Prior to the introduction of mediation to the Kenya Judiciary in 2016, on what level has alternative dispute resolution (ADR) traditionally been practiced in Kenya? ADR was formally entrenched in our Constitution, 2010 in Article 159(2) (c) as a principle for exercising judicial authority in Kenya, which laid a constitutional foundation for arbitration and mediation that allowed courts to sanction their use within the court system. Prior to this, arbitration was practiced in Kenya as an alternative to litigation per the Arbitration Act, 1995 (amended in 2009) based largely on the UNCITRAL Model Law. It was and remains the most prevalent ADR mechanism in commercial disputes. Later on, mediation was introduced as a courtannexed practice in 2012 via our Civil Procedure Act. However, the first cohort of court-annexed mediators were accredited by the Judiciary in 2016. I was accredited as No.005. However, within Kenyan culture ADR remains widely practiced informally and primarily through negotiation and mediation, especially at family, religious and community levels. Before court accreditation I therefore practiced as a mediator from 2012 and did substantial pro bono work at FIDA Kenya, a female advocate organisation that champions women’s rights. This familiarity with mediation explains its acceptance and uptake in the more formal settings. Parties also appreciate their ability to have a greater say and increased control in the outcome of their cases. In what ways did the 2012 introduction of the Statute Law (Miscellaneous Amendments) Act No. 12 have on the growth of Kenyan ADR? Act No.12 of 2012 introduced mediation into our civil procedure process. It defined mediation as an informal and non-adversarial process where an impartial mediator encourages and facilitates the 66 LAWYER MONTHLY MAY 2023 The Growth of ADR in Kenya Thought Leader The legal sector’s global shift towards widespread adoption of ADR continues to gather momentum. Though progress is gradual, institutions the world over are growing increasingly open to the use of mediation, arbitration and other methods of dispute resolution over litigation. In this article we hear from Jacqueline Waihenya, a highly experienced lawyer and ADR specialist, on how the ADR climate is changing in Kenya.
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