You are on page 1of 21

1.0.

Introduction

Alternative dispute resolution is any method of dispute settlement other than by litigation.1

It implies settling of disputes outside (a) courtroom(s).2 Abbreviated as ADR, courts may be

required to evaluate the legitimacy of ADR methods, but they will rarely overturn its decisions

and awards if the conflicting parties formed a valid contract to abide by them. The major forms of

ADR include arbitration and mediation.3

The increasing cost of legal action has made traditional lawsuits impractical for many

individuals and businesses. At the same time, criminal courts face backlogged dockets, causing

delays for (a) year(s) or more for litigants to have their cases determined.4 In response, new types

of proceedings have been developed, and they have proved to be beneficial by saving time and

money for everyone involved.5 Such proceedings include arbitration, mediation, and additional

kinds of ADR fashioned for specific cases and subject matters.6

However, arbitration almost resembles a trial, in that the parties can call witnesses, submit

proof, and argue the merits of their claim to an impartial decision maker.7 The court appoints a

well-established attorney in the locality to conduct the duties of the arbitrator. The attorney

selected acts as a judge at the arbitration proceedings, listening and keenly checking into the

1
Alyssa H. Shank, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice, 17 Ohio St. J. on Disp.
Resold. 185, 185-186 (2001). Accessed on 26th September 2016.
2
Ibid.
3
Miguel, Karuki, and F. Karuki. "ADR, Access to Justice and Development in Kenya." In Strathmore Annual Law
Conference 2014 held on 3rd & 4th July 2014 at Strathmore University Law School. 2015.
4
Kent Greenawalt, Punishment, 4 Encyclopedia of Crime and Justice 1336 (1st ed. 1983).
5
Ibid.
6
Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 Idaho B. J. 22, 22 (2003).
7
Ibid.

Page | 1
evidence before delivering a judgment. ADR as well involves mediation, in which mediators are

individuals skilled in negotiations, whose purpose is to bring conflicting parties together and

attempt to work out a settlement, or agreement that both parties accept or decline.8

Therefore, the research herein seeks to explain the place of alternative dispute resolution

in the area of criminal litigation and provide insights to its impact in solving criminal cases. Most

of the literature involving ADR contains little if any or no reference to its utility in the criminal

justice, and as a corollary, most of the criminal law literature dealing with procedure such as

conferencing do not utilise ADR system9. It is because ADR is oft defined as a method of settling

disputes between parties without taking to formal court-based adjudication10.

Traditional theories of criminal justice, however, view criminal offending as

predominantly a matter between the offender and the state. In part, the debate is a semantic one as

to whether the term ADR can be appropriately applied in a criminal litigation. However, such

debates are relevant in that they assess the conceptual bases for the development of ADR processes

and provide discussion as to whether ADR-type processes can and should be applied in a criminal

context. The thesis herein provides the background of ADR and its scope as well in the criminal

litigation spheres.

8
Mark S. Umbreit, Robert Coates, Betty Vos. Victim-Offender Mediation: Three Decades of Practice and Research,
22 Conflict Resol. Q. 279, 270-81 (2004).
9
Lawrence W. Sherman, Heather Strang, The Smith Institute, Restorative Justice: The Evidence, 8 (2007),
http://www.smith-institute.org.uk/publications/restorative_justice_the-evidence.html accessed on 26th
September 2016.
10
Carrie Menkel-Meadow, Restorative Justice: What is it and Does It Work? 3 Annu. Rev. Law Soc. Sci. 161, 168
(2007). Minnesota, Vermont, Wisconsin, Maine, New Mexico, Pennsylvania, and Montana make the most use of
victim-offender mediation programs.

Page | 2
2.0.Background of ADR in Kenyan Criminal Litigation

In Kenya, arbitration has been part of the process of settlement of disputes since long time

ago. The Arbitration Act of 1995, was done away with and replaced by the Arbitration Amendment

Act, 2009, and has now been incorporated into Chapter 49, Laws of Kenya, to offer firm guidelines

to practitioners in arbitration with only narrow appeal to the High Court as well as Court of Appeal

in relation to legal matters, and only those instances where conflicting sides concur11.

Order 46 of the Kenya Civil Procedure Rules, 2010 contemplates of arbitration, and other

alternative dispute resolution methods, on the order of a court. Rule 20 (2) of Order 46 stipulates

that the court may assume an alternative dispute resolution and shall craft such orders or grant such

instruction as may be required to assist such means of dispute resolution 12. Commercial disputes

reap largely from arbitration where the parties adopt it as their choice forum. Arbitral actions in

Kenya have, over time, begun to resemble litigation, thus losing the benefit of expedition often

related to alternative dispute resolution13. There may be need for additional debate on the degree

to which ADR can be applied in criminal cases. In the constitutions of Uganda (Art 126(2) and

Tanzania (Art 107A), there is a prerequisite in matters of a criminal character to apply and uphold

the principle of reconciliation among the persons involved in the dispute. There is a case for a

parallel approach in Kenyan criminal law, on which I anticipate debate may soon begin.

The Constitution14 provides for the right of every individual to access fair trial15 (justice)

and calls for the State to adopt appropriate policy, legislative and administrative interventions to

11
Ibid 2.
12
Ibid 2.
13
Makau, James A. "Factors influencing management of case backlog in judiciary in Kenya: a case of courts within
Meru and Tharaka Nithi counties." PhD diss., University of Nairobi, 2014.
14
The Constitution of Kenya 2010.
15
Ibid Article 25(c).

Page | 3
ensure the effectiveness of justice systems in order to guarantee access to justice for all Kenyans16.

The Constitution broadens the available mechanisms within the judicial system by encouraging

the utilization of both formal and informal justice systems17.Thus, Article 15918 acknowledges the

application of (ADR) and Traditional Dispute Resolution (TDR) mechanisms in supplementing

the court process. Article 159 (2)19 provides the basic principles for the exercise of judicial

authority in Kenya which include promotion of ADR and TDR mechanisms20.

Despite the formal recognition together with a constitutional authority for their promotion in

appropriate dispute resolution strategies, TDR techniques and other community based justice

systems are yet to be formalized by way putting in place supporting and sufficient legal and policy

actions that would ensure proper utilisation of the same in access to justice21. There is no clear

substantive policy or legislative framework to offer guidance in the promotion and application of

such techniques despite their constitutional recognition and limitations set out under Article 159(2)

and (3)22.

It is therefore against the ADR background that the research herein examines the existing

legal and policy structure on access to justice and the challenges that arise from there. It also

makes recommendations on the need for appropriate policy, statutory and administrative measures

that will ensure that the TDR strategies and other informal justice systems find their rightful place

within the conventional judicial system and that the same time are meaningfully and actively

utilized in facilitating access to justice especially for the majority poor Kenyans.

16
Kariuki, Muigua, and Francis Kariuki. "ADR, access to justice and development in Kenya." (2014).
17
Ibid 2.
18
Ibid 14.
19
Ibid 14.
20
Ibid 11.
21
Ibid 2.
22
Ibid 2.

Page | 4
3.0.Conceptual Framework of

3.1.Criminal Litigation

The criminal justice system is the avenue the society pursues to retain social control or

implement the principles of behavior necessary to protect individuals and the community23. The

structure operates while anchored on the pillars of the justice system, which begins with

discovering of the commission of a given crime, investigating, identifying and arresting suspects,

conducting preliminary inquiries to determine possible cause, and thereafter prosecution in the

courts, processing of the case in the court, delivery of judgment or conviction, sentencing and

release after serving of the sentence24. The process is always proscribed and influenced by laws

and interpretations of the law25.

Under the current law, criminal law seems to work in one of three ways: defining an

offense, or describing a general defense that stands out independent of the crime requirements to

prevent liability, or describing a policy of allegation that treats the actor as if he satisfies an offense

condition that he does not in fact satisfy26. However, one can arrange criminal law doctrines in a

different way, around the diverse functions each serves: articulating ex ante the standards of

behavior or adjudicating ex post the breach of such principles of conduct, to evaluate legal

responsibility and the extent of the liability27. For every crime that occurs, there exist at least two

victims: society suffers a breach of its laws which puts the harmony of its people in danger and the

actual victim suffers an injury to person or material goods. Therefore, criminal justice system

permits the state to carry out the prime role in the prosecution of a criminal suspect. In our system,

23
Deborah Sharpley, Criminal litigation: Practice and procedure: 2014/2015 (College of Law Publishing 2014)
24
The City Law School, Criminal litigation & sentencing (Oxford University Press 2014)
25
Ibid 16.
26
Ibid 16.
27
John M Scheb and others, Criminal law and procedure (8th edn, Wadsworth Publishing Company 2013)

Page | 5
the public prosecutor occupies the center stage and advocates for the interests and welfare of the

state in delivering justice and the actual victim of that particular crime only becomes a lone witness

for the prosecution. Restorative/recuperative justice or holistic security of the victim and witnesses

is vital for restoring the confidence of the public in the judicial system by guarding the innocent

and the victim and by punishing and deterring the offender28.

The law enforcement agencies bring law offenders to records and then present them before

the court of law, the state prosecutors then investigate into the matter in question. After adequate

investigations, the state prosecutors are supposed to present evidence incriminating the accused

before the court of law29. The jury then determines whether the evidence tabled is sufficient to or

meets the standards of proof, before convicting and eventually sentencing the offender. In criminal

litigations, the standard of proof is always beyond reasonable doubt, and the burden of proof lies

on the prosecution. The principles of evidence in criminal cases conform to the maxim that “he

who asserts must prove.”

3.2.ADR Application in Criminal Litigation

The research discusses and examines the introduction of Alternative Dispute Resolution

(ADR) in criminal proceedings, which refers to the process of conflict resolution, denotes the idea

of establishing a system justice delivery, which is friendly to the disputed parties and finding quick

resolution of the cases. For its ease the regard of this scheme is increasing daily. The justice

seekers all over the world are often harassed in the area of courts. Consequently, the system

28
Silvia Barona and others, Alternative dispute resolution in common law countries and Asia (Intersentia Uitgevers
NV 2013)
29
Ibid 17.

Page | 6
purposed to liberate them from harassment. Most of the legislations including the chief procedural

law for civil matters pursue this system. The ADR System, if possible plea bargaining, should be

developed more and included in the Code of Criminal Procedure. ADR acts as a viable alternative

for resolving disputes between the victim and the offender. This outline explores theoretical and

conceptual concerns underlying current appeals to ADR in the Criminal Justice System.

For proper administration of justice and the rule of law, some basic fundamental steps have

to be taken by the state30. As far as the depiction of pendency is concerned in the civil cases, that

can be handled by the alternatives accessible such as the ADR system. But there is some

reservation cast upon the application of ADR in criminal justice31. Referring to the criminal justice,

the term ADR incorporates a number of practices not taken as part of traditional criminal justice

system such as victim/offender conciliation; family or group conferencing; victim offender-panels;

victim assistance programs; community crime prevention programs; sentencing circles; ex-

offender assistance; community service; plea bargaining; school programs. It may as well assume

the form of cautionary and specialist courts (such as Indigenous Courts and Drug Courts)32.

CRIMINAL ADR PROGRAMS: As far as the growth of Criminal ADR actions is

concerned, it originated from earlier “informal justice” programs. There exist a number of criminal

ADR programs operating all over the globe. Some of these include:

Victim-Offender Mediation Programs (VOMP). Also, known as victim-offender reconciliation

programs (VORP) or victim reparation programs, most at times, its objective is to encourage direct

contact between victim and offender. Victims in participation are allowed an opportunity to ask

30
Sanford H. Kadish, Stephen J. Schulhofer, & Carol Steiker, Criminal Law and Its Processes 79 (8th ed. 2007).
31
Stepan, Alfred C. The state and society: Peru in comparative perspective. Princeton University Press, 2015.
32
Ibid 24, at 55-78.

Page | 7
questions, deal with the emotional trauma occasioned by the crime and its after effects, and seek

reparations33.

Community Dispute Resolution Programmed (CDRP). CDRP purposes to dispose of small

conflicts that have not been disposed of and are congesting criminal dockets34.

Victim-offender Panels (VOP). VOP came up as a result of the rise of the victims’ rights

movement in the last twenty years and in particular to the fight against drunk driving35. They often

provided the convicted drunk drivers an opportunity to realize and appreciate human cost of drunk

driving on victims and survivors. It also purposes to cut the likelihood of duplicate offenses36.

Victim Assistance Programs. VOCA37 initiated the Crime Victim’s Fund, which is supported by

all fines that are gathered from people who have been convicted and even sentenced of crimes

against the United States, save for fines collected via certain environmental statues and other fines

that are exclusively designated for given accounts, such as the Postal Service Fund38.

Community Crime Prevention Programs. The community crime prevention has incorporated a

plethora of activities, which include media anti-drug campaigns, silent observer programs, and

neighborhood dispute resolution programs39.

It is apparent that up to 90% of criminal cases in Canada are determined through the taking

of guilty pleas: many of these pleas arise as a result of successful plea negotiations between the

Crown and defense counsel. Where a plea bargain has been employed, the Crown and the accused

33
Markus D. Dubber, The Victim in American Penal Law: A Systematic Overview, 3 Buff. Crim. L. Rev. 3, 6 (1999).
34
Ibid 26.
35
Ibid 26.
36
Ibid 26.
37
Victims of Crimes Association.
38
Diane Sank and others, to be a victim: Encounters with crime and injustice (Da Capo Press 1991)
39
M L Gill, R I Mawby, and R. Mawby I. Gill, Volunteers in the criminal justice system: A comparative study of
probation, police, and victim support (Open University Press 1990)

Page | 8
efficiently settle on the nature of the charge(s) eventually put down. Since the character and

quantum of verdicts are mostly premised on the charge(s) asserted against the accused, it is

apparent that the parties to a successful plea negotiation take pleasure in the de facto authority to

exercise a substantial degree of influence over the sentence that is ultimately imposed by the trial

judge40.

Plea bargaining in the USA is very familiar; the vast majority of criminal cases in the

United States are solved by plea bargain rather than litigation41. They have also been increasing in

frequency—they rose from 84% of federal cases in 1984 to 94% by 200142. Plea bargains are

subject to the court approval, and different States and jurisdictions have different rules. The

constitutionality of plea bargaining was recognized and eventually established by Brady v. United

States,43 although the Supreme Court issued warnings that plea incentives which were sufficiently

large or coercive as to over -rule defendants’ abilities to act freely, or used in a manner giving rise

to a substantive number of innocent people pleading guilty44.

Plea bargaining may be defined as an agreement in a criminal case between the prosecution

and the defense by which the accused pleads guilty in return for an offer by the prosecution or

when the judge informally manifests intention that he will minimize the sentence should the

accused plead guilty45. It is a tool of criminal procedure which deducts enforcement costs for both

sides and allows the prosecutor to focus on more meritorious cases. It is generally viewed in these

40
Michael Naughton and Reader, The innocent and the criminal justice system: A sociological analysis of
miscarriages of justice (Palgrave Macmillan 2013)
41
Ibid 31.
42
Ibid 32.
43
397 U.S. 742 (1970).
44
Ibid 31.
45
Matthew Hale and Sir Matthew Hale, Historia placitorum coronae: The history of the pleas of the crown
(Lawbook Exchange 2004).

Page | 9
days that most of the criminal suspects are offered plea bargain because gives a chance to the

criminal to reduce his/her punishment by honestly accepting his own guilt46.

Plea bargaining takes an ambivalent position in the criminal justice system. Most observers

of the system subscribe to its practical benefits, but acknowledge that it is an imperfect method for

dispensing justice47. The academic literature is consisted majorly of attempts to provide a

theoretical justification for plea bargaining. In order to identify a loadstar for determining the

justness of plea bargaining process or results, one must be able to refer to particular premises or

expectations regarding how plea bargaining system should work. These premises change one

considers different rationales for plea bargaining. as figure out justification for plea-bargaining can

be divided into categories, first, some justification assumes that plea bargaining process will bring

about an appropriate, perhaps even an optimal, result as measured by the traditional purpose of

criminal prosecution and punishment. Some proponents of plea bargaining argue that the system

reflects the likely result of trial system, but at lower cost48.

Some criminal ADR mechanisms like Victim-Offender Mediation Programs have

successfully mediated to bring justice between crime victims and crime offenders for over two

decades49. There are now over 300 such programs in the U.S. and Canada and about 500 in Britain,

Germany, Scandinavia, Eastern Europe, Australia and New Zealand. Some statistics from part of

the North American programs reveal that about two-thirds of the cases recorded resulted in a face-

to-face mediation meeting; over 95% of the cases mediated resulted in a written restitution

agreement; over 90% of those restitution agreements are completed within one year. On the other

46
Howard Zehr, Changing Lenses: A New Focus for Crime and Justice, 178-179 (1990).
47
Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 Idaho B. J. 22, 22 (2003).
48
John Braithwaite.
49
Michael S. Moore, The Moral Worth of Retribution, in F. Schoeman, ed., Responsibility, Character and Emotions
179 (1987).

Page | 10
hand, the actual rate of payment of court-ordered restitution (nationally) is typically only from 20-

30%50.

4.0.Kenyan Criminal Litigation

In Kenya, criminal litigation is guided by rules surrounding criminal procedure. Criminal

procedure consequently affords one processes and procedures of accessing the courts of law. The

trial process depends on the Law of Evidence51. The Constitution lays the foundation upon which

criminal procedure is premised. The process begins by way of a complaint conducted via the police

process52. The person accusing through the state; is required to record statement, produce

witnesses, record witness statements, if an offence has been committed, the police make the

decision to arrest the culprit and take him to court. The sequence is as such; Complaint, arrest,

charges, plea, trial, judgment and sentence.

The sequence may however change depending on the crime and the sequence may begin with an

arrest for example example where a person grabs a purse. It is not necessary that a complaint be

launched first. Charges are provided in the Penal Code or any other legislation that establishes

criminal offences53. Basically, it provides in a clear precise language what the specific charge is.

Laid out in conformation to the various sections of statutes that have been breached. Considering

the length of time, the Police can choose based on the offence whether to grant bail the charges

50
Center for Justice and Reconciliation, Restorative Justice Online, Distinguishing Restorative Justice,
http://www.restorativejustice.org/university-classroom/04restorative%20justice%20theory/disting/. Accessed on
26th September 2016.
51
Douglas Brown, Criminal procedure in Uganda and Kenya (1970)
52
Ibid 42.
53
Ibid 42.

Page | 11
stage54. Mostly police often give bond in traffic cases. If the accused is not given bail/bond and

told to go to court, then the moment of Plea taking occurs.

Plea taking – the suspected offender goes to court and the charges as written are read to the

defendant. The charges must disclose an offence. if a crime is not disclosed the court may

discharge the accusations or a fresh complaint may be instituted in the court. if the charge carries

some weight, it is read to the accused and then given an opportunity to reply. in case of petty

offence like drunk driving and disorderly behavior the charges are read out and the defendant

pleads. In case of severe cases, if the accused person accepts being guilty the court prosecutor

should go through the file and provide an evidence of what is contained in the police file55.

Then the defendant is required to respond to the charges as read out. If they agree with the

facts as presented in the prosecution file, they are convicted on their own plea56. If the defendant

does not agree with some elements in the prosecution file or disputes some facts, the court will

then enter a plea of not guilty. The court will then weigh whether or not to provide bail. If the

court finds that bail should be provided, it is then given, and under normal situations the accused

person's right to bail should be automatic save for the prosecution's objection which does not

necessarily imply that the court should deny bail. The court lacks any idea about accused persons

before them and so the court cannot make an independent decision unless the prosecution provides

required information to the attention of the court.

The accused is presumed innocent until proven guilty57. It is the prosecution that harbors

the burden of presenting or submitting evidence to prove its case beyond reasonable doubt. During

54
Ibid 42.
55
Ibid 36.
56
Ibid 36.
57
Ibid 24.

Page | 12
the trial, the prosecution brings all their witnesses who give evidence and the accused and the court

will determine whether there is a case to answer. Evidence tendered by the prosecution should be

such evidence that it can convict the defendant. If the court finds the accused lacks a case to

answer they are discharged from the accusations under Section 21058.

The court will issue a verdict and write a judgment and there are provisions in the CPC on

what should appear in a ruling59. There is no standard structure of what a judgment should look

like but we have a structure of what the judgment must contain. It should be easily understood,

since it is how the court communicates therefore has to ensure that anyone accessing the judgment

can understand. It must contain the ruling of the court – if an accused is charged with several

counts of theft, the judgment must specify on which counts he has been held guilty and which ones

he has been found blameless. If the accused is innocent they are acquitted under Section 215 of

the Criminal Procedure Code, and where a verdict of guilty is pronounced the court demands that

the prosecution should produce records of the offender e.g. previous crimes, all valuable

information among others.

The prosecution confirms to the court and the accused is provided with the opportunity to

respond to the previous convictions. If they dispute the court has to carry out a mini trial to

establish the truth and the prosecution is usually invited to adduce evidence and the accused can

present, their case and produce witness. Once it is settled the defendant is given a chance to counter

the fresh allegations. The accused persons counsel usually counters for the accused. Under

Criminal Law Amendment Act of 2003 we have victim impact statement which states that a

primary victim (direct victim of crime) is to be permitted to address the court through a statement

58
Ibid 42.
59
R Sarre and K Earle, ‘Restorative Justice’ in R Sarre and J Tomaino (eds), Key Issues in Criminal Justice (2004)

Page | 13
describing how the offence has affected them. If you were car jacked, robbed, shot or lost a leg

one is allowed to tell the court on how they in person have been affected by the crime. Where

someone dies, their next of kin should come and provide their Impact Victim Statements. This is

usually in cases where violence or injury was occasioned60.

4.1.Application of ADR In Kenyan Criminal Litigation

Alternative Dispute Resolution is now a recognized concept in the Kenyan legal system.

Recognizing ADR as one of the major conflict resolution techniques in Kenya is thus motivating.

The status of ADR has been promoted and its applicability to a wide range of conflicts61. Under

Article 159 of the new constitution 2010, it is contemplated that alternative forms of dispute

resolution which include reconciliation, mediation, arbitration and traditional dispute resolution

mechanisms shall al be promoted as long as they do not breach the Bill of Rights and are not

repugnant to justice or inconsistence with any written law. Article 159(1) provides that judicial

authority is derived from the people and is vested in the courts and exercised by courts and

tribunals created under the constitution. In exercise of such authority, the courts and tribunals are

mandated to ensure and facilitate that justice is served to all and is not delayed and that it is

administered without undue regard to procedural technicalities62.

Traditional justice systems are as well resolution techniques. Where they have been

applied, they have been useful in managing conflicts and their declarations and resolution have

been acknowledged by the government63. This is as illustrated by the Moderate Declaration in

which members of Garissa, Madera and Wangi districts agreed to put to an end the problems of

60
S Kift, ‘Victims and Offenders: Beyond the Mediation Paradigm?’ (1996) Australian Dispute Resolution Journal 71
61
Ibid 2.
62
Ibid 11.
63
Ibid 2.

Page | 14
banditry, trafficking of arms, livestock movement, socioeconomic problems and identifying role

of peace committees among others. It is also outlined decisions made by the community around

these issues affecting the community especially unauthorized grazing, cattle rustling, arms

trafficking, control of livestock diseases and trade highway banditry, identity cards by non-

Kenyans and others64.

There may still be questions lingering about the use of alternative dispute resolution options

in resolving criminal issues, but in some countries, the courts have been called upon and willing

to encourage reconciliation between parties. However, considering the fact that crimes are against

the State or its provisions, it is important to consider the extent to which ADR can be employed.

Of course, this poses the great debate about restorative justice versus retributive justice.

The question is of some importance because the courts in Kenya recently had to deal with

such a situation. In the case of Republic vs. Mohamed Abdo Mohamed [2013] e KLR, the

family of the deceased wrote to the Director of Public Prosecutions (DPP) requesting

that the charge of murder against an accused person be withdrawn on account of a settlement

reached between the families of the accused and the deceased. The DPP, in making the application

to have the matter marked as settled, cited Article 159(1) of the Constitution which allows the

Courts and Tribunals to be guided by ADR. The court in rendering its decision stated that, in the

unique circumstances of the application, it was satisfied that the ends of justice would be met by

allowing rather than disallowing the application. The accused was discharged.

5.0.The Effectiveness of ADR Application to the Kenyan Criminal Litigation System

64
Ibid 11.

Page | 15
ADR being a new concept within the Kenyan legal jurisdiction, particularly the realm of

criminal litigation, has not gained much foothold in settling disputes. However, the recognition of

ADR mechanisms in the Kenyan constitution and the statutes such as the arbitration act has secured

it legitimacy within the legal system65. Decisions that arise out of arbitration are considered valid

and enforceable, hence can rarely be overruled. This has served to encourage many Kenyans to

resort to ADR as a means of solving their personal conflicts especially property disputes which

most at times have turned out violent leading to commission of crimes66.

ADR mechanisms have proved being flexible, cost-effective, expeditious, foster

relationships are non-coercive and result in mutually satisfying outcomes. They have thus been

more appropriate in enhancing access to justice by the poor majority in society as they are closer

to them. They have also helped in reducing backlog of cases in courts. The net benefit to the court

system has been a lower-case load as the courts’ attention has focused on more serious matters

which warrant the attention of the court and the resources of the State. The reducing case backlog

is arguably one of the indicators depicting the efficiency ADR has brought in the judiciary as a

channel of accessing proper justice.

The opportunities and challenges in the application of ADR mechanisms are explored in

the view of the need to enhance and promote access to justice, reduce on the backlog of cases and

resolve dispute expeditiously. ADR practitioners proposes some steps that in their views would

make ADR in Kenya serve the purpose it is supposed and intended to serve to wit, making access

to justice easier, lowering costs, resolving conflicts expeditiously, retaining party autonomy,

65
Ibid 2.
66
Ibid 36.

Page | 16
maintain the party’s relationships and arriving at amicable solutions that ensure co-existence

between the parties.

6.0.Conclusion

It is evident that justice via the court system is somewhat inaccessible to all due to delays

in court processes and the expenses. Therefore, the state bureaucracies compounded with the

victim’s financial situation delays or bury accessibility to justice. However, mediation in a criminal

case is faster, cheaper and more efficient compared to the court system. Mediation also preserves

the relationship between the victim and offender. In most cases, the adversarial justice systems

might instill hate towards the victim by the offender, especially in cases of wrongful conviction.

Consequently, the crime committed might recur.

Therefore, ADR offers the most efficient channel towards access of justice for all Kenyans,

including both the rich and the poor majority. It is a cheap and readily available procedure. It is

also a fast and satisfactory channel of settling disputes. Its recognition under the Kenyan

constitution and arbitration act has granted it an upper hand in enforcing its decisions. In exercise,

such authority, the courts and tribunals are to ensure that justice is accessible to all, is not delayed

and that it is administered without undue regard to procedural technicalities

7.0.Recommendations

Kenya is a multi-ethnic country with many communities having diverse cultures. The

application of ADR is mainly oriented towards resolving of disputes rather than enforcement of

criminal law. Therefore, considering the foregoing assertion, the application of ADR should be

devolved to the local units where communities apply their respective customary laws in finding

Page | 17
resolution to their conflicts. The customary rules of the various communities in Kenya should be

merged and drafted in such a manner forming the law.

Kenyans to be educated and encouraged on the importance of settling disputes out of court,

to increase their awareness of this new channel of accessing justice. Justice and morality are

however not defined in the Constitution and therefore it would be difficult to ascertain when a

mechanism is repugnant to justice and morality. Alternative and Traditional dispute resolution

mechanisms must also not be used in a way that is inconsistent with the constitution or in

contravention with any written law. If ADR mechanisms could be applied in a way that conforms

to International Human Rights standards they can play a significant part in the management of

disputes. ADR mechanisms focus on the interests and needs of the parties to the conflict as opposed

to positions, which approach is contrary to the formal common law and statutory Law practices.

These are capable of ensuring that justice is done to all by addressing the concerns of the poor

majority and vulnerable in the society through legally recognized but more effective means.

Page | 18
BIBLIOGRAPHY

1. Alfred C S. The state and society: Peru in comparative perspective. Princeton University

Press, 2015

2. Barona S and others, Alternative dispute resolution in common law countries and Asia

(Interstria Utterers NV 2013)

3. Cheb JM and others, Criminal law and procedure (8th end, Wadsworth Publishing

Company 2013)

4. 5. Dabber M D, The Victim in American Penal Law: A Systematic Overview, 3 Buff. Crim.

L. Rev. (1999)

5. Gill ML, Mauby RI, and Gill RMI, Volunteers in the criminal justice system: A

comparative study of probation, police, and victim support (Open University Press 1990)

6. Hale M and Hale SM, Historia plectrum coronae: The history of the pleas of the crown

(Lawbook Exchange 2004)

7. James M A. "Factors influencing management of case backlog in judiciary in Kenya: a

case of courts within Meru and Harika Nidhi counties." PhD diss., University of Nairobi,

2014

8. Kadesh S H and others, Criminal Law and Its Processes 79 (8th ed. 2007)

9. Karuki M and another, "ADR, Access to Justice and Development in Kenya." In

Strathmore, Annual Law Conference 2014 held on 3rd & 4th July 2014 at Strathmore

University Law School, 2015

Page | 19
10. Meadow C M, Restorative Justice: What is it and Does It Work? 3 Annul. Rev. Law Soc.

Sci. 161, 168 (2007). Minnesota, Vermont, Wisconsin, Maine, New Mexico, Pennsylvania,

and Montana make the most use of victim-offender mediation programs

11. Miguel K and another, "ADR, access to justice and development in Kenya." (2014)

12. Naughton M and Reader, The innocent and the criminal justice system: A sociological

analysis of miscarriages of justice (Palgrave Macmillan 2013)

13. Remind M E, Mediation in Criminal Justice: A Restorative Approach, 46 Idaho B. J. (2003)

14. Sank D and others, to be a victim: Encounters with crime and injustice (Da Capo Press

1991)

15. Shank A.H, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice, 17

Ohio St. J. on Disp. Resold, (2001). Accessed on 26th September 2016

16. Sharply D, Criminal litigation: Practice and procedure: 2014/2015 (College of Law

Publishing 2014)

17. Sherman L W and another, The Smith Institute, Restorative Justice: The Evidence, 8 (2007)

http://www.smith-institute.org.uk/publications/restorative_justice_the-evidence.html

accessed on 26th September 2016

18. School TCL, Criminal litigation & sentencing (Oxford University Press 2014)

19. Umbriel M S and others, Victim-Offender Mediation: Three Decades of Practice and

Research, 22 Conflict Resold. Q, (2004)

Page | 20
Page | 21

You might also like