Inside new Bill that seeks to formalise Alternative Dispute Resolution in Kenya
Kenyans have until June 30 to submit their views on the proposed Dispute Resolution Bill, 2025, that seeks to make provision for the settlement of disputes using alternative means, including conciliation and mediation.
A National Dispute Resolution Council headed by a chairperson shall be mandated with registering, regulating and accrediting persons and bodies offering the services and promoting the development of the legal and institutional frameworks supporting the Alternative Dispute Resolution (ADR) sector and its practice area.
The council shall also be tasked with enhancing the quality of dispute resolution services through the development of standards and the enforcement of regulations.
"A member of the Council who has an interest in any matter in dispute shall, at the meeting, disclose the fact thereof and shall not take part in the consideration or discussion of or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter," the Bill states.
A member who violates this clause commits an offence and is liable to a fine not exceeding Sh200,000.
The council shall also establish and provide oversight over the Practice Area Committees established under this Act.
"Notwithstanding the generality of subsection (1), the Council shall establish the Arbitration Practice Committee; Construction Adjudication Practice Committee; Mediation Practice Committee; Conciliation Practice Committee; and Community-based Practice Committee," the Bill adds.
The committees will be tasked with developing a code of ethics, training curriculum and certification mechanisms for practitioners in their areas of practice.
Membership in any of these committees shall not exceed 11 or be less than five, and composition shall bear in mind gender, age, and persons living with disabilities, all of whom must comply with Chapter Six of the Constitution on Leadership and Integrity.
The functions of the Practice Area Committees shall be to enhance the quality of ADR services in their area of practice through the development and enforcement of tools of regulation and governance including codes of conduct; develop standard operating procedures; remuneration schedules; training curriculums and certification and accreditation mechanisms; and Continuous Professional Development (CPD) programs among other things and at the end of every June of each year, make a report to the Council on the performance of their functions under this Act.
The Bill further prohibits any form of mediation on disputes falling within the Protection Against Domestic Violence Act and Sexual Offences Act, and any other circumstance prescribed in this Act or by or under any written law, noting that participation in mediation shall be voluntary.
"A party may withdraw from the mediation at any time during the mediation; be accompanied to the mediation, and assisted by a person (including a legal advisor) who is not a party; or obtain independent legal or other advice at any time during the mediation," it states.
The minimal fees and costs of any mediation shall not be dependent on the outcome of the mediation agreement which shall be made in writing and shall contain information on the manner in which the mediation is to be conducted, the manner in which the fees and costs of the mediation will be paid, the manner of confidentiality of the mediation and the manner in which the mediation may be terminated.
Court-annexed mediation
Where there is a mutual agreement of the parties resolving part or all of the issues in a court-annexed mediation, the agreement shall be reduced into writing and signed by the parties and shall be filed in court by the mediator within 10 days after the mediation is concluded.
In this case, no appeal shall lie against a judgment entered in this manner, and anything said during the mediation session shall be inadmissible in any legal proceedings as evidence; however, the mediation shall not be taped, nor transcripts of it made.
"A mediator or any person present at the mediation shall not be summoned, compelled, or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law," the Bill adds.
At the same time, a record of a mediation under this Part shall not be admissible before any court of law unless the parties agree in writing.
It further seeks to amend the Arbitration Act, 1995, to align it with the best global and emerging practices.
"Where there is no opposition to the agreement within seven days of service, the agreement shall be registered as a judgment of the court. Application for opposition to the agreement. Where the application is opposed, it shall be heard and determined within twenty-one days," notes the Bill.
A National Dispute Resolution Council headed by a chairperson shall be mandated with registering, regulating and accrediting persons and bodies offering the services and promoting the development of the legal and institutional frameworks supporting the Alternative Dispute Resolution (ADR) sector and its practice area.
The council shall also be tasked with enhancing the quality of dispute resolution services through the development of standards and the enforcement of regulations.
"A member of the Council who has an interest in any matter in dispute shall, at the meeting, disclose the fact thereof and shall not take part in the consideration or discussion of or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter," the Bill states.
A member who violates this clause commits an offence and is liable to a fine not exceeding Sh200,000.
The council shall also establish and provide oversight over the Practice Area Committees established under this Act.
"Notwithstanding the generality of subsection (1), the Council shall establish the Arbitration Practice Committee; Construction Adjudication Practice Committee; Mediation Practice Committee; Conciliation Practice Committee; and Community-based Practice Committee," the Bill adds.
The committees will be tasked with developing a code of ethics, training curriculum and certification mechanisms for practitioners in their areas of practice.
Membership in any of these committees shall not exceed 11 or be less than five, and composition shall bear in mind gender, age, and persons living with disabilities, all of whom must comply with Chapter Six of the Constitution on Leadership and Integrity.
The functions of the Practice Area Committees shall be to enhance the quality of ADR services in their area of practice through the development and enforcement of tools of regulation and governance including codes of conduct; develop standard operating procedures; remuneration schedules; training curriculums and certification and accreditation mechanisms; and Continuous Professional Development (CPD) programs among other things and at the end of every June of each year, make a report to the Council on the performance of their functions under this Act.
The Bill further prohibits any form of mediation on disputes falling within the Protection Against Domestic Violence Act and Sexual Offences Act, and any other circumstance prescribed in this Act or by or under any written law, noting that participation in mediation shall be voluntary.
"A party may withdraw from the mediation at any time during the mediation; be accompanied to the mediation, and assisted by a person (including a legal advisor) who is not a party; or obtain independent legal or other advice at any time during the mediation," it states.
The minimal fees and costs of any mediation shall not be dependent on the outcome of the mediation agreement which shall be made in writing and shall contain information on the manner in which the mediation is to be conducted, the manner in which the fees and costs of the mediation will be paid, the manner of confidentiality of the mediation and the manner in which the mediation may be terminated.
Court-annexed mediation
Where there is a mutual agreement of the parties resolving part or all of the issues in a court-annexed mediation, the agreement shall be reduced into writing and signed by the parties and shall be filed in court by the mediator within 10 days after the mediation is concluded.
In this case, no appeal shall lie against a judgment entered in this manner, and anything said during the mediation session shall be inadmissible in any legal proceedings as evidence; however, the mediation shall not be taped, nor transcripts of it made.
"A mediator or any person present at the mediation shall not be summoned, compelled, or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law," the Bill adds.
At the same time, a record of a mediation under this Part shall not be admissible before any court of law unless the parties agree in writing.
It further seeks to amend the Arbitration Act, 1995, to align it with the best global and emerging practices.
"Where there is no opposition to the agreement within seven days of service, the agreement shall be registered as a judgment of the court. Application for opposition to the agreement. Where the application is opposed, it shall be heard and determined within twenty-one days," notes the Bill.
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Dispute Resolution Bill 2025
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