In article 1, the concept of access to justice was discussed as well as Negotiation and Traditional Dispute Resolution as a means of dispute resolution. This article will expound on other means of dispute resolution and their basis in law.
Mediation is a process involving the voluntary presentation of a dispute by two opposing parties to an impartial and neutral third party who helps to facilitate the parties to arrive at a mutually acceptable solution. The mediator seeks to determine the issues between the parties and guide them to arrive at a solution and it is not his place to make a decision. In Kenya, the National Dialogue and Reconciliation Process after the Post-Election Violence that occurred in 2007/2008 is a good example of mediation. After the outbreak of violence following the results of the 2007 Presidential Elections there was a need to end the violence by facilitating negotiations between the two presidential candidates, Hon. Mwai Kibaki and Hon. Raila Odinga. The presidential candidates refused to dialogue despite pressure from other African leaders. Eventually the mediation team chaired by former United Nations Secretary General, Kofi Annan took up the task to facilitate talks between the parties. The mediation covered four main agenda items namely: stopping the violence; promoting reconciliation, healing and restoration; overcoming the political crisis; and long term solutions to past historical injustices. This culminated into the formation of a coalition government through the drafting of the Kenya National Accord and Reconciliation Act 2008 where the two parties agreed to share power.
The amendments to the Civil Procedure Act have now given more recognition to the process of mediation. Section 2 gives the definition of mediation and provides for certain safeguards during the process of mediation. Section 59A provides for the Mediation Accreditation Committee responsible for certification and training of mediators as well as the development of ethical standards. The court may refer a case for mediation where the parties request, where it is appropriate or where the law requires and the parties shall select a mediator. Any agreement arrived at during the mediation process shall be recorded and registered by the court and no appeal shall lie in respect of such an agreement. The court is granted with power to enforce such agreements pursuant to section 59D. Currently, there is Court Annexed Mediation available at the courts. In the case of Universal Satspace (North America) LLC v Government of the Republic of Kenya a mediation agreement was enforced although it was not signed by the defendants. Universal Satspace had entered into a contract to provide satellite based internet installation services to Kenya worth $19 million which was sued for by the company due to non-payment. Kenya defended their claim, pleading that their signatory had no authority to act, there were corrupt payments and that the contract was ultra vires. The parties resorted to mediation and a settlement of $7.6 million was arrived at. The defendants delayed signing the agreement for a period of 21 days. The money was never paid therefore the company sued for its enforcement. Clause 17 of the agreement provided that the agreement would only be binding if it was in writing and signed by the parties. Notwithstanding the defect, Teare J granted the company’s order to strike out the defence and counterclaim Kenya had filed thus enforcing the agreement.
Although not listed in Article 159, this method is similar to mediation but the conciliator sometimes may not be a neutral party. This method has been taken up in labour disputes and the law provides that this is a mandatory step and the Cabinet Secretary is responsible for appointing the conciliator. If an attempt has not been made to conciliate then the Industrial Court may decline to hear a dispute and the court sometimes may refer the case to other ADR mechanisms if necessary. Any settlement arrived at after conciliation shall be recorded, signed by the parties and lodged with the Cabinet Secretary.
Arbitration as an ADR mechanism is similar to litigation in some respects. It is a process that involves the voluntary presentation of a dispute to a neutral third party who makes a binding decision in a bid to resolve the dispute. It is governed by the Arbitration Act and UNCITRAL Model Law. The main difference between litigation and arbitration is the level of party autonomy with respect to appointment and challenge of the arbitral tribunal, determination of procedure to be followed, selection of venue, language and law to be applied to the procedure. The court is not given an avenue to interfere in arbitral proceedings except from means stipulated as under the Act such as setting aside and enforcing awards, stay of proceedings, granting interim measures of protection. The arbitral tribunal is given certain powers, duties and immunities to enable its members to carry out its duties efficiently; however it is important to note that the power of an arbitrator is vested in his person and ceases on his death and is not revoked by the death of any party which appointed him. However the law confers upon the tribunal power to determine its jurisdiction over a matter presented before it through the Doctrine of Kompetenz-Kompetenz. The jurisdiction of the tribunal is conferred by statute, agreement, customs of trade and these determine what the tribunal is authorised to deal with. As stated by Nyarangi J in the case of Owners of The Motor Vehicle “Lillian S” v Caltex Oil Kenya Limited “Jurisdiction is everything.” There is an onus on the parties to do everything possible to assist the tribunal in the dispensation of justice.
Arbitration may be given effect either by way of a contractual agreement or through a court reference. In some instances the court may seek to give effect to an arbitration agreement entered into by the parties where it is valid, enforceable and seeks to resolve a dispute within the ambit of the agreement. Even though the main contract may be void, the arbitration agreement is usually given effect through the Doctrine of Separability and the dispute may be heard by the tribunal as the agreement is considered separate from the main contract. Arbitration is usually confined to matters concerning contractual disputes and does not extend to criminal cases, family disputes and public policy matters, but the law is not clear on the matters that are amenable to arbitration. In this respect, the court in the case of Booz Allen and Hamilton v SBI Home Financing, discussed the concept of arbitrability of disputes, and stated that arbitrability concerns matters within the scope of the agreement but made note that the Indian Arbitration Act did not specifically exclude certain matters as being not arbitrable. This is the same position under the Kenyan Arbitration Act. As a method of dispute resolution, arbitration is preferred as it is flexible, faster and relatively inexpensive. The Nairobi Centre for International Arbitration Act 2012, which came into force on January 25 2013, is an active step on the part of the state to ensure access to justice by providing a centre which will cater for settlement of disputes.
The concept of access to justice is gradually being achieved through the use of ADR. International agreements have encouraged the use of ADR. Various statutes such as the Civil Procedure Act, in advocating for pre-trial conferences encourage parties to resort to ADR mechanisms to reach a settlement. Under the new constitutional dispensation, the new land management systems encourage the use of ADR in relation to community land disputes. ADR may be used in intergovernmental disputes between the National and County governments. In this digital era, use of technology should be encouraged to facilitate Online Dispute Resolution as the world is now a global village. Moving forward, the use of ADR in Kenya must be supported and encouraged if access to justice is to be realized.
Trevor Keck, “Mediating Ethnic Conflict: Kofi Annan in Kenya” Selected Works of Trevor Keck, September 2011 at pp 7
 Ibid pp 9
 The Statute Law (Miscellaneous Amendments) Act, 12 of 2012
 The Civil Procedure Act section 59B (1) and (2)
 Ibid section 59B (4) and (5)
 Claim No. 2006 Folio 881, The High Court of Justice Queens Bench Division, Commercial Court
 Constitution of Kenya 2010
 Labour Relations Act 2007 Laws of Kenya, Part 8 section 65- 70 as read with section 58
 Ibid section 77, Industrial Court Act 11 of 2011 Laws of Kenya section 15(1) and (2)
 Labour Relations Act Laws of Kenya section 68
 Arbitration Act 1995 (Revised 2009) sections 11 and 12 as read with sections 13 and 14
 Ibid section 20
 Ibid section 21, 23 and 29
 Ibid section 10 read with sections 35, 36, 6, 7, 18
 Ibid sections 20- 29 as read with section 16(4) and 8(2)