Mediation in Kenya

Quick Facts

• Legal Framework: Mediation in Kenya follows the Constitution of Kenya 2010, specifically Article 159(2)(c) which mandates courts and tribunals to promote alternative forms of dispute resolution including reconciliatio...
• Cultural Approach: Kenya's cultural approach to mediation is influenced by traditional African dispute resolution mechanisms emphasising community harmony, reconciliation, and consensus-building. The Constitution explic...
• Typical Costs: Court-annexed mediation in Kenya is designed to be cost effective compared to litigation. The Civil Procedure (Court-Annexed Mediation) Rules 2022 provide framework for remuneration of advocates parti...

Mediation Research

Legal Framework

Mediation in Kenya follows the Constitution of Kenya 2010, specifically Article 159(2)(c) which mandates courts and tribunals to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Civil Procedure (Court-Annexed Mediation) Rules 2022 (Legal Notice 145 of 2022) provide the detailed framework for court annexed mediation. The Arbitration Act 1995 (Chapter 49) governs arbitration and provides framework for both domestic and international arbitration, aligned with UNCITRAL Model Law. The Judiciary has been implementing mediation as an ADR initiative since 2016 under the Social Transformation through Access to Justice (STAJ) Vision. The Civil Procedure Act provides statutory basis for court procedures including mediation. The 2022 Rules introduced provisions for Private Mediation Agreements, allowing parties to forward private mediation agreements for registration and enforcement without filing pleadings.

Court System

Kenyan courts actively promote court annexed mediation (CAM) to alleviate case backlog and expand access to justice. The Judiciary introduced CAM in 2016 and has established 60 Mediation Registries across the country as of May 2024. The process involves case filing in court, screening by registrar/deputy registrar to assess suitability, court referral to mediation, mediator appointment from accredited panel, pre-mediation conference to set ground rules and timelines, confidential mediation sessions, settlement agreement drafting if parties agree, and court adoption of agreement as binding decree. If no agreement is reached, case reverts to trial. The Taskforce continues rolling out mediation in remaining court stations and is in the 5th phase of rollout. The Action Plan on CAM implementation aligns pilot and rollout outcomes and creates framework for three-year implementation plan. Deputy Registrars and Screening Officers decide case suitability for mediation. Court Mediation Registries manage referrals, appointments, and compliance with timelines.

Mediator Regulations

The Mediation Accreditation Committee (MAC) accredits and regulates mediators in Kenya. As of May 2024, there are 1,515 accredited mediators with 835 having active status. Over 2,000 mediators have been trained, with about 900 actively serving. Accreditation requires professional training, vetting, compliance with Code of Ethics for Mediators, and ongoing development. The Judiciary has developed Mediation Manual and Code of Ethics for Mediators to support enhanced uptake and success of mediation. Mediators are neutral third parties trained in conflict management. Their duties include facilitating communication between parties, identifying underlying interests, proposing creative settlement options, and drafting clear agreements. The accreditation process is managed by the Mediation Accreditation Committee. The Judiciary maintains List of Accredited Mediators available on its website.

Cultural Approach

Kenya's cultural approach to mediation is influenced by traditional African dispute resolution mechanisms emphasising community harmony, reconciliation, and consensus-building. The Constitution explicitly recognises traditional dispute resolution mechanisms alongside formal ADR methods. The concept of 'Harambee' (pulling together) and community-based conflict resolution aligns with mediation principles. The cultural context values face-saving, maintaining relationships, and finding mutually acceptable solutions rather than adversarial outcomes. The Judiciary's STAJ Vision emphasises expanding doorways of justice and social transformation. CAM has restored over 8,115 relationships between disputing families, demonstrating cultural alignment with reconciliation values. The emphasis on reconciliation in Article 159 reflects cultural preferences for harmony over confrontation.

Typical Costs

Court-annexed mediation in Kenya is designed to be cost effective compared to litigation. The Civil Procedure (Court-Annexed Mediation) Rules 2022 provide framework for remuneration of advocates participating in mediation. The emphasis on reducing case backlog and expanding access to justice suggests cost effective approach. Private mediation through accredited mediators charges fees based on case complexity and mediator qualifications. The 2022 Rules allow enforcement of private mediation agreements without fresh pleadings, reducing costs. The economic impact is significant - over KSh 52 billion has been injected into economy through CAM settlements. The cost savings compared to litigation are substantial due to faster resolution times and reduced court procedures. The Judiciary's multi-door approach to access to justice includes cost considerations.

States and Regions