Why ‘let us meet in court’ isn’t always the best option
Milimani Law Courts in Nairobi. Data from the Judiciary demonstrates that we are far from addressing the case backlog and delayed justice.
What you need to know:
“The notion that most people want black-robed judges, well-dressed lawyers, and fine panelled courtrooms as the setting to resolve their dispute is not correct. People with problems, just like people with pains, want relief, and they want it as quickly and inexpensively as possible” — Warren E. Burger, former CJ, United States Supreme Court.
I reflected upon this quote this week while conversing with one bank CEO on how his bank has embraced alternative dispute resolution as a way of settling differences with customers.
He told me that when the bank settles a dispute with a customer or supplier through mediation, the customer maintains the account with the bank.
He shared an experience where a dispute had been in court for over five years involving substantial sums of money between the bank and a customer and at the bank’s suggestion and with the customer’s consent, the case was referred to mediation. This case was resolved within 60 minutes of the bank representative and the customer having a session with the mediator.
In the past, whether it is a hustler, small or medium business enterprise or an established corporate entity getting entangled in a dispute with another person, the natural and logical option has always been “let us meet in court”, kicking off the endurance of an extremely lengthy and expensive court procedure. The number of commercial, employment and administrative disputes waiting for the court’s determination are in hundreds of thousands, with values running into billions, all withheld from the economy.
The recruitment of an additional 20 judges to the High Court is a welcome relief towards addressing the age-long challenge of case backlogs that was made worse by the Covid-19 pandemic. Our courts handle commercial, employment, criminal, constitutional and family matters among others.
To transform our economy and the country, we must disrupt the way we resolve conflicts, especially business disputes where capital is withheld. To achieve expeditious conflict resolution in a cost-effective manner and restore business relations, mediation provides the best alternative. The four basic principles of mediation are: voluntarism, confidentiality, equality, and neutrality.
The Judiciary in the State of the Judiciary and the Administration of Justice Annual Report 2021–2022 indicates that for the 12 months period between July 2021 and June 2022, a total of 404,312 court cases were filed across the country; 257,205 were criminal, and 147,107 cases were civil.
In the same period, 381,317 cases were resolved by the courts comprising 231,415 criminal and 149,902 civil cases. However, as of June 2022, a total of 678,697 cases were cumulatively pending before Courts for determination comprising of 294,278 criminal and 384,419 civil matters.
This data from the Judiciary demonstrates that we are far from addressing the case backlog and delayed justice challenge in our courts. For individuals and businesses to thrive, something must change.
Dr Habil Olaka is the Chief Executive Officer of Kenya Bankers Association
