Judges and magistrates push for mediation to reduce backlog of cases

The uptake of Alternative Dispute Resolution (ADR) services is yet to pick up 10 years after its rollout.

Judges and magistrates, at a meeting in Mombasa on Thursday, said the failure to take up ADR, particularly meditation, among other means of resolving civil cases, has massively contributed to a backlog of cases in the courts.

Recent data by judges showed that cases worth Sh32.8 million were solved in Mombasa through mediation between June 2022 and June 2023. This is against cases worth 312.4 million.

High Court judge Olga Sewe, on Saturday, said this was too low compared to Milimani Law Courts in Nairobi that registered solved cases worth Sh5 billion through mediation.

“The uptake on mediation service is very low yet is an alternative to solve cases in real-time within 60 days. We need to pull up our socks,” said Justice Sewe, who spoke during the celebrations to mark the 10th anniversary of the Employment and Labour Relations Court (ELRC).

“In Nairobi, 925 cases went through mediation representing an argument rate of 45.9 per cent that saw approximately Sh5 billion returned to the economy,” said Justice Sewe.

Resident Judge and Deputy Registrar David Mbeja said ERLC lacks adequate space to conduct its litigation matters.

Mbeja said the Justice Towers in Mombasa Law Courts that was set to be their working space is faulty and both judges and litigants are not comfortable working from the building.

“The biggest challenge is dispensing justice from the Justice Towers. Judges have a lot of problems because the building wasn't well done. We receive complaints from judges and litigants and dispensing justice from home is tall order. We pray that the Chief Justice and Registrar can help speed up the completion of the building,” said Mbeja.

Mombasa Chief Magistrate Josphat Kalo said the lower courts are overwhelmed by the cases involving ELRC because of few magistrates. He said despite lower courts handling ELRC matters, they are limited to 80,000. “We do not have enough magistrates to handle the ERLC cases,” said Kalo.

Justice Agnes Nzei said ERLC usually advocates for mediation before settling for litigations because when giving a decision, one party will be disgruntled.

“When the disputes are filed in court, we are supposed to solve the matters taking into consideration the fact of the case as pleaded and evidence presented before us. We don't consider anything else,” said Nzei.

Presiding Justice Monica Mbaru urged employees to embrace trade unions as they will be able to defend them as they continue with work.

“If there are employees who are not presented by a trade union they need to rethink that,” said Mbaru.

Federation of Kenya Employer (FKE) official Joseph Nyaga said that ELRC pronouncements by judges have helped the dispute tribunals in handling small cases.

“As FKE we help to advise employers and employees. Since the ERLC was formed, it has been able to help in addressing the cases. The matters are handled quickly, some in less than a year. Before the formation of ELRC, tribunals and their pronouncements did not help as much for lack of a legal basis,” said Nyaga.

Mombasa Law Society of Kenya chairman Charles Opulu said there is a need to tinker with the Employment Act to be realistic with times. He said that employers think that ELRC favours employees.

“I wish to see the days when a shamba boy working for a judge gives me instructions to represent them. I would love to understand how you interpret these laws,” said Opulu.

He said there is a need to increase the court branches in Voi and Kwale because the distance travelled by the litigants is long.