Let us try mediation to end case backlog, hence solve court delays

David Maraga

Former Chief Justice David Maraga displays the State of the Judiciary report at the Supreme Court of Kenya, Nairobi, during his retirement ceremony.

Photo credit: Evans Habil | Nation Media Group

What you need to know:

  • Kenya might not miraculously get the requisite number of judicial staff overnight.
  • It is, therefore, time we gifted Justice Maraga with what he commissioned: Court-annexed mediation.

When David Maraga gave his parting speech while retiring as Chief Justice, he lamented the ever-increasing caseload in the Judiciary amid a dwindling workforce. He gave shocking statistics of the Court of Appeal, which is statutorily required to have a complement of 30 judges but has 16.

He reiterated that, due to a shortage of humanpower, the case backlog at the Court of Appeal increased from 3,681 in 2019 to 4,982 in 2020 with the case clearance rate dropping from 51 per cent to 41 per cent, which made it increasingly difficult for the Judiciary. The situation is worse in High Court Magistrates’ Courts.

Kenya might not miraculously get the requisite number of judicial staff overnight. It is, therefore, time we gifted Justice Maraga with what he commissioned: Court-annexed mediation. Deferred hearing and determination of cases not only delays justice for aggrieved parties, but also means higher legal costs.

Mediation is the facilitation of a negotiated agreement by a neutral third party who has no decision-making power.

One of the quickest and most cost-effective ways of resolving disputes that are not criminal in nature, it is the most common form of alternative dispute resolution (ADR). It is a conflict resolution process in which a neutral mediator assists the parties through constructive discussion and negotiation of their issues in order to reach a mutually acceptable resolution.

Mediation encourages open communication and problem solving. It keeps the power in the hands of the parties. The outcome of the cases ensures peaceful coexistence of neighbours and family.

Mediation keeps the focus on the common interest of the parties and their families as the only factor. This is unlike in the courts, where lawyers, who get a fee per appearance, may slow down the process to earn more.

Cruel lawyers would wish that cases continue till eternity. With modern technology, parties may be mediated virtually through conference calls or video-conferencing, reducing delays and costs brought about by distance.

High social status

The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit early on in the process. Usually, some cases end up in court because of ego that denies us the humility to agree to talk to one another.

There is also a false perception that having or affording a family lawyer is a sign of high social status and sophistication. Nothing could be farther from the truth.

The process involves planning. Before it begins, the mediator helps the parties to decide where they should meet and who should be present.

After the opening remarks, there is a joint discussion in the presence of all parties and separate sessions, or caucuses, to help the mediator understand the pertinent issues. After a consensus, a resolution is signed. The resolution from a mediator is not contestable in any court in Kenya. 

During the tenure of Justice Maraga, the Judiciary implemented court-annexed mediation within High Courts countrywide after a pilot at the Family and Commercial Divisions, at the Milimani Law Courts in Nairobi. It involves resolving cases with the assistance of a court-accredited trained mediator.

Mediation resolves most family-related disputes 85 per cent of the time. It resolves property and similar issues about 98 per cent of the time. It costs Sh20,000, irrespective of the value of the property, paid by the Judiciary.

Interestingly, save for criminal cases, you will rarely find two Asians in a court of law in Kenya. In fact, it is said all over that Asians fear courts. This is a strength disguised as a weakness.

The Muslim community, on the other hand, have Kadhi Courts to help settle disputes related to marriage, family and inheritance. Christians, what are you doing in conventional courts? Do you read the Bible?

It is advisable to settle cases that are not criminal in nature out of court before proceeding to trial. If you can get close to judgment value of the case in settlement, that should be considered a very good settlement. 

Turuthi (PhD), an educational communication and technology expert, is a certified mediator. davidgitau4@gmail.com.

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