By Anne Amadi
As part of the Judiciary Transformation process for speedier and more efficient service delivery, Kenya’s Judiciary has put in place measures to effectively deal with the age-old problem of never-ending case backlogs in the courts. Among these measures include recruitment of more judicial officers and staff, building and refurbishment of more courts, adoption of modern management practices including but not limited to leveraging ICT (information communication technology) in case management and processes.
The Judiciary has also carried out special initiatives such as themed Service Weeks where categorized cases are heard and concluded within the Service Week period. The Case Load Report on the Backlog The Judiciary Case Load Report by the Directorate of Performance Management reveals that as of June 2018, there were 549,556 cases pending in courts countrywide.
From these figures, there is no denying that the work ahead in resolving backlog of cases remains monumental, at least for the time being. One of the biggest contributors to case backlog in the country is the adversarial nature of our judicial system which also leaves severely damaged relationships after the long tortuous court process.
The Constitution of Kenya 2010 endorsed Alternative Dispute Resolution as a legal alternative to court proceedings in order to hasten the process of dispute resolutions while at the same time ensuring relations between disputants remain amicable.
Article 159 (2(c) of the Constitution encourages courts to use alternative forms of dispute resolution. It provides: “Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).” It is on the above premise that the Judiciary has pegged its move and emphasis to Alternative Dispute Resolution (ADR).
The Court Annexed Mediation Program Court annexed mediation was introduced on a pilot basis at the Family and Commercial Divisions of the High Court. The choice of the two Divisions was deliberate. The cases in Commercial Division of the High Court are worth billions of shillings, which if resolved expeditiously, would release substantial resources into the economy.
On the other hand, the Family Division of the High Court is the Division in which disagreements tear families apart as generations fight over family wealth. The legal fights sometimes drag on for decades and generations to the extent that by the time the dispute is resolved, none of the original parties is alive. Benefits to all the Parties Involved… Mediation has many benefits to all the parties. Among these benefits include: Enhanced access to Justice for all Reduction of case backlog Speedy resolution of disputes Reduced cost of resolving disputes Creates an atmosphere of accommodation and tolerance Encourages resolutions suited to parties’ needs Promotes voluntary compliance of parties with resolutions Restores pre-dispute relationships Builds confidence in speedy resolution of commercial disputes thereby improving the country’s attractiveness as an ideal place for direct foreign investments (DFI).
Indeed, the implementation of Court-Annexed Mediation has contributed to Kenya’s ranking in ease doing business. The World Bank Report which assesses various factors including enforcing contracts and resolving insolvency ranked Kenya third in Sub-Saharan Africa in the 2018 World Bank Ease of Business Index, moving up 19 places from global ranking of 80 in 2017 and 92 in 2016. Equally significant, the time for settling a dispute has reduced from an average of 50 months in Commercial & Tax Division and 43 months in Family Division respectively to an average of 66 days, according to Judiciary’s Case Audit and Institutional Capacity Survey. Mediation has greatly contributed to restoration of relationships.
Since its inception, 230 strained family relationships have been restored by resolution of cases in the Children’s Court and Family Division. During the Mediation Settlement week, a Children’s Case was settled within an hour and a relationship which had been strained owing to a court battle was restored.
Rolling Out Court Annexed Mediation into the Counties Borrowing from the lessons learnt during the pilot and the settlement week the Hon. Chief Justice David Maraga gazetted Practice Directions to guide the roll out of Court Annexed Mediation to 10 Counties of; Mombasa, Eldoret, Kisumu, Nakuru, Nyeri, Machakos, Garissa, Embu, Kakamega and Kisii.
The Taskforce that was gazetted to oversee the implementation of Court Annexed Mediation has carried out launch activities in the Counties of Nyeri, Kakamega, Kisii, Kisumu, Mombasa and Nakuru. During the launch, internal and external stakeholders who include Advocates, Court Users Committees, Mediators, County Leaders, Media, Community Leaders and members of the public are sensitized and engaged on court annexed mediation.
Registries are also opened to receive mediation matters. The Judiciary is confident that Kenyans of all walks of life, foreigners doing business in Kenya as well as other stakeholders will embrace these innovative initiatives for dispute resolution so that together we can exorcise the ghosts of case backlog for an expeditiously and efficient delivery of Justice for all.
(The writer is the Chief Registrar of the Judiciary)