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    ADR ASSIGMENT

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    adr

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    2 views3 pages

    Adr Assigment

    Uploaded by

    merciruto1
    adr

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    of 3

    a) The different types ADR mechanisms under the African customary law, applicability of ADR

    to various areas of law, including family, criminal, environment, employment and business law.

    APPLICABILITY OF ADR ON FAMILY LAW

    Family law in Kenya is mainly governed by the Marriage Act 2014. The Act provides for
    resolution of matrimonial disputes and specifies the relevant laws to be applied depending on the
    type of marriage. It stipulates that parties to a customary marriage may undergo a process of
    conciliation or customary dispute resolution before the court may determine a petition for the
    dissolution of marriage.1

    In the case of matrimonial property, section 11 of the Matrimonial Property Act states that,
    pursuant to the values and principles of the Constitution, the customary law of the communities
    in question should be applied during the distribution of matrimonial property between and
    among spouses.

    (a) Customary law relating to divorce or dissolution of marriage is taken into account;

    (b) The notion of future generations' rights to community and ancestral land being protected as
    provided for in Article 63 of the Constitution; and

    (c) The principles relating to access and participation provided for in Article 63 of the
    Constitution. A wife/wives' use of ancestral land and the cultural household.

    APPLICATION OF ADR IN CRIMINAL LAW

    Reconciliation is encouraged by Section 176 of the Criminal Procedure Code60. It promotes and
    helps the peaceful resolution of criminal problems. In proceedings for common assault or any
    other personal or private offense, reconciliation is encouraged. In terms of payment of
    compensation or punishment, not equivalent to a felony and not exacerbated in degree other
    terms that have been authorized by the court.

    However, such efforts must be started before the court issues a final ruling or completes its task
    in the matter. However, it should be noted that the use of ADR in criminal justice for serious
    cases involving capital offenses is still a point of contention, as evidenced by the decision of
    1
    S. 68, Marriage Act, 2014.
    Republic v Mohamed Abdow Mohamed [2013] eKLR2, in which a murder suspect was released
    on the basis of an out-of-court agreement at the request of the victims' counsel. The judgement
    was also cited in the recent Republic v Ishad Abdi Abdullahi [2016] eKLR3 decision.

    APPLICATION OF ADR ON ENVIRONMENTAL LAW

    The Environment and Land Court Act of 2011 empowers the court to adopt and apply any rule or
    regulation on its own initiative, with the consent of the parties, or at the request of the parties.
    Conciliation, mediation, and other appropriate forms of alternative dispute resolution
    conventional conflict settlement processes in line with Article 159 (2) (c) of the International
    Covenant on Civil and Political Rights Constitution.

    Traditional conflict resolution processes have always been used in addressing environmental
    problems, with elder councils, peace committees, land adjudication committees, and municipal
    environmental committees all playing a key part in controlling conflicts.

    APPLICATION OF ADR ON EMPLOYMENT LAW

    The Industrial Court Act allows the court to halt proceedings and refer the case to conciliation,
    mediation, or arbitration. Article 159 of the constitution allows the court to use alternative
    dispute settlement and traditional conflict resolution processes.

    APPLICATION OF ADR ON BUSINESS LAW

    The Arbitration Act, 1995 also provides for domestic arbitration and international arbitration of
    mainly commercial nature. The Consumer Protection Act of 201216 was designed to promote
    and improve the social and economic wellbeing of Kenyan consumers by establishing a
    consistent, accessible, and efficient mechanism for the consensual resolution of consumer
    complaints.

    b) The meaning, scope and application of Court-Annexed mediation.

    Court-annexed mediation is a form of Alternative Dispute Resolution whereby cases which


    are brought to court for litigation are referred to mediation for possible settlement.

    2
    Criminal Case No. 86 of 2011
    3
    Criminal Case No. 32 of 2012
    On a trial basis, the Kenyan judiciary introduced court-annexed mediation in the Family and
    Commercial Divisions of the Milimani Law Courts in Nairobi. After then, the project will be
    expanded out across the entire country.Thi is how it functions; If you file a case in the Family or
    Commercial Divisions of the High Courts, Milimani Law Courts in Nairobi, it will be examined
    to see if it should go to mediation.

    All cases submitted at the Commercial and Family Divisions of the High Court in Milimani after
    April 4, 2016, , were subjected to screening. Each case will be screened using a set of
    internationally approved mediation screening standards. Each case will be reviewed by a suitably
    trained screening officer who will determine whether the matter should be submitted to
    mediation.

    Within seven (7) days after the MDR takes a decision to submit your matter to mediation, the
    MDR will notify you of the decision. The MDR will then select three (3) mediators from the
    Register of Judiciary's list of accredited mediators and tell you of their selections. The Mediation
    Accreditation Committee (MAC), an independent agency established under the Civil Procedure
    Act, maintains the Register.

    You must specify your chosen mediator from the three names in order of priority within seven
    (7) days of being notified, and advise the MDR of your preference in writing. The MDR will
    appoint a mediator to handle your case when you inform them of your preferences. The parties
    can also choose a mediator outside the referenced mediators provided if the two parties agree.
    The appointed mediator will schedule a date for initial mediation and notify you of the date, time
    and place. Mediation agreement will be filed with the MDR. It will be adopted and enforced as a
    judgement or order of the court.

    One cannot appeal against a Judgement or an Order Arising From mediation. When one
    requires interim remedial measures from the court, there will be an ADR judge who will handle
    interim applications and give appropriate reliefs. When one wants to choose out of court
    mediation the Judiciary continues to encourage alternative modes

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