“Conflict lies at the core of innovation” Emanuel R. Piore
The above saying is poignant in the life of a lawyer. Conflicts are with us every day from someone bumping into you while you are in traffic, land transactions going awry, to tenants not paying rent. All these conflicts can be solved in several ways. Dispute resolution encompasses litigation, arbitration, mediation and negotiation. Below we shall briefly outline each of these dispute resolution mechanisms.
This is the process of solving a dispute through the courts. In Kenya, litigation takes the hilt when it comes to dispute resolution mechanisms. There are several ways in which to present your case in court depending on the dispute. Equally, there are different courts in which to present your dispute. The High Court of Kenya is divided into different divisions to facilitate the ease of filing and to allow the judges to hone in and develop a niche in certain aspects of the law. The Constitution of Kenya 2010 introduced the Environment and Land Court; and the Employment and Labour Relations Court to deal with land and employment matters respectively.
This is another dispute process in which an arbiter is appointed either with consent of the parties or by the chairperson of the Chartered Institute of Arbitrators to decide a dispute. Arbitration is quasi-judicial in that after the award has been delivered one has to file that award in the High Court to have it adopted as an award of the High Court. The advantage of arbitration is that it’s more expedient than filing a suit in court. Parties can choose an arbiter with experience in a certain field, for example a dispute over electrical fittings in a 25 storey building, would much better be handled by an experienced electrical engineer than a lawyer. The arbiter’s award can only be appealed or set aside on very strict grounds and therefore substantially reduces the chances of lengthy litigious battles.
Mediation is a process in which the parties to a dispute, through the use of a qualified mediator, come to an agreement over the dispute that is generated by the parties themselves. It is a win-win situation. An example is where an employee’s services are terminated and writes to the employer claiming unfair termination. This is the crux of the dispute between the employer and employee. A mediator would lead the parties above to an amicable settlement if they are open and willing to come to some middle ground. Mediation is the most cost-effective mechanism among the three options as there are no court fees and filing costs. It is also the fastest mode of dispute resolution. The Courts in Kenya recently introduced court-annexed mediation. This is where the court determines a matter to be prime for mediation and appoints a mediator. The parties have 60 days to try and conclude the matter. If the parties come to an agreement, then a settlement agreement is drafted and signed by disputants in the presence of a mediator and filed in Court which then proceeds to close the file in terms of the Settlement Agreement.
This is not really a dispute resolution mechanism, but nevertheless needs to be mentioned. Before parties head down the litigious path, advocates may assist to negotiate a settlement. These are normally disputes that mainly have a financial aspect ie. one party owes another party money with no need for declaratory orders. As advocates our job is to advise our clients of the best possible way to deal with a dispute which sometimes can be as simple as an apology.
- We have significant experience helping clients navigate PR issues, including defamation. We understand the relevant laws and have close relationships with PR firms that enable us to provide clients with comprehensive service.
- Our competition law specialists and litigation experts work together on cases in integrated teams, allowing us to support our clients right through from the start of competition investigation, to appeals and potential and follow-on litigation. Our team of litigators has considerable experience of representing clients in appeals against decisions of competition authorities, where we bring our in-depth understanding of effective litigation strategies to our contentious advice.
- We represent commercial and investment banks, insurers and other financial institutions in high-stakes, high value litigation and arbitration. We partner with current and former executives in the financial services sector, providing clients with valuable insight into how the sector works.
- We represent state owned entities in claims against private parties and defend them against claims arising from procurement, employment and general contract. We maintain good relationships with government officials and participate in policy formulation to contribute private sector perspectives. We have extensive experience assisting companies and financial institutions conduct investigations. We also represent corporations, officers and directors in criminal investigations and prosecutions, and advise on disclosure, self-reporting, corporate governance and internal controls issues.
- We have extensive experience prosecuting and defending land claims in the Environment and Land Court on adverse possession, boundary disputes, issuance of multiple titles, permits and licensing for construction projects. We are party representatives in various arbitration matters relating to agriculture, construction, grain, infrastructure, land, logistics, manufacturing and pharmaceuticals. We have experience addressing issues peculiar to the telecommunications sector and have proficiency in addressing issues from the Kenya Information and Communications Act. We handle litigation pertaining protection and defence of intellectual property rights: copyright, designs, patents, trademarks, passing off and unfair competition for various sectors including performers, writers, manufacturers, pharmaceuticals.
- We act for entities in the energy sector in relation to disputes arising from financing, construction (FIDIC), performance bonds and licensing. We represent manufacturing companies in addressing counterfeit claims, integrity challenges and consumer rights claims. We represent clients in administrative law and contentious regulatory disputes in industries including healthcare, media and broadcasting, utilities and financial services. We also help clients interpret and respond to developments in judicial review and regulations, and develop strategies that are responsive. We act for national and international financial institutions with respect to government relations, enforcement of guarantees, risk advisory, liquidation, debt collection, asset tracing and recovery. We collaborate with well regarded tax experts to represent clients in tax disputes on VAT Refunds, Transfer Pricing, audit queries and render early case assessments.
- Our litigators represent clients in complex financial litigation, including commercial disputes, M&A transactions and corporate control. We advise listed companies on insider trading prevention programs, reporting and other disclosure issues, codes of conduct, and overall compliance with securities laws and regulation. We also represent clients in government proceedings.
- We render advisory services to distressed companies and those seeking to recover on the liquidation options and we also facilitate the introduction of distressed companies to investors. Our team has experience with risk advisory and litigation before the Employment and Labor Relations Court relating to business process outsourcing, redundancy, unfair and unlawful termination, recognition of collective bargaining agreements. In this area, we represent NGO’s, international companies, SME’s and start ups.
- We partner with experts to assist clients resolving customs litigation, particularly with regard to clarification of and compliance with applicable tariffs and duties. We advise NGO’s and corporates on the regulatory and statutory framework by undertaking legal and governance audits with respect to Data Protection, AML, Bribery and Corruption.
- We advise on corporate disputes arising out of shareholder agreements, joint venture agreements, letters of intent, minority shareholder claims, disputes involving warranty and indemnity claims, completion and escrow account disputes, and claims involving tag-along and drag-along rights.
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