This article features a discussion with Jacqueline Waihenya. She is a lawyer and ADR expert who has a wealth of experience. She discusses how the ADR environment in Kenya is changing.
What level of alternative dispute resolution has been traditionally practiced in Kenya before the introduction in 2016 of mediation by the Kenyan Judiciary?
ADR is formally enshrined in our Constitution in 2010 at Article 159(2) (c) which establishes a foundation for the exercise of judicial authority. This allows courts to sanction arbitration and mediation within their court system.
Arbitration was used in Kenya prior to 2009 as an alternative to litigation under the Arbitration Act of 1995 (amended) which was based in large part on the UNCITRAL Model Law. This was the most common ADR in commercial disputes and it still is. In 2012, the Civil Procedure Act introduced mediation as a practice annexed to courts. The first group of court-annexed mediators was accredited by the Judiciary only in 2016. I was accredited No.005.
In Kenyan culture, ADR is still widely used informally, mainly through mediation and negotiation, particularly at the family, religious, and community level. Prior to my court accreditation, I worked as a mediator since 2012 and also did pro bono work for FIDA Kenya. FIDA Kenya is a women’s advocacy organisation that promotes women’s right. This familiarity with the mediation process explains why it is so widely accepted and used in formal settings. The parties also value the ability to have more control over their case and a larger say.
What impact did the introduction in 2012 of the Statute Law Amendments Act No. 12 have on the growth of Kenyan ADR? What impact did the 2012 introduction of the Statute Law (Miscellaneous Amendments) Act No.
The Civil Procedure Act No. 12 of 2012 brought mediation into the civil procedure. The law defined mediation as a non-adversarial, informal process in which an impartial mediator facilitates the settlement of disputes between two or three parties. It excluded judges who were currently sitting from being mediators.
A Mediation Accreditation Committee was also created by the Act, which certifies and accredits mediators. This pool of mediators is eligible to be selected to mediate cases under the Court-Annexed Mediation Program. The pilot program began in Nairobi, the nation’s capital, but has been expanded to other stations across the country with great success.
Indirectly, this Act has also led to the creation of several specialized tribunals that have been enacted into law. Tax Appeals Tribunals, Sports Tribunals and Energy Tribunals are examples. The legislation contains strong provisions that empower Tribunals to use ADR as part of their processes. However, they have yet to be harmonised or implemented practically.
In Kenyan culture, ADR is widely used informally, primarily by negotiation and mediation. This occurs mainly at the family, community and religious levels.
Although the High Court has a supervisory function over arbitration, mediation and specialist tribunals, recent developments point to a strengthening of the doctrine that exhausts primary jurisdiction. It is commendable to see that the majority of our courts support ADR.
Do you see an increase in the demand for ADR in recent years from your clients?
formalisation institutionalisation is one of the lasting effects of recognizing ADR in the judicial system. This has been particularly beneficial for mediation and arbitrage. ADR was synonymous with arbitration in Kenya prior to 2016. It was used primarily within the commercial world for its benefits, such as confidentiality, suitability for specialized commercial needs, and speed.
Mediation was introduced in 2016 for commercial cases, as well as cases within the family division. The demand increased immediately. Most mediators began as secondary professionals in the Court-Annexed Mediation Program. In time, however, some mediators turned to mediation as a primary career.
Since then, the growth of mediation has been higher than average and many mediation firms have turned their attention to private practice. The number of arbitrators in arbitration has increased, and the Chartered Institute of Arbitrators’ ‘State of ADR research’ showed that Kenya’s growth trajectory in 2021 was reflected in their ‘State of ADR.’ These are clear indicators of an increase in the demand for ADR.
What sectors have the highest demand?
Court-Annexed Mediation is the most popular form of mediation in the family division. Its adoption rates are highest for children cases, matrimonial property and probate. Divorce mediation in Kenya is explicitly prohibited, as it is illegal to consent, condone or connive at a divorce. The commercial mediation process has also attracted claims of high value that have been settled in a fraction the time previously taken for the dispute resolution procedure. The employment and labour division is another area which has seen significant success.
Arbitration is the most popular ADR method for commercial disputes. Construction disputes are also divided, as many standard contracts provide for adjudication of construction issues prior to the appointment an arbitrator.
What is the general attitude towards ADR in Kenya?
In Kenya, the general attitude toward ADR is positive. The Chartered Institute of Arbitrators Kenya, and other institutions of like mind such as the Nairobi Centre for International Arbitration have been able to engage in a strong and decisive dispute settlement stakeholder engagement. Since the promulgation the Constitution, these organisations have been able to engage better with the judiciary led by successive chief judges as well as the Attorney Generals of the Country.
The number of arbitrators in arbitration has increased significantly
In fact, the judiciary was the first to deepen mediation. The judiciary recognises mediation and ADR as an important pillar in social transformation.
As a former member of the National Steering Committee which steered the National ADR Policy, recently approved by Kenya’s Cabinet, I am confident that the attitude of our country is positive. We can expect to see the practice of construction adjudication and mediation, arbitration and arbitration further streamline and enhanced.
What are the most common models of mediation?
Kenyan law favors the traditional facilitative model of mediation, as can be seen from the definition adopted in Act No.12 2012. This model is used by all mediator training institutions. Where mediators deviate from it in resolving disputes, this has been the basis of challenges in court. Evaluative mediation, therefore, is discouraged. Personal, I prefer transformative mediation when possible as it lends itself to a long-term solution. The time constraints of most mediations I’ve handled have required a facilitative style.
What are you doing and what other practitioners doing to spread ADR across the country?
I was Vice Chairperson of Chartered Institute of Arbitrators Kenya Branch and chaired a Taskforce that brought together the mediating communities in our first CIARB Mediation Conference, which will be held in October 2022. The theme of the conference is ‘The Coming of Age of Mediation: An Encounter with Africa’. Over 200 delegates attended, along with speakers, representatives from the Kenyan judiciary and academics, CIARB and NCIA, as well as mediating institutions, individuals and organisations from Kenya, Uganda Rwanda Tanzania and the UK. Law Society of Kenya, East Africa Law Society and other institutions were present. The event provided an opportunity to exchange experiences and discuss new issues.
What was it about you personally that made you decide to specialize in ADR as part of your legal practice.
I was first introduced to arbitration as a pupil from the perspective of a lawyer. As they say, you tend to follow the example of your pupil master. It took me a good decade of experience to finally take the plunge into formal arbitration, mediation and construction adjudication. Most ADR practitioners will admit that the initial immersion in ADR was a breath of fresh air. It took a lot of determination to undo the mistakes that litigators tend to make in adversarial practice. The journey was one of self reflection, compounded by all the different responses I received depending on the type ADR.
Today, I am a Chartered Arbitrator and Chartered Mediator. (ICMC), as well as a Certified Advanced Construction Adjudicator. (CIARB), living the dream of multi-door dispute settlement. I completed practical training at Kings College London, and in Kenya. I am currently completing a second LLM in International Dispute Resolution. As a neutral, I have been able to resolve disputes of varying natures.
As I consider that every dispute is best resolved by a particular dispute resolution method, I have taken the time to continually increase my knowledge of arbitration, mediation, and construction adjudication. So, I am equipped with the tools necessary to use the most appropriate dispute resolution method for the dispute at hand. I have been on a journey that has led me to the International Mediation Institute, where I am a certified mediator. I was also one of the first FIFA accredited mediators.
I’ve had the opportunity to see first-hand how ADR works, and I continue to arbitrate and mediate. I have had the opportunity to do scholarly work in the areas of construction adjudication, arbitration and mediation by writing articles and organizing and addressing workshops and conferences on these topics.
Jacqueline Waihenya, Managing Partner
Moi Avenue, Jubilee Arcade – Office Suite No.13 – Third Floor, Mombasa Kenya
Jacqueline Waihenya, is an advocate of Kenya’s High Court and managing partner of JWM Law LLP. Jacqueline Waihenya is a Chartered Arbitrator of Chartered Institute of Arbitrators and a Legal Professional of International Federation of Consulting Engineers FIDIC. She is also a member of Dispute Resolution Board Foundation. She is a member both of the Adjudication Society in London and its Women in Adjudication Branch.
JWM Law LLPis a Kenyan full-service corporate law firm. The staff of the firm handle a variety of legal issues, including litigation, alternative dispute settlement, corporate governance, and other legal matters. The firm has also developed a keen sense of events and trends, and a strategy for their direction and dynamics.