Article 159 of the Constitution of Kenya compels the Judiciary, in exercising its authority, to promote alternative dispute resolution (ADR), including conciliation, mediation, arbitration and other traditional dispute resolution mechanisms. This is meant to ensure that as many Kenyans as possible have access to justice and that cases do not drag in courts longer than it is necessary. It will also ensure that the backlog of cases is drastically reduced. Further, ADR fastens the resolution of disputes for communities that have to travel for long distances to access judicial services. It should be noted that litigation has always been untenable in dispute resolution and has tended to clog the formal court systems.
The Court system in Kenya consists of five superior courts and four subordinate courts. The superior courts are the Supreme Court, Court of Appeals, High Court, Industrial Court, Environment and Land Court, while the subordinate courts are Magistrate Courts, Courts Martial, Kadhi Court and the Small Claims Court (gazetted in 2021). According to the Magistrates Act No. 26 of 2015, magistrate’s courts can exercise jurisdiction and powers in proceedings of a criminal nature as may be conferred on it by the Criminal Procedure Code (Cap. 75) or any other written law, while the High Court has jurisdiction to hear all criminal and civil cases and appeals from the lower courts. Majority of cases in Kenya are filed and dispensed at the Magistrate Courts and the High Courts as shown in Table 1 below.
Table 1: Cases files, disposed of and pending by various Courts (2014/2015 to 2020/2021)
| Year | Status of Cases | Kadhis Court | Magistrate Courts | High Court | Employment and Labor Relations Court | Environment and Land Court | Court of Appeal | Supreme Court | Totals |
| 2014/15 | Filed | 1,904 | 308,602 | 38,817 | 3,436 | 5,551 | 1,575 | 61 | 359,946 |
| Disposed of | 3,750 | 451,134 | 71,220 | 1,129 | 2,156 | 2,845 | 47 | 532,281 | |
| Pending | 968 | 305,216 | 125,813 | 9,042 | 19,043 | 3,017 | 53 | 892,227 | |
| 2015/16 | Filed | 3,735 | 404,158 | 41,999 | 6,159 | 5,329 | 1,374 | 38 | 462,792 |
| Disposed of | 1,447 | 376,360 | 39,854 | 3,892 | 3,497 | 1,530 | 23 | 426,603 | |
| Pending | 3,256 | 333,014 | 127,958 | 11,309 | 20,875 | 2,861 | 68 | 889,395 | |
| 2016/17 | Filed | 5,504 | 300,655 | 20,553 | 6,082 | 9,770 | 1,578 | 38 | 344,180 |
| Disposed of | 4,833 | 260,319 | 27,987 | 3,668 | 6,307 | 1,052 | 16 | 304,182 | |
| Pending | 3,015 | 366,133 | 118,777 | 13,723 | 27,242 | 3,387 | 73 | 648,362 | |
| 2017/18 | Filed | 7,556 | 356,085 | 25,049 | 5,645 | 5,834 | 2,013 | 61 | 402,243 |
| Disposed of | 6,662 | 313,362 | 37,682 | 3,661 | 7,887 | 1,195 | 39 | 370,488 | |
| Pending | 3,816 | 402,639 | 98,688 | 15,733 | 24,380 | 4,205 | 95 | 772,731 | |
| 2018/19 | Filed | 8,439 | 435,413 | 30,695 | 2,672 | 4,494 | 2,540 | 96 | 484,349 |
| Disposed of | 6,250 | 413,332 | 36,998 | 4,228 | 7,162 | 1,300 | 89 | 469,359 | |
| Pending | 5,871 | 436,522 | 88,548 | 14,460 | 18,254 | 6,052 | 93 | 953,708 | |
| 2019/2020 | Filed | 7,207 | 298,838 | 23,602 | 2,015 | 3,156 | 2,620 | 72 | 337,510 |
| Disposed off | 5,261 | 251,496 | 22,735 | 3,568 | 5,518 | 1,074 | 76 | 289,728 | |
| Pending | 6,338 | 455,256 | 88,891 | 13,556 | 15,297 | 7,525 | 89 | 627,238 | |
| 2020/2021 | Filed | 8,954 | 310,470 | 26,224 | 2,918 | 4,856 | 2,505 | 47 | 355,974 |
| Disposed of | 7,230 | 253,272 | 24,214 | 2,434 | 5,748 | 1,240 | 62 | 294,200 | |
| Pending | 8,062 | 512,454 | 90,901 | 14,040 | 14,405 | 8,790 | 74 | 650,174 |
Source: KNBS (Various)
In 2014/2015, the number of filed cases was 359,946, which rose to 462,792 cases in 2015/2016. In 2016/2017, the number of filed cases dropped to 344,180, increasing again to 402,243 cases in 2017/2018 and 484,349 cases in 2018/2019. In 2019/2020, the number of cases filed in courts was 337,510, which rose to 355,974 in 2020/2021.
The number of disposed of cases in 2014/2015 was 532,281. In 2015/2016, 426,603 cases were disposed of, 304,182 cases disposed of in 2016/2017, 370,488 cases in 2017/2018, 469,359 cases disposed of in 2018/2019, 289,728 cases in 2019/2020 and 294,200 cases disposed of in 2020/2021.
The number of pending cases in 2014/2015 financial year was 892,227 cases, 889,395 cases in 2015/2016, 648,362 cases in 2016/2017, 772,731 cases in 2017/2018 financial year, 953,708 cases in 2018/2019, 627,238 cases in 2019/2020 and 650,174 cases in 2020/2021.
The Judiciary is of the view that the number of pending cases is expected to keep increasing in line with the increase in population, economic activities, an informed citizenry and confidence in judicial processes. However, some institutional issues that hamper courts from effectively hearing cases and other occurrences beyond the control of courts also contribute to this increase in backlog of cases. For example, when lawyers ask courts to adjourn cases, there is very little courts can do but to grant them new hearing dates. Inadequate human capital is also another challenge. Necessary infrastructure (both physical and technological) ought to be addressed for cases to be disposed off effectively. Hiring of more staff and construction of new courts are beyond the control of the Judiciary. Budgetary cuts due to other competing national interests have hampered the efforts for the past few years. However, the backlog of cases is a global concern in most countries and, therefore, not just a Kenyan challenge[1].
Table 2: Convicted prisoners by type of offence and sex (201-2021)
| Categories of Prisoners | 2017 | 2018 | 2019 | 2020 | 2021 | |||||
| Male | Female | Male | Female | Male | Female | Male | Female | Male | Female | |
| Sentenced to | 18,758 | 1,531 | 16,365 | 1,657 | 16,400 | 1,643 | 3,563 | 522 | 12,579 | 1,198 |
| Less than 1 month | ||||||||||
| 1 month to 2 years | 43,218 | 5,796 | 48,299 | 7,865 | 42,712 | 7,627 | 17,254 | 2,854 | 37,171 | 6,885 |
| 2 years or more | 8,547 | 561 | 7,852 | 492 | 7,797 | 538 | 4,642 | 321 | 6,881 | 403 |
| Life imprisonment | 1,108 | 74 | 973 | 8 | 507 | 4 | 128 | 2 | 268 | 5 |
| Death Sentence | 769 | 42 | 379 | 6 | 114 | 5 | 20 | 0 | 72 | 1 |
| Total Convicted Prisoners | 72,400 | 8,004 | 73,868 | 10,028 | 67,530 | 9,817 | 25,607 | 3,699 | 56,971 | 8,492 |
| Committed for civil debt | 326 | 113 | 497 | 103 | 503 | 145 | 178 | 22 | 307 | 115 |
| Committed to remand | 117,203 | 10,122 | 127,834 | 11,388 | 129,049 | 12,251 | 52,446 | 4,167 | 87,824 | 6,412 |
| Total Unconvicted Prisoners | 117,529 | 10,235 | 128,331 | 11,491 | 129,552 | 12,396 | 52,624 | 4,189 | 88,131 | 6,527 |
| Total Persons committed to Prisons | 189,929 | 18,239 | 202,199 | 21,519 | 197,082 | 22,213 | 78,231 | 7,888 | 145,102 | 14,919 |
| Previously Convicted | 16,371 | 1,453 | 15,826 | 1,161 | 16,484 | 2,265 | 7,780 | 391 | 9876 | 645 |
| Deaths (Excluding Executions) | 166 | 10 | 108 | 11 | 80 | 3 | 72 | 6 | 105 | 8 |
Source: KNBS (2022), https://www.knbs.or.ke/download/economic-survey-2022/?wpdmdl=6619&refresh=6284e1c34ea7e1652875715
The total prison population increased from 86,119 in 2020 to 160,021 in 2021. The number of convicted prisoners more than doubled from 29,306 in 2020
to 65,463 in 2021 while un-convicted prisoners increased by 66.6% to 94,658 during the same period. Liquor-related offences accounted for the highest convicted prisoners across the five-year period.
Majority of offenders convicted were male whereas majority of the female offenders convicted related to liquor offences. This is because women are often convicted of brewing and selling illegal alcoholic drinks such as chang’aa. Also alarming is the number of unconvicted offenders who languish in jail for various reasons ranging from lack of capacity to raise bail and denial of bail by courts due to various reasons.
According to the Kenyan Penal Code, offences can be categorized as either felonies or misdemeanors. Felonies attract custodial sentences while misdemeanors can attract short-term custodial sentences or non-custodial sentences.
Liquor related offences, order and administration of lawful authority offences and offences related to property form the bulk of petty offences as they include drunkenness, disorderliness, nuisance and jaywalking. Petty offences, often called misdemeanors, are considered lesser criminal acts and attract less severe punishment. These should be handled at community level through restorative justice mechanisms to ensure that offenders are rehabilitated back into their communities without depriving the offenders off their right to continue to participate in economic activities. These are not serious offences that should attract a custodial sentence; rather, such individuals need to be given a non-custodial sentence since most are still productive in their communities.
Clogged judicial systems due to the high number of cases, most being from petty offenders, makes those seeking justice wait for many years to have their case decided by a court. The delay in justice makes it difficult for the wheels of justice to be seen by communities to be working.
The international covenant on Civil and Political Rights (Article 14) and regional
human rights treaties specify that cases must be disposed by courts “without undue delay” or “within a reasonable time”[2]. The Chief Justice of Kenya, Justice Martha Koome, has assured stakeholders that cases at the high court will not be taking more than three years to be disposed-off, whereas Courts of Appeal will take one year to arrive at a judgement[3].
Alternative dispute resolution is the best remedy to complement formal judicial processes. The National Assembly and the Office of the Attorney General should partner and enact legislation that will specify what kind of cases to be handled under communal-led alternative dispute resolution mechanisms. Moreover, the Constitution of Kenya provides for the use of alternative forms of dispute resolution mechanisms to enhance delivery of justice to all citizens. Article 48 of the Constitution of Kenya compels the State to ensure that there is access to justice for all persons and, if there is a fee to be paid, it should be reasonable and shall not impede access to justice. The Judiciary is in the process of institutionalizing ADR in solving disputes at all levels of court processes. The Judiciary has operationalized a framework targeting Children’s Courts, Chief Magistrate’s Commercial Courts, Environment and Land Courts, Employment and Labour Relations Courts and the Civil Division of the High Court to reduce a backlog of cases. Every year, the Judiciary runs a mediation settlement week to help dispose of cases without the usual litigation process. This has seen the setting up of the Mediation Accreditation Committee (MAC); a committee under section 59A of the Civil Procedure Act (Chapter 21, Laws of Kenya). The committee is tasked with maintaining a register of qualified mediators to assist the Judiciary in court annexed mediation. Currently, the process of accreditation is open and ongoing. Qualified and interested mediators are being registered.
Mediation remains the most effective form of ADR in resolving disputes involving more than one party through a third party who facilitates the warring parties to arrive at a resolution that they jointly own. ADR is cost effective since it helps warring parties arrive at a solution to their disputes quickly and is cost effective. There is no litigation as is the case in formal courts. Courts need to consider having petty offenders serve non-custodial sentences, since custodial sentences harden them and also negatively impact on the livelihoods of the offenders. This will reduce the number of petty offenders being sentenced to serve custodial sentences.
Arbitration is a second form of ADR where dispute resolution is done at the agreement of the parties. Courts only intervene to ensure that both parties abode by the agreement they have voluntarily entered into. Disputes are taken to arbitration with the consent of the parties. The arbitrator acts as a neutral person in helping the parties arrive at a consensus in the dispute resolution. The arbitrator ought to be a person with arbitration skills. Arbitration in Kenya is guided by the Arbitration Act and arbitration is mainly administered by the Nairobi Centre for International Arbitration established by the Nairobi Centre for International Arbitration, 2013. Expanding arbitration to cater for petty offences beyond commercial disputes is therefore possible given the presence of legal and institutional frameworks.
Negotiation is a voluntary process where the parties in a dispute sit down, identify the issues to their dispute and try to work it out. This method is commonly used among Kenyans in resolving disputes such as minor accidents. It requires that parties be good communicators; however, the challenge is that there could be one dominant party to the dispute who may sway the decision in his/her own favour. Courts may give directions that minor disputes and civil cases be resolved under court-directed negotiation.
Many disputes in Kenya are resolved at the community level through community elders and other groups mandated to maintain order within communities. The major shortcoming with this kind of arrangement is the perception that grave cases that are repugnant to justice (such as rape, defilement, murder, assault and grievous body harm) end up being swept under the ADR carpet under the pretext of community conflict resolution mechanism.
Therefore, there is need to develop a framework through ADR and use resolution mechanisms such as negotiation, mediation and conciliation to ensure that the root causes of the disputes are addressed and assist the parties to explore mutually satisfying and durable solutions. Article 159 of the Constitution of Kenya compels the Judiciary to promote other forms of Alternative dispute resolution in justice delivery[4]. This is in line with the transformation framework of the Judiciary and will go a long way in clearing case backlogs in the court system. ADR, therefore, is supposed to make access to justice easier by lowering costs associated with access to justice, expeditiously resolving conflicts and ensuring that warring parties not only arrive at amicable solution to their disputes but also maintain relationships. This would make justice in Kenya to be restorative and reduce the number of minor offenders being slapped with custodial sentences.
[1] https://why-me.org/2020/what-can-we-do-about-the-international-backlog-of-court-cases/
[2] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
[3] https://icj-kenya.org/news/court-cases-will-not-last-more-than-three-years-in-high-court-and-a-year-in-an-appellate-court-cj-koome-says/.
[4] Article 159 (2) (c) of the Constitution of Kenya 2010, Government Printer, Nairobi.
Author: Dr Douglas Kivoi
Principal Policy Analyst, Governance Department
