Environment and Lands Court banking on mediation to reduce backlog

National Lands Commission Chair Gershom Otachi with Lady Justice Jane Onyango, Environment & Land Court Judge during the Land and Environment Court launch of mediation service week on February 9, 2024. [Elvis Ogina, Standard] The Environment and Land Court (ELC) is banking on Court court-annexed mediation (CAM) to reduce case backlogs and turnaround time. This is according to ECL's Justice Caroline Kendagor, acting Registrar Mediation when the court met mediators at a Nairobi hotel on Friday. She said since CAM started as a pilot project in 2018, the case referrals to ECL have been on an upward trend. "The two years 2019 and 2023 have registered the highest cumulative referrals across the courts that are in the ELC. When we hit off in 2019, we had 328 cases, between 2020 and 2021 the cases went down due to the Covid-19 pandemic but in 2022, we picked up with 220 cases and 2023 recorded the highest referrals at 338. In 2024, we are one month old and already received 23 cases," said Ms Kendagor. She said the current period has seen an average of 63.8 percent in settlements of cases from 34.7 percent when they started. The mediation implementation, she said, has also been progressively picking up well from 22 per cent during Covid-19 period to 36 percent, 41 per cent and now an average of 53.8 percent, showing steady growth. Milimani ELC in Nairobi has the highest referral cases, followed by Nyeri, Eldoret, Embu and Kakamega, respectively. In terms of settlement agreements, Kisii leads with an average of 65 percent followed by Kabsabet 43, Nyeri 42 percent. She said there are 172 active and accredited mediators in Nairobi for ELC out of 311 active accredited mediators across the country. The meeting with mediators, she said is part of the more that will come including with lawyers then culminate into open day on March 7. Guest speaker and National Land Commission (NLC) chairman Gershom Otachi said most of the High Court cases involving murder are related to land disputes and through mediation, they can be reduced. He said NLC employs traditional dispute resolution mechanisms to solve land-related cases and Alternative Dispute Resolution is the way to go. Otachi said the current formal court system, which was inherited from the colonial masters is adversarial. "We want to solve disputes related to land the traditional way to avoid burdening courts with cases, which can be solved through processes like Alternative Dispute Resolution (ADR)," he said. Justice Judith Omange of ELC, said this year will mark eight years of CAM since it was launched and significant milestones have been achieved. "We are in 38 counties now with latest in Kitui County, which was launched last week," she said. She challenged the Nairobi ELC courts to do more to reduce cases, saying when we have several parcels of land locked up in mitigation, it means that land is not being used productively and the country is losing something. "We know that people have killed each over land and therefore land is very important to us. We also have in the ELC family disputes, where family members are at risk and if we do not mediate between them, they risk being rendered landless because if goes strictly what the law says, if a judge decides that matter, there are times a decision will be reached that not everybody wins," she said. She asked the mediators to be careful with issues of fraud, which is very common in Nairobi. Ms Omange said recently Judiciary formed the Nairobi Land Justice Working Group that will deal with issues in Nairobi, and ELC will be looking to mediators for help on cases not only in court but also outside there so that they can be mediated before they reach courts because some disputes are similar. Justice David Mwangi of ECL said mediation originates from the holy book of the Bible from Exodus 18: 13-22, where Moses's father-in-law Jethro told him to select capable, God-fearing and trustworthy men who could help him solve disputes among many people after seeing him, working alone deciding disputes from morning to evening. "I therefore challenge you to be like the men that Moses selected. Mediation is one of the dispute resolution mechanisms known as Alternative Dispute Resolution( ADR).They call it alternative but I call it Appropriate because not all disputes can fit in the legal mechanisms of litigation and arbitration and there is an appropriate, or better way and that is mediation," said Justice Mwangi. He said mediation makes all parties go home happy, satisfied and restores relationships and is cost-effective, informal, flexible, private and easily accessible to parties. Justice Mwangi challenged mediators to uphold confidentiality, avoid conflict of interest, be competent enough and be of integrity.

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Environment and Lands Court banking on mediation to reduce backlog

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