Dispute Resolution

Overview

“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, to land transactions going wary, to tenants not paying rent. All these conflicts can be solved in several manner of ways.

Dispute resolution encompasses litigation, arbitration, mediation and negotiation. Below we shall outline brief each of these dispute resolution mechanisms.

Litigation:
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 particular 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.

Arbitration:
This is another dispute process in which an arbiter(s) is appointed either with consent of the parties or by the Chair of the Chartered Institute of Arbitration 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 or arbitration is that it may be faster and cheaper than filing a suit in court, the 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 experience electrical engineer than lawyers. The arbiter’s award can only be appealed or set on very strict grounds and ergo substantially reduces the chances of lengthy litigious battles.

Mediation:
This is the gem of all three and the most under-utilized. 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. For example, an employee’s services are terminated. She claims that the termination of her employment is unfair on several grounds and writes to her 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 the parties are open and willing to both come to some middle ground. Mediation is the cheapest of 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, where the court determines a matter is prime for mediation, appoints a mediator and the parties have 60 days try and conclude the matter. If the parties come to a agreement, then a Settlement Agreement is drafted and signed by the parties to the dispute and the mediator and filed in Court which will proceed to close the file in terms of the Settlement Agreement.

Negotiation:
This is not really a dispute resolution, but one that needs to be mentioned. Before a party heads down the litigious path, advocates may assist parties 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.

Stephen Gikera

Chairman-Partnership Board

Recent Transactions

  • Led a team that conducted a legal audit on one of Kenya’s reputable banks. The assignment included review of all securities, review of all contracts, examination of the process of perfection of securities, review of the legal risk register and other appropriate recommendations arising from the legal audit.
  • Successfully litigated an arbitration matter where he represented a developer against a claim running into several millions of dollars.
  • Currently, representing a state corporation on a constitutional petition where the value of the subject matter runs into Tens of millions of dollars.
  • Judicial Review: Successfully defended client’s claim to have caveats entered by the Registrar of Lands removed.
  • Successfully defended client’s rights in an appeal against the ruling of the Environment and Land Court.
  • Represented a client in an arbitration claim worth over Two million dollars.
  • Represented two telecommunication companies in various commercial matters before the High Courts of Kenya and the different quasi-judicial tribunals within the Republic of Kenya.
  • Advised several local and international companies in various business law aspects including Intellectual Property, Commercial Agreements disputes and International Joint Venture Investment within Kenya.
  • Represented a client in a dispute involving ownership of land worth over Eighty million dollars.
  • Represented a client against a claim of obtaining vacant possession over a property worth millions of dollars and recovery of substantial amounts of outstanding rent.
  • Acting for a leading Commercial Bank in the Recovery of Three million dollars that had been lent out to certain companies and guaranteed by the Directors.
  • Represented a Large cement Manufacturing company in a suit where the Plaintiff was seeking over Two million dollars for breach of contracts.
  • Represented a local Bank in a suit involving Breach of Guarantees amounting to over Two million dollars in a Construction Dispute.
  • Represented two Companies in an Insolvency Petition against a Supermarket Chain in the High Court of Kenya. The two companies were seeking a total of over Four million dollars that is due and owing to them.
  • Advised a Regional Logistics Company through a redundancy process following an institutional Re-organization for specific areas the Company was working in thus necessitating downsizing of staff.
  • Advised a local branch of a large globally established Non-Governmental Organization on the regulatory and statutory framework underlying their operations in Kenya as well as issuing an opinion on the nature of the NGO’s financial obligations under Kenyan Law.

As part of our Corporate Social Responsibility service, we also offer pro-bono services in merited cases.