Why out-of-court settlements are a better option

Justice Joel Ngugi spoke on June 28, 2022, at Nakuru law courts when the court was sensitizing the public on mediation and its importance. [Daniel Chege, Standard]

GO, a father of two daughters, was heartbroken when his wife died in 2017.

His children later cut communication with him. He says they were incited by relatives following a property dispute.

GO, a Nakuru resident, had accumulated wealth with his deceased wife since 1991. He had properties, shops, rental houses, residential homes, and plots.

On Wednesday, GO said when his wife died, his in-laws turned against him. “They told my children that I was going to take over control of all the properties, including their mother’s. My children believed that their mother owned the majority of properties.”

He filed a succession case in 2020 to distribute the family’s properties. He also spoke to Chief Magistrate Edna Nyaloti and asked for an Alternative Dispute Resolution (ADR). “The court issued summons to my children who were in shock because they thought I had sued them. However, I wanted us to resolve the matter,” he said.

The children hired lawyers only to realise their father wanted the matter resolved outside court. Amid the case, the wrangles escalated when GO planned to remarry. “My children were told I will deny them their share in the property and share it with their step-mother.”

It took a year for the mediation to start. GO, however, said they resolved issues that had brewed for over three years in two sittings. He said the matter was resolved as soon as he produced a document showing how he intended to share the family’s properties among his children.

“They realised they had been misled and what we had was a misunderstanding. They could not believe I had given the majority of my shares to them.”

“The second sitting was held in April this year, just to confirm details of the agreement. It was done in the presence of my in-laws. Our lives have changed for the better.”

Elsewhere, a 1990 succession case in relation to Kedong Ranch shares owned by a foreigner was resolved in one sitting. According to court records, the foreigner’s wives, children and grandchildren had been in a heated inheritance legal battle.

Deputy registrar in charge of mediation Margaret Kyalo said the family recorded consent on June 17 this year. “It saved them time, money, and emotional and physical pain they would have endured if they continued with the case in court,” Kyalo said.

She also mentioned a 1983 case that was resolved in two sittings. She said the family wanted to remain anonymous over their case.

Mediators resolve succession disputes, land issues, employment issues and civil cases. According to Kyalo, in mediation, warring parties are allowed to speak freely unlike in a court set-up where the engagement is limited. “The mediation was created to help resolve both physical disputes and emotional ones because parties come up with solutions themselves. In the end, everyone wins,” she said.

Justin Nyetete, the chair of Mediators in Nakuru, says there are 57 mediators in court and over 100 in Nakuru. He said cases are supposed to be resolved within 60 days. “Judges and magistrates decide issues, but we do more than that, we resolve them,” Nyatete said.

Since mediation was introduced in Nakuru in 2019, some 105 out of 370 cases referred to mediation have been resolved. The statistics showed that the cases resolved increased from 22.4 per cent of cases referred in 2019 to 44.2 per cent in 2022.

James Mangerere, a mediation trainer, blamed lawyers and the public for not embracing mediation. He said it was time for lawyers to understand that better money is made in mediation than in courts. “Cases will be resolved in confidentiality and Kenyans will not experience family wrangles,” he said.

In response, lawyer Kipkoech Ngetich said although lawyers support mediation, there are concerns the system is an experiment that may collapse due to lack of support.

“The Judiciary does not have registrars specifically employed for mediation. The ones available also serve as Registrars of the high courts. Why is the Judiciary overloading registrars?” he said.

Mr Ngetich said there are minimal infrastructure, personnel and funds to run mediation and other ADRs. The Judiciary, he said, has no annual calendar that dictates what they do every year and has isolated lawyers when they pilot ADRs.

Justice Joel Ngugi said the best judges can decide cases based on evidence alone. He said that may not help in terms of emotional burdens and torture suffered by parties in the case. He said courts should only exist as institutions of last resort and not first.