The Judiciary has made some positive strides in reducing the backlog of cases through alternative justice systems, particularly the Court Annexed Mediation (CAM), which was established five years ago.
The tenure of former Chief Justice David Maraga focused on all courts concluding all cases that were five years old and above. We will continue that trajectory and ensure that at any given time, no case should be in the justice system for longer than three years.
Following the launch of the CAM in 2016 in Nairobi, the Judiciary has established mediation in 12 other regions. Litigants seeking CAM to resolve long-standing matters can now get assistance at CAM registries in Mombasa, Tononoka, Eldoret, Kisumu, Nakuru, Nyeri, Machakos, Garissa, Embu, Kakamega, Malindi, Nyamira and Kisii law courts.
The Mediation Task Force chaired by Justice Fred Ochieng has embarked on rolling out mediation to other stations. Soon, litigants in Kerugoya, Siakago, Kitale and Kapsabet will have CAM registries where they can have their matters resolved fast and amicably.
The biggest achievement of the Court Annexed Mediation has been in helping to reduce case backlog while at the same time unlocking resources to the economy in terms of billions of shillings.
It is conservatively estimated that since its inception, CAM has assisted in unlocking more than Sh10 billion that had been held up in the economy in the adversarial litigation of the past.
Another big beneficiary of mediation has been warring families. According to the presiding judge of the Family Division of the High Court, Justice Aggrey Muchelule, the Judiciary is in the process of ensuring that all Family cases across the courts implement CAM.
Mediation has provided parties with the opportunity to settle disputes in a reconciliatory and cost-effective manner. Mediation, which is less emotionally draining than court cases, has helped in restoring broken relationships. Statistics show that more than 2,500 Family matters benefited from the process with about 1,500 cases being solved in the High Court Family Division and Children Court in Nairobi region only.
What’s more, over time, Mediation has become a popular method of resolving civil matters. During the pilot stage, there were only 705 matters in mediation compared to near 8,500 cases.
Another critical benefit of Mediation is that it saves time, and time is money. The CAM has proved this by improving on the timelines for resolving civil matters.
Under adversarial court trials, it takes an average of 673 days (about two years) to settle some not-so-complex civil matters. But with the adoption of CAM, matters processed through mediation take an average of 69 days to settle.
The speedy settlement has contributed to Kenya’s improved ranking in the 2020 World Bank Ease of Doing Business Index at 56 out of 190 countries. In the competitive world of international business, this kind of ranking means a big deal and is worth billions of dollars in the business world.
Furthermore, in a study by Law Development Partnership (LDP), it is estimated that 100 percent roll-out of Court Annexed Mediation has the potential to aid the Judiciary clear case backlog several years before the anticipated deadline.
As Mediation continues to grow its roots in the country, there has been an increased collaboration among key stakeholders. Among these is the general litigating public who have realised that the system is faster, reconciliatory and abhors inherent homegrown problem-solving mechanisms.
Other partners who are embracing mediation are lawyers who were first perceived to be against the alternative justice system. However, lawyers are top among those accredited as mediators.
There has been a historic achievement in developing policies, rules, practice directions and now the conversations on the legislation that govern alternative dispute resolution are in process.
As mediation gets entrenched into the legal system, it will have the significant potential not merely for reducing the burden of case backlog, but more fundamentally bring about a qualitative change in the focus of the legal system from litigation to mediation.
However, even as we celebrate these achievements, the Judiciary has some work to do towards realising the vision of the promotion and use of mediation. First among the tasks ahead is the continuous engagement and collaboration with actors in the justice system, stakeholders, court users and public and private sectors.