The success story of mediation in resolving lengthy court processes

Deputy Registrar in charge of Mediation, Margaret Kyalo, during a past event. [Daniel Chege, Standard]

Ondiek (not his real name), a father of two daughters, was heartbroken when his wife died in 2017 after a long illness. To add to his troubles, his children abandoned him and as he says, "they cut all communication with me".

The reason behind his children's actions, he says, was that they had been incited by their aunts and uncles to turn on him because of the family's properties.

Ondiek, a Nakuru resident, had accumulated wealth with his wife since their marriage in 1991. The couple had properties, shops, rentals and residential homes, as well as land.

Ondiek said when his wife died, his in-laws started claiming that he was stealing from his deceased wife.

"They fed my children with propaganda that I was going to take over control of all the properties, including their mother's share. My children believed their mother owned most of our properties," said Ondiek.

As a result, Ondiek's children ignored him since 2019 to March 2022, something he says caused him pain and anger.

The wrangles escalated when Ondiek planned to remarry, as his relatives believed he would pass on his late wife's property to his new wife.

To clear the air on issues, Ondiek filed a succession case in court in 2020 with the aim of distributing the family's properties.

While presenting his case, Ondiek requested Chief Magistrate Edna Nyaloti for Alternative Dispute Resolution (ADR) for the situation. ADR refers to different ways aggrieved people can resolve disputes without a court trial.

When the mediation process began in March this year, he says his family resolved issues that had brewed for over three years in two sittings.

"My children realised they had been misled and what we had was a misunderstanding. They could not believe that I had given majority of my shares to them," he says.

Since then, Ondiek says their lives have changed for the better, adding that they currently help each other in running family affairs.

Elsewhere, a 1990 succession case was similarly resolved in one sitting. The case was in relation to Kedong Ranch shares owned by a foreigner.

According to court records, the foreigner's wives, his children and grandchildren had been entangled in a heated inheritance court battle.

Deputy Registrar in charge of Mediation, Margaret Kyalo, says the family finally recorded consent on June 17 this year following a successful mediation process.

"It saved them time, money, emotional and physical pain they would have endured if they continued with the case in court," says Kyalo.

The Deputy Registrar says mediators resolve succession disputes, land issues, employment and civil cases. According to Kyalo, in mediation, warring parties are allowed to speak freely, unlike a court set-up where engagement is limited.

"Mediation was created to help resolve both physical and emotional disputes because parties come up with solutions themselves. In the end everyone wins," she says.

Justin Nyetete, chairperson of mediators in Nakuru, says there are over 100 mediators in the county.

"Judges and magistrates decide issues, but we do more than that; we resolve them," Nyetete said, adding that cases are required to be resolved within 60 days.

According to data seen by The Saturday Standard, since mediation was introduced in Nakuru in 2019, 105 out of 370 cases referred to mediators have been resolved.

Further, resolved cases increased from 22.4 per cent in 2019 to 44.2 per cent in 2022.

However, lawyer Kipkoech Ngetich says while lawyers support mediation and other ADR processes, there are concerns the system is an experiment which may collapse due to lack of support.

"The Judiciary does not have registrars specifically employed for mediation. The ones available also serve as registrars of the high courts," he says, adding that there is minimal infrastructure, personnel and funds to run mediation processes.

Justice Joel Ngugi said judges decide cases based on evidence alone. He, however, said this strategy may not help in terms of relieving emotional burdens and torture suffered by parties involved in a case.

"Events such as killings, lynching and anger show the society is sick. Even if cases are brought to court, the society will still be sick. We need to solve the root causes of disputes," said Justice Ngugi.

He noted that courts should only exist as institutions of last resort. Adding that courts are currently overloaded with cases, and that hiring more judges and magistrates will not help ease the backlog.