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3. Legal Framework for ADR in Kenya
For a long time, Kenya has not had an integrated legal framework to govern the application of ADR in the resolution of disputes. The institutions undertaking ADR e.g. Chartered Institute of Arbitrators (CIArb), Dispute Resolution Centre (DRC), Family Mediation Centre (FAMEC), FIDA Kenya, Nairobi Center for International Arbitration (NCIA) and others have relied on international best practice.
More recently, a number of legal reforms have been made which have institutionalised ADR in the legal framework in Kenya. This has resulted in the growing popularity of ADR.
Article 159(2) of the Constitution of Kenya, 2010 enjoins courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other forms of ADR in settlement of disputes. This Constitutional provision forms the baseline for legal reforms undertaken in various sectors aimed at promoting ADR.
CRB Regulations, 2020 entrench ADR under Regulation 29 (2)(f) while the Rules Committee established under the Civil Procedure Act 2010, through its 2010 Civil Procedure Rules, established Court Annexed Mediation requiring courts to vet cases filed before them and refer disputants to ADR before canvassing their matters in court. If as a result, a settlement agreement is reached by the parties, the same is adopted as the judgment of the Court. If on the other hand there is no agreement reached, parties are welcomed back to court. In addition, one of the main purposes of the Consumer Protection Act Number 46 of 2012 is to provide for a consistent, accessible and efficient system of consensual resolution of disputes arising from consumer transactions.
In the same spirit, the Judiciary, in conjunction with NCIA, recently brought together stakeholders in the ADR Sector with the aim of drafting a National ADR Policy. The final Policy paper is expected before the end of the year 2020.