. 2019.
[Link] . Accessed 24 July 2025
105
Criminal Procedure Code, Cap 75 Laws of Kenya. Section 137 A.
106
The Criminal Procedure (Plea Bargaining) Rules. Legal Notice 47 of 2018. Rule 2.
107
Ibid.
108
Ibid, Rule 8.
sentence to be imposed and include it in the final plea agreement. 109 Plea bargaining offers the
prosecutor and accused, chance for consultations (including victim hearing), agreement, court
approval. This mirrors a settlement out of court thus ADR.

Children Act (No. 8 of 2001, Revised 2022) Cap 141

The Constitution move to stipulate the principle of best interest of the child as a guiding pillar in
every matter concerning the child.110 Further it outlines children have a right not to be detained
except as a last resort.111 The Childrens Act further moves to protect children in conflict with the
law through diversion. Diversion as defined in section 2 means intervention programmes
designed to divert the children from criminal justice system. 112 The aims of diversion is to make
use of alternative methods of holding children accountable for crimes, to promote rehabilitation,
reconciliation, restitution and to minimize stigmatization due to subjection to the criminal justice
system.113 The Act further imposes considerations for diversion and this includes if the offence
which he or she is suspected to have committed or charged with is not a capital offence. 114 The
rational for this limitation will be discussed in depth at Chapter 3.
INTERNATIONAL LEGAL INSTRUMENTS.

With the leave of Article 2(5) and 2(6) of the Kenyan Constitution, ratified laws, treaties and
conventions form the substance of our law. 115 Also declarations such as the UDHR and Doha
Declaration are legally binding instruments despite not having been ratified because they contain
principles, provisions and rights that are based on human rights standards enshrined in other
legally binding instruments like conventions and treaties.116

109
The Criminal Procedure (Plea Bargaining) Rules. Legal Notice 47 of 2018. Rule 12.
110
Constitution of Kenya, 2010. Article 53 (2).
111
Ibid. Article 53(1) (f).
112
Childrens Act Cap 141, Laws of Kenya.
113
Ibid, Section 226.
114
Ibid, Section 227 (2) (c).
115
Constitution of Kenya. 2010. Article 2(5) & 2(6).
116
SPECIAL RAPPORTEUR ON HUMAN RIGHTS DEFENDERS BY THE UNITES
NATIONS .United Nations Office of the High Commissioner OCHCR. [Link]
procedures/sr-human-rights-defenders/declaration-human-rights-defenders#:~:text=Legal
%20character,on%20Civil%20and%20Political%20Rights. Accessed 26 July 2025.
AFRICAN CONVENTION ON THE RIGHTS AND WELFARE OF THE CHILD.

The African Charter on the Rights and Welfare of the Child (ACRWC) is the only regional treaty
on the rights of the child in existence and stands as the most important instrument for children’s
rights within the African Union (AU) human rights system. 117 It was adopted in 1990 and came
into effect in 1999. It has a lot of similarities to the UN Convention on the Rights of the Child
(CRC), which both complement and strengthen each other.118 However, the ACRWC contains
more specific provisions regarding issues that are especially pertinent to African children, such
as harmful traditional practices and children living in prison with their mothers.

Article 17 of the ACRWC specifically addresses the "Administration of Juvenile Justice". This
article outlines several core principles designed to establish child-friendly justice systems for
children accused or found guilty of infringing penal law. 119 A central tenet is the right to special
treatment for every child in such circumstances. The child's respect for human rights and other
people's fundamental freedoms should be bolstered by this treatment, which must reflect the
child's sense of dignity and worth. The essential aim of treatment for any child during trial, and if
found guilty of infringing penal law, is explicitly stated as their reformation, re-integration into
their family, and social rehabilitation.120

DOHA DECLARATION ON INTEGRATING CRIME PREVENTION AND CRIMINAL

JUSTICE (UNODC, 2015).

Under this Declaration, member states reaffirm their commitment and strong political will in
support of effective, fair, humane and accountable criminal justice systems and the institutions
comprising them, and encourage the effective participation and inclusion of all sectors of
society.121 Further member states commit to adopt effective measures for the recognition,
protection and provision of support for and assistance to victims and witnesses in the framework

117
AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD AND
FAIR AND EFFECTIVE CRIMINAL JUSTICE FOR CHILDREN. Justice For Children Briefing No.1
2013/05. [Link]
Accessed 26 July 2025. Page 1.
118
Ibid.
119
African Charter on the Rights and Welfare of the Child. Article 17(1).
120
Ibid .Article 17(3).
121
Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations
Agenda to Address Social and Economic Challenges and to Promote the Rule of Law at the National and
International Levels, and Public Participation.
of criminal justice responses to all crimes.122 Equally in line with out of court settlements and
access to justice,, members commit to review and reform legal aid policies for expansion of
access to effective legal aid in criminal proceedings for those without sufficient means. 123

CONCLUSION.

122
Ibid.
123
Ibid.