See you in court? No, let’s talk, how mediation works

Members in mediation hold a session on July 4. [Harun Wathari, Standard]
For nine years, Rosemary Nyambura and her co-wife battled in court for their late husband’s property.

When the family’s bread winner died on March 9, 2010, life became hard for Nyambura as she tried to fend for her children. The succession case made things worse, it drained the family’s finances.

“After the death of my husband, life became unbearable for my children and I. With a case in court I had to struggle to earn a living as well as pay lawyers who represented me in court,” she says.

Succession case

The widow filed the succession case at the High Court in Nakuru in 2011. But after waiting for elusive justice for nine painful years, the matter was finally settled in March this year after only two weeks of mediation.

Nyambura reveals that after her co-wife’s brother knew what was happening, he advised that they settle their dispute peacefully by visiting a mediator.

It worked like magic. As they were invited for a talk, the widows, who never saw eye to eye, were embracing each other. According to Nyambura, they were able to express their feelings at each other, “we spoke our heart, and what we would wish should be done”.

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They finally settled on an agreement and agreed to share a portion of the property that was in dispute. “Within two weeks we were able to come up with a solution, something that took us nine years in court due to adjournments among other issues,” says Nyamburu who at one point changed her lawyer because she thought he had been compromised.

And they are not alone. Nakuru residents are embracing mediation to resolve disputes that would have taken long to determine through the judicial process.

Statistics from the Nakuru Annexed Mediation Court indicate that at least 133 cases were registered for mediation this year alone.

Out of that number, 20 cases have been fully settled, five are ongoing while 20 failed mediation. According to a report from the Judiciary, in 15 of the cases, the parties failed to comply with the agreed terms.

“Mediation is the most effective way of resolving disputes that might end up in court and take long to resolve,” says High Court Justice Joel Ngugi.

Nyambura’s case is not different from Gerald Kangethe’s, who had a court case that took five years to wind up.

Kangethe was forced to take his aged mother Miriam Njambi to court over a land dispute. At the time, he felt that his mother gave out three hectares of land in Nyahururu without consulting him.

“My family has nine hectares of land, and our mother gave out three hectares without our knowledge. We tried to solve the issue at home but it become difficult, forcing me to take the issue to court for justice,” says Kangethe.

For five years the case failed to take off due to lack of witnesses.

Thankfully, with help of friends Kangethe got to learn about the Meditation Court.

Family dispute

Even though his mother was initially shy to take up mediation, she finally agreed and the family was able to solve the land dispute within three weeks.

“When my son took me to court I was disappointed, but today I am happy because we have solved the issue that almost cost me my family,” says Njambi.

Henry Kuria had loaned a friend Sh100,000 way back 2018 and thanks to the Mediation Court he was able to learn that his friend owed him more than he thought - an extra Sh100,000.

The friend had promised to give back the money in two months, and had given out his logbook as assurance of payment. He failed to keep his word and the said period elapsed with no pay.

“The friend came to my house and asked for his logbook without having made any payment; shocked and disappointed, I could not give it to him. I wanted to take the case to court but I met someone who informed me about mediation,” says Kuria.

With mediation the two friends were able to come up with an agreement saying Kuria would receive his money after every two months.

According to Kuria, mediation has cemented the relationship that was almost deteriorating and no one holds a grudge against the other.

He says that a number of locals go to court when settling disputes that could easily be settled through mediation. Quite a number have known that they can embrace mediation as an easy way to settle their differences, thus saving valuable time and money.

Tabitha Rutere, an accredited mediator, says people should emulate mediation as the best way to solve domestic disputes. She says the court screens the cases they record for plea and chooses those that can be settled through mediation.

However, she is given an allowance of 60 days for settlement between parties involved and if there is no agreement the matter is presented back to court.

On matters of succession or divorce after successful mediation, the parties involved go to court for certification.

“Normal court gives me cases they have screened for mediation because it is not all cases that can be mediated. For instance, robbery with violence and murder cases are only handled by the State and not mediators,” says Rutere.

According to Rutere, mediation is a concept that needs sensitisation because 95 per cent of cases handled in court should have been handled through mediation, due to its cheap and swift nature. This way, backlog of court cases is reduced.

Mediation gospel

The mediator rubbishes claims that mediation will deny lawyers jobs, and opines that lawyers should spearhead mediation because most cases pass through them before heading to court.

“Lawyers should be the first to preach the mediation gospel, because many cases pass through them before heading to court,” says the mediator.

She adds that all cases she has handled have been successful, expect for one that she had to refer back to court due to lack of agreement between the two parties.

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