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Embrace out-of-court mechanism, lawyers advised

By Murimi Mwangi | February 24th 2014

By Murimi Mwangi

Kenya: A High Court judge and a principal magistrate have advised lawyers handling children cases to advise their clients to embrace Alternative Dispute Resolution (ADR) mechanisms other than litigation.

This comes in the wake up of many cases involving children piling up in courts, some of which could easily be handled out of court.

Lady Justice Jacqueline Kamau of the Nairobi High Court and Milimani Law Courts Principal Magistrate Anthony Mwicigi rooted for ADR to protect children from the psychological trauma occasioned by protracted suits, and negative publicity that comes with it.

The two were speaking in Nyeri during a two-day seminar on Family Disputes organised by the Law Society of Kenya dubbed, ‘Family Disputers: New Frontiers, Skills, Pleadings and New Approaches’.

Justice Kamau said that some lawyers have become so unscrupulous that they deliberately delay children cases with unnecessary applications and adjournments, while others prefer going to court so as to also benefit from the suits.

“Some lawyers make so many interlocutory applications to conflate costs of the suit. But is this what is best for the children?” she posed.

She said children matters such as custody, access and maintenance can be resolved more satisfactorily through ADR mechanism, without subjecting children to unnecessary psychological torture.

“Our courts are grappling with a backlog of cases, while litigants are faced with congestion and closure of court diaries.  We can help the situation by going the ADR way in the appropriate cases,” she advised.

The judge, however, noted that lawyers are resistant to adopt ADR as it reduces their incomes and have branded it such names, as “Another Disappointing Result” or “Accelerated Decline of Revenue.”

Mr Mwicigi, on the other hand, advised the lawyers to put the welfare of the children above their financial exploits, in the legal business.

“I advise a lot of caution on children matters. Perhaps it’s about time that lawyers should refuse to take money from dishonest litigants for the best interests of the child,” said Mwicigi.

The magistrate also rooted for creativity in determining emergent matrimonial suits, as some litigants have become crafty to evade the judicial process with some even having themselves declared bankrupt.

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