By Dr.

Otiende Amollo, EBS Chairperson of

the Commission on Administrative Justice

A Presentation made at the Law Society of

Kenya Seminar on the theme Alternative
Dispute Resolution Spectrum
Eldoret, 9th October 2015

Set of approaches and techniques aimed at

resolving disputes in a non-confrontational
way

Advantages of ADR:
Cost and time-effective
Non-confrontational and flexible
Focuses on restorative justice as opposed to
retributive justice
Appreciates
the
cultural
contexts
and
addresses the root causes of disputes

Arbitration
Mediation [A. 189 & 252]
Conciliation [A. 189 & 252]
Negotiation [A. 189 & 252]
Reconciliation [S. 20 Land Act]
Intermediary [A. 50(7) & S. 33 IRA]
Adjudicator [S. 26 CAJ Act]
Traditional dispute resolution methods
[A. 159(2)(c)]
Truth and Justice

Necessity of access to justice for the rule of

law & realisation of civil liberties
Access to justice connotes adequate dispute
resolution process Beyond judicial system
ADR
enhances
access
to
justice
Complements the judicial system
Global emphasis on use of ADR
ADR ensures realisation of the right of
access to justice [Article 48 of the
Constitution of Kenya, 2010]

Pre-colonial traditional justice

based on restorative justice

system

Conventional mode of disputes resolution

of the traditional justice system

Transplantation of English legal system

and relegation of the traditional justice
system to the periphery.

Resilience of the traditional justice system

First statute in 1914 Arbitration Ordinance based on

the English Arbitration Act of 1889

Amendments in 1968, 1995 and 2009 Later

amendments based on the model of the United Nations
Commission on International Trade Law of 1985.

Other
relevant
laws
include
the
Constitution,
Employment Act, Labour Relations Act, Labour
Institutions Act, Civil Procedure Act, Environment and
Land Act, Commission on Administrative Justice Act,
National Land Commission Act and Nairobi International
Centre for Arbitration Act.

Role of other actors such as the Chartered Institute of

Arbitrators (Kenya Chapter) and the Centre for
Alternative Dispute Resolution.

Article 159(2) Principles of exercise of judicial

authority Broad nature of the provision
including

Limitation of traditional dispute resolution Articles 2(4) and 159(3) of the Constitution

Article 67(2)(f) Power to the National Land

Commission

Article 113 Mediation Committees between the

National Assembly and the Senate

Article 189(4) Resolution of Inter-governmental

disputes

Article 252(1)(b) ADR powers for CCs and IOs

Arbitration Act

Nairobi International Centre for Arbitration Act

Civil Procedure Act

Environment and Land Court Act

Commission on Administrative Justice Act

Inter-governmental Relations Act

National Government Co-ordination Act

Employment Act

Labour Relations Act

Labour Institutions Act

Alternative Dispute Resolution: A misnomer?

ADR: A threat to the judicial system?
Differentiation in conflict contexts
ADR is appropriate for conflict management
e.g. PEV in Kenya & inter and intra state
conflicts, & non-justiciable disputes
Court sanctioned vs Independent ADR (CAJ,
NLC, KNCHR & KNCHR)
Complementary of mechanisms
Constitutional approach of appropriateness of
conflict resolution instead of alternative.
Shared responsibility in administration of
justice

Caseload for the Judiciary further necessitates

need for complementarity

For instance, in 2012/13 FY, the total number of

cases handled by the Judiciary (new and
pending) stood at 847,853 out of which 190,093
were resolved leaving 657,760 pending.

The population ratio per judicial officer:

Kenya - 1: 78,000
Rwanda 1: 42,000
European Union 1: 1,500
China/Japan/India 1: 10,000

Insufficient legal framework

Knowledge of ADR

Acceptance of ADR
Courts Perception of competition &
reluctance to refer matters to ADR
Lawyers Lack of clear remuneration scheme
Public Obsession with court orders

Lack of clarity on place and relationship

with pseudo-statutory arbitration

Office of the Ombudsman established under Art. 59(4) of

the Constitution and CAJ Act.
Mandate includes:

Maladministration
Administrative Injustice
Misconduct and Integrity Issues
Advisory Opinions and Recommendations
Training of Public Officers
Performance Contracting
Alternative Disputes Resolution
Special Rights
Shared role on Constitutionalism
Persons in Custody
Implementation of Recommendations of Commissions and Task
Forces

Powers of the High Court

Work with different public institutions to promote ADR

on matters affecting public administration [s. 8(f)].

Article 252(1)(e) of the Constitution - powers for

conciliation, mediation and negotiation

Part V of the CAJ Regulations on ADR

Mandate in dispute prevention through systems

investigations and proposals on improvement of public
administration [Section 8(a),(b),(d)(e) and (f) of the
Act].

Take Remedial Action A. 59(2)(j) & S. 8(c) Binding

Decisions and remedies [compensation, restitution,
apology, specific performance & JR remedies]

Mediation
to
the
Truth,
Justice
and
Reconciliation Commission on the dispute
between
the
Chairperson
and
the
Commissioners

Mediation between the National Gender and

Equality Commission and the Salaries and
Remuneration Commission

Mediation
between
the
Commission
and
the
Remuneration Commission

Mediation between the National Police Service

Commission and the Inspector-General of Police

National
Salaries

Land
and

Mediation between Kenya Power and Madiany

Water and Sanitation Project

Mediation between Benson Opiyo and the Kenya

Revenue Authority

Mediation between 83 former employees and the

Kenya Railways Corporation

Ongoing mediation involving State Organs

Recognition of jurisdiction in ADR recognized in

Nyeri HC Civil Petition No. 3 of 2014, County
Government of Nyeri vs Cabinet Secretary for
the Ministry of Education, Science and
Technology, and the Principal Secretary for the
Ministry of Education, Science and Technology