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STAKEHOLDERS FORUM ON COURT ANNEXED MEDIATION (PILOT PROJECT)

HILTON HOTEL, 1ST APRIL 2016.
“Let us never negotiate out of fear but let us also never fear to negotiate”
John F. Kennedy, inaugural address, 20/1/1961

On the 1st April 2016, the Judiciary of Kenya in collaboration with its training department, the
Judicial Training Institute (JTI) held a half day sensitization forum for stakeholders on the court
annexed mediation pilot project at the Hilton Hotel in Nairobi. Several topics were discussed at
the workshop including the operationalisation of the pilot project, case flow management, case
screening, accreditation of mediators, and the mediation (pilot project) rules 2015.

A number of members of the Chartered Institute of Arbitrators were present at the forum.
Among these were, Dr. Kariuki Muigua, FCIArb, PhD, former Chairperson of the Institute,
several Branch Committee Members including Mr. Maimba Powell, Mrs. Njeri Kariuki and Mr.
Samuel Nderitu. Others included Madam Njeri Wanyoike, also a Commissioner with the
National Cohesion and Integration Commission, Dr. Laibuta Kibaya I., Madam Oyuyo Jacqueline
Githinji, Mr Andrew Waruhiu, Mr.Gichinga Ndirangu and Eunice Lumallas.
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Mrs. Njeri Kariuki, faculty member of the Chartered institute of Arbitrators, was invited to share
a practitioner’s perspective on mediation. She commenced her presentation by acknowledging
that she is a member of the Chartered Institute of Arbitrators (Kenya), a pre-eminent Institute
that offers world class training on Alternative Dispute Resolution (hereafter referred to as ADR)
and that had for over thirty (30) years been at the fore front of championing alternative dispute
resolution in Kenya. She appreciated the Court of Appeal Judge, Alnashir Visram and Principal
Judge, Justice Richard Mwongo Mururu for their stewardship in championing the Court
Annexed mediation project and in ensuring that the Judiciary evolves to embrace ADR.

Mrs. Kariuki further acknowledged the pivotal role played by the late Hon. Mutula Kilonzo, MP,
when he was the Justice Minister and the former Attorney General, Sen. Amos Wako who
collaborated with the Chartered Institute of Arbitrator’s to ensure that Alternative Dispute
Resolution is acknowledged and entrenched in the constitution at art. 159. She believed that it
was not by coincidence that the team steering ADR was realizing success with the project and
attributed the milestone in realizing court annexed mediation to a team that had a foundation
and fidelity to ADR, particularly acknowledging their affiliation to the Chartered Institute of
Arbitrators. She explained that in her sixteen (16) years of ADR experience, she found that it
would be most useful to intensify the raising of awareness to the general public on the
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wonderful benefits of ADR. She acknowledged Mrs. Joy Mbabu as the “mother of mediation in
Kenya” and as one of her formative teachers in mediation.

Mrs. Kariuki hailed mediation as being an ingenious and empowering method of resolving
disputes which opened up possibilities for unexpected and innovative resolutions. She shared
the experience of a mediation in which an acrimonious insurance matter was ultimately settled
by mediation through the tendering of an apology and the re-routing of the vehicle that had
caused one widow’s husband’s death to avoid her seeing it all the time; seeing the vehicle,
triggered, to the widow, the memories of her husband’s death.

Mrs. Kariuki expressed optimism for the project and assured all present of the support of the
Chartered Institute of Arbitrators, on behalf of its chairperson, Mr. Kihara Muruthi, who due to
official prior engagements was unable to attend the workshop.

Dr. Kariuki Muigua, the former Chairperson of the Institute assured the participants that
mediation was workable and clarified it could comfortably be applied to matters of intellectual
property as well as those of child custody. He further assured the Judiciary through the
Presiding Judge, Hon. Justice Richard Mwongo and Chairperson of the forum, Hon. Justice
Frederick Ochieng, that he, as he hoped many other mediators, were committed to supporting
the court annexed mediation project to ensure its success. He emphasized that money ought
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not to be the immediate focus and priority for accredited mediators, but that rather, they ought
to be committed to ensuring the success of the pilot project through their professional service.
He called upon mediators to be ready to render their services for free. Justice Fred Ochieng had
informed the forum that during the pilot project mediators will be paid a maximum of Kshs.
20,000/-for each mediation matter handled irrespective underlying case considerations
including complexity.

Mr. Powell Maimba, a branch Committee member of the Chartered Institute of Arbitrators
urged the mediation Accreditation Committee and the participants to pay attention to the “soft
ware” of individual mediators as opposed to only; to him, while the hardware dealt with paper
qualifications and experience, soft ware had everything to do with requisite temperament,
demeanor, personality and interpersonal skills of to be meditors; to Mr. Maimba, a lack of
emphasis of these traits and skills would potentially open the process to reputational risks and
unnecessary setbacks.

The pilot project commenced on 4th of April 2015 and is intended to cover all new commercial
and family matters that would be successfully screened by the designated ADR Registrar’s as fit
for mediation. The cases will be filed normally and the requisite court fees paid, however,
parties will pay no fees to the mediators. Further, it was expected as per rule 7 of the mediation
(pilot project) rules 2015, that no mediation proceeding will take longer than 70 days, with each
being concluded within 60 days and a potential extension of 10 days.

Lumallas Eunice