Disputed property: Use alternative resolution
By Editorial, January 10, 2025
Thousands of acres of land lie idle around Kenya because of court disputes. People Daily has been reporting about property disputes raging in courts and involving relatives, especially in the North Rift Valley.
Most of the cases feature siblings fighting over land left behind by their deceased parents. The families of some prominent people are also in court over the sharing of property.
The unfortunate outcome of these cases is that they render the disputed property unutilisable for productive economic activity. A lot of investments have stalled or even evaporated due to court battles. It doesn’t help that our court processes take inordinately long to solve these matters because of a huge case backlog, or death of litigants or witnesses.
Many families have been driven into penury due to court battles over property. It is worth noting that our justice system is adversarial in nature. Court decisions declare litigants winners or losers. One party leaves the courtroom elated while the other is offended.
We strongly believe that some of the land cases that have dragged on the court system for decades can be settled through alternative dispute resolution (ADR) mechanisms. This could end the pain of families, unlock business and make the properties available for use.
More importantly, this method mitigates against the animosity that emanates from court outcomes that more often end up splitting families. ADR decisions present a semblance of a win-win situation.
Article 159 of the Constitution compels the Judiciary to promote alternative dispute resolution, including conciliation, mediation, arbitration and other traditional mechanisms. This is meant to ensure that as many Kenyans as possible have access to justice and that cases do not drag on in courts longer than necessary. It will also ensure that the case backlog is drastically reduced. ADR also fastens the resolution of disputes for communities that have to travel long distances to access judicial services.
According to Deputy Chief Justice Philomena Mwilu, expeditious resolution of commercial disputes, confidentiality, flexibility with regard to solutions, allowing for choice and autonomy of disputing parties, and the minimal costs compared with litigation are some of the advantages of ADR.