The Gospel of Matthew advises citizens to resolve disputes with their adversaries before being handed over to judges who may throw them into prison.
With prison congestion, family wrangles, and business disputes escalating, former Chief Justice David Maraga launched the Alternative Justice System (AJS) on August 26, 2020.
The AJS is a system that allows litigants in criminal and civil cases to resolve disputes outside the jurisdiction of the courts through healthy negotiations. The system is not only supposed to resolve cases but mend broken relationships, as parties in the cases are given chances to express themselves without restrictions.
Maraga said, unlike the court system, the AJS ensures all parties win and get what they want. The AJS is an umbrella which comprises arbitration, mediation, consent agreements and blood money compensation, to resolve disputes. Maraga noted that the AJS would also help reduce the backlog of cases in the courts.
Court of Appeal Judge Joel Ngugi was appointed the Chair of the National Steering Committee for the implementation of the AJS policy. According to Ngugi, the AJS module has a panel of at least three arbitrators who sit with opposing parties.
“The panelists include elders, prisons in charge, lawyers, religious leaders, and court officials among others. As of now, the panellists sit in the court’s jurisdiction,” notes Ngugi.
Those in the panel get the root cause of disputes by hearing opposing parties vent, disagree, and offer solutions themselves. The panel gives advice and recommendations only.
Ngugi says the aim of the panel is not to decide on behalf of the parties but help them come up with their own solutions. He takes note that in Nakuru alone, over 150 cases had been taken from courts and referred to the AJS since it was launched in 2021, with almost half of them resolved.
“A succession case that had been in court since 2006 was resolved in one sitting. Also, over 250 cases for sex workers and 400 disputes in the bodaboda sectors have been resolved,” said Ngugi at a previous event.
Unlike the court procedure that is strict, technical, complicated and rigid, Ngugi says AJS has a vast way of resolving disputes. The AJS, he notes, ensures all parties win and reconcile after resolving disputes. The process is usually supposed to take six months.
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Speaking in a past event, Chief Justice (CJ) Martha Koome said the AJS has eased the burden of dispute resolutions, adding that it gives chances to people who had claimed but were scared to go to court and resolve the issues.
The CJ noted that only 21 per cent of Kenyans have access to the formal justice system, and the AJS will be beneficial to the 79 per cent who have no trust in the justice system.
The CJ was disheartened at how succession cases and family disputes had dragged on in courts for decades while kin suffered. “We do not want to deal with succession cases anymore, and I hope those cases are resolved through AJS and are removed from courts immediately,” she said.
The positives of the AJS are that disputes that had been dragging in court are always resolved in one or two sittings.
After 19 years in court, a Nakuru widow finally obtained the right to inherit part of her deceased father’s property. Ann Wanjiku had been fighting her eight siblings in court since 2003 until June 14, 2022, when Justice Ngugi, then High Court judge, referred the matter to the AJS.
After only one AJS session, the eight children of the late David Ndung’u agreed that Wanjiku, their sister, should inherit a significant share of their father’s property.
The family of Elkana Kipkemoi, 20, and Haron Cheruiyot are in discussion on how to resolve their dispute through the AJS, following Cheruiyot’s death. Kipkemoi admitted that he killed Cheruiyot on October 17, 2021, at Mosop Village in Njoro sub- county, Nakuru county.
Last year, Justice Teresia Matheka noted that the offence was committed when Kipkemoi and Cheruiyot fought while drinking alcohol. Cheruiyot was wounded and succumbed to the injuries.
Also, a probation report dated January 26, 2022, stated that Cheruiyot’s family had appreciated the goodwill shown by Kipkemoi’s family when they settled Cheruiyot’s Sh100,000 hospital bill.
Furthermore, through the AJS, the Ethics and Anti-Corruption Commission (EACC) recovered a government housing property in Kericho worth Sh5 million through the Alternative Justice System (AJS).
Fake title documents
According to South Rift Manager Ignatius Wekesa, the developers who realized they had fake title documents for the land agreed to surrender them to EACC. “We are in the process of rectifying the title deeds for the repossession of the land,” said Wekesa.
The system has also been exploited, where parties pretend to agree, then backstab each other after the cases are closed.
Wilson Mwangi was charged with defrauding Amina Jarso Sh127,000 by pretending he would offer her a security job in Dubai last April. The case was referred to AJS when Mwangi said he would refund the money he took. However, to date, he is yet to pay her Sh51,000, despite being ordered to do so by August 5, last year.
Senior lawyer Kipkoech Ngetich notes, AJS is good but needs gradual implementation. “It is called the alternative system, and it is not the main system. Some players in the system want to force it, and it will crumble,” said Kipkoech.
He advises the judiciary not to refer serious cases, including capital offences to the AJS, unless carefully examined to avoid misuse of the system.
He notes court system should supervise the AJS because the judiciary is not ready to sustain the system 100 per cent for a lack of labour, funding and capacity.