By Paul Musyimi
The Rules Committee has made drastic proposals for constitutional and statutory amendments aimed at introducing case management and alternative dispute resolution in Kenya. The proposals for amendments, which affect section 77 of the Constitution, Civil Procedure Act, civil procedure rules and court of appeal rules, have now been compiled pending discussion by stakeholders.
The amendments aspire to facilitate 'just, expeditious and proportionate resolution of civil disputes'. This is proposed to be achieved by placing a constitutional duty on the courts and other adjudicating authorities to give cases fair hearing within reasonable time and to ensure that substantive justice always prevail over procedural justice.
In this article, I will focus on the portions of the amendments that cater for case management and court-annexed ADR with emphasis on mediation.
The proposed amendments to the constitution
The current section 77 (9) of the Constitution is proposed to be renamed as 77(9) (a) and 77(9)(b) and reworded so that 77(9)(a) incorporates the objective of civil procedure in Kenya as to facilitate fair hearing and give due regard to substantive justice as opposed to procedural technicalities.
The proposed section 77 (9) (b) of the Constitution enjoins courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other alternative dispute resolution methods in settlement of disputes.
An additional section 77(16) is proposed to provide constitutional basis for case management in civil and criminal matters. If passed into law, this subsection will compel courts and other adjudicating authorities to establish, implement and enforce a case management system both in criminal and civil case. This will help reduce unnecessary costs and delay and facilitate early and fair settlement. The overall aim is bring all court proceedings in Kenya to an expeditious and just determination.
Proposed Amendments to the Civil Procedure Act
The Civil Procedure Act is proposed to be amended by introducing section 1A to provide facilitation of just, expeditious and proportionate resolution of civil disputes in Kenya as the overriding objective of the Act. In effect, the court, the parties and their legal representatives are obliged to give effect to this object. Advocates and their clients are to aid in achieving this objective at pain of costs for non-compliance.
In furthering the overriding objective, a new section 1B of the Civil Procedure Code is proposed to incorporate case management. The aim is to, inter alia, achieve just determination of court proceedings, efficient disposal of cases, efficient use of judicial and administrative resources, reduction of costs of litigation and use of technology.
In order to introduce ADR, amendments have been proposed to the definition section and section 59 of the Civil Procedure Act. To be specific, amendments have been proposed on section 59 of the Civil Procedure Act by introducing four new sections that cater for reference to mediation, other dispute resolution methods.
The proposed section 59A requires reference of all suitable suits to mediation to be conducted in accordance with the proposed mediation rules annexed to the amendments. Section 59D gives the courts power to enforce private mediation agreements as long as they are in writing and facilitated by qualified mediators upon registration in the court registry.
An accreditation committee for approving mediators to be listed with the Mediation Registrar for undertaking mediation under the Act is to be established under the proposed section 59B. Such accreditation committee is to have the responsibility of supervising the regulation, training, certification, accreditation and disciplining of mediators listed with mediation registrar.
In addition, courts are given powers under section 59C, subject to agreement by parties, to refer suits before it to any other method of dispute resolution. Such referral and the method thereof is proposed to be governed by the procedure agreed to by the parties and/or as ordered by the court. In essence, this provision gives courts and parties the discretion to utilize ADR methods in expediting dispute resolution.
Case Management under the Proposed Amendments
The proposed Order 3 under the amendments proposes to introduce case tracking system by requiring Plaintiff, while instituting the suit, to indicate the choice track for the case. The amendments establish the following three track systems, namely "small claims", "fast track" or "multi-track".
Small claims are defined under the proposed amendments to refer to simple claims, involving not more than two parties and whose monetary value does not exceed Kshs. 50,000/-. The Fast Track denotes cases with straight forward facts and legal issues, relatively few parties and those which would likely be concluded within 180 days. The Multi-Tract is used to refer to cases with complex facts and legal issues or several parties and which would likely be concluded within 240 days.
In choosing the ideal track, the plaintiff is to have due regard to such considerations as, inter alia, complexity of the issues involved, the financial value of the claim, the likely expense to the parties and the importance of the issues of law and fact to the public. In addition, the plaintiff needs to consider the nature of remedy sought, number of parties and/or prospective parties involved in the suit and the time required for preparation for trial and hearing.
Where the plaintiff classes the suit under fast track and multi-track suits s/he is enjoined to file, in addition to the plaint, a verifying affidavit, a list of witnesses to be called at the trial, written statement on oath of the witnesses and copies of documents to be relied on at the trial including a demand letter.
Similarly, the defendant is also required ensure a defense to such suit is accompanied by a verifying affidavit, a list of witnesses, written statements on oath of witnesses and copies of documents to be relied on at the trial. These accompanying documents are to be used in case management. The time for filling reply to defense is proposed to be extended from the current 7 days to 14 days as proposed by stakeholders.
Elaborate Pre-Trial Procedures
The proposed amendments also make provisions for pre-trial procedures. Thus, 10 days after the close of pleadings, parties are required to complete, file and serve the pre-trial questionnaire which is provided in an Appendix to the amendments. Further, within 30 days of close of proceedings, the court is to convene case conference to, inter alia, identify contested and uncontested issues, explore methods of resolving the contested issues, secure parties' agreement on schedule of events of proceedings, create a timetable for the proceedings as well as narrow or resolve outstanding issues. On conclusion of the Case Conference, the court is required to issue a case conference order.
In order to create opportunity for settlement, the proposed amendments provide that courts, within 60 in case of fast tract case and 90 days in case of multi-track case, convene a Settlement Conference. The purpose of the settlement conference is to consider the settlement of the case and/or issues in the case and provide the parties an opportunity to settle and/or narrow down the issues in the case. In that connection, the parties are required to prepare and exchange a settlement conference brief outlining, in summary form, the facts of the case, summary of issues and law relied upon by each party, final list of witnesses and summary of their witness statements and expert reports and relevant excerpts of documents relied upon.
If parties fail to reach a settlement, a trial conference is convened within at least 30 days of the hearing date. The parties are also required, at least 10 days to the day scheduled for the trial conference to complete, file and exchange trial conference questionnaire.
The purpose of the trial conference is to plan the trial, explore expeditious ways of introducing evidence and defining issues and to consider the necessity of amending pleadings. Trial conference also offers an opportunity to court to make orders relating to expert evidence, receiving evidence by exhibit, making referral orders for ADR and ordering examination of witnesses by issue of commission outside court and/or allowing use of affidavit evidence. At the conclusion of trial conference, the parties and their advocates are to sign a memorandum setting out the results of the conference.
The proposed Amendments on Court-Annexed Mediation
The procedural aspects of the proposed court-annexed mediation are outlined in the proposed new order 45A whose aim is to incorporate mediation in the Civil Procedure in Kenya. The new order provides for the Mediation rules according to which any reference by the court to mediation is to be conducted.
Order 45 anticipates court-mandated mediation only after the filling of the suit and close of pleadings. The court is to hold a scheduling conference within 21 days of close of pleadings to give parties directions on referral to mediation. In such conference, the court has discretion to order that that it will conduct the mediation itself or refer the suit to the Meditation Registrar for allocation of a mediator.
The office of mediation Registrar has been created under the rules. S/he is supposed hold a scheduling conference within 30 days of reference for purpose of referring the case to mediation. At the conference, the parties are to appoint their mediator from the list of qualified mediators kept by the Registrar either by agreement of the parties failing which the registrar shall assign them one.
Upon appointment, the mediator is obligated to convene the first session within 14 days of the referral order. The mediation must take place within three (3) months after referral order subject to extension by the court. Whether or not an extension is granted depends on the complexity of the matter, number of the parties involved. A consent of the parties to the extension must first be filed in court.
In interest of time, the mediator is obliged to fix a mediation hearing as soon as possible and serve every party with a notice indicating the venue, time and date of the mediation session. The notice, which is also to be filed with the court, must indicate that attendance of the parties to the first mediation session is mandatory. Subsequent to such notice, the parties are to provide the mediator, within at least seven days of the hearing, with a copy of statement identifying the factual and legal issues in dispute and their position and interests and attach statement of documents in support of the case.
Before commencement of the mediation, the mediator is to explain to the parties his/her role. After conclusion of the mediation, and within ten days thereof, the mediator should publish a report of the mediation stating whether or not the parties reached or failed to reach a settlement. Where the parties reach a settlement, it must be filed within ten days of conclusion of the mediation. If the agreement settles the suit, the mediator is obliged to file a notice to the effect. Subsequently, the court shall enter judgment in terms of the judgment.
Appeal against judgment pursuant to mediated agreements is forbidden under the amendments. Where no agreement is reached, the suit is to be set down for hearing. However, the court may order further mediation, with directions where necessary if parties consent to a further reference.
The amendments propose that communications and records in mediation be confidential and without prejudice. Further, it is proposed that matters discussed at mediation hearing be absolutely privileged to rule out its adduction in any legal proceeding as admissible evidence. In addition, the mediator and participants in the mediation may not be summoned, compelled or required to testify or produce records or notes relating to the mediation before any court of law.
Applications to enforce mediation agreements are required to be filed and served to the opposite party within seven days thereof. If no opposition is lodged within seven days of service, the agreement is to proceed to be registered as judgment of the court. If the application is opposed, the hearing thereof is to be concluded within a maximum of three weeks.
Conclusion
There is no doubt that if ever these amendments find their way into statutes books, civil litigation and disputes resolution in Kenya shall never be the same again. In any case, case management and court-annexed ADR has already been successfully adopted in other jurisdictions including England, Australia and Uganda.
It is for this reason that the proposed amendments are lauded as timely and deserving of support by all stakeholders in administration of justice in Kenya including lawyers. That is not, at all, to say that amendments are perfect and should be adopted wholesale. Rather, it is urged that stakeholder consultation geared at their fine-tuning be undertaken in order to ensure that they achieve the desired effect upon enactment. Most importantly, we need to lobby our legislators to give the amendments a chance.
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Paul Musyimi is a freelance Legal Research Consultant in Kenya. He may be contacted via email at pmusyimi@gmail.com and/or on his cellphone +254-724-634198.
