Professional Documents
Culture Documents
Adr Assigment
Adr Assigment
to various areas of law, including family, criminal, environment, employment and business 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.
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.
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.
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.
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.
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