By Peter Muchoki, Okioi Abere, and Elizabeth Wangui
Kenya has made significant strides in embracing Alternative Dispute Resolution (ADR) as a viable complement to the traditional court system. Having its foundation in Article 159(2) of the Constitution, ADR cannot be understated as a critical component of Kenya’s justice system. Its non-adversarial and reconciliatory approach which essentially take cognisance of the real and practical world has made it a preferred method of settling disputes as opposed to the traditional court systems.
Despite the widespread adoption of ADR in Kenya, there remains no single, unified legal framework to regulate and harmonize these mechanisms. The absence of a consolidated law has often resulted in fragmented practices and inconsistencies in application. The proposed Dispute Resolution Bill, 2025, seeks to address this gap by providing a comprehensive legal structure to govern ADR processes, ensuring clarity, uniformity, and enhanced access to justice.
INTRODUCTION
On 27th January 2020, the then Honourable Attorney General (Rtd.) Justice P. Kihara Kariuki initiated the development of the National Alternative Dispute Resolution Policy. A steering committee was appointed and for a period of one year, the committee conducted research and targeted consultations with lead stakeholders and experts in ADR. The exercise culminated in policy proposals that were approved by cabinet on 21st March 2023.
The National Policy on Alternative Dispute Resolution 2024 serves as a unified framework for implementation of ADR in Kenya. Through sessional Paper No.4 of 2024 this policy was approved to actualize the ideals of Articles 1, 10, 48, 67(2)(f), 113, 159(2) and 189(4) through a robust framework for strengthening, guiding and supporting the coordinated growth of ADR practice and uptake in Kenya.
The policy presented the current status of the ADR system in Kenya, and in discerning the problem, identifies challenges, needs and gaps including but not limited to inadequate institutional, legal and policy infrastructure; inadequate governance and regulatory mechanisms. To address this gap in particular, the policy made provision for the enactment of an omnibus Dispute Resolution Act or in the alternative, an autonomous practice-based legislation which shall be the framework legislation for the ADR sector, the Dispute Resolution Bill 2025.
The Dispute Resolution Bill, 2025, represents a transformative shift in Kenya’s legal landscape by institutionalizing and promoting alternative dispute resolution (ADR) mechanisms primarily mediation and conciliation as viable, accessible, and formalized options alongside traditional litigation. Anchored in Article 159(2)(c) and Article 48 of the Constitution, which emphasize alternative justice and access to justice for all, the Bill sets a comprehensive legal framework for the delivery, regulation, and institutional support of ADR processes.
The Dispute Resolution Bill, 2025, gives life and form to the National Policy on Alternative Dispute Resolution 2024 by translating its principles into an enforceable legal framework. While the policy laid the foundation for promoting ADR mechanisms as a means to enhance access to justice and reduce the burden on courts, it lacked the binding force necessary for uniform implementation. The Bill remedies this by outlining clear procedures, standards, and institutional frameworks for mediation, court annexed mediation, and conciliation, thereby ensuring that the policy’s objectives are not merely aspirational but practically attainable.
Objectives and Guiding Principles
The Bill is premised on key objectives, that is ,to operationalize constitutional provisions on ADR, to establish effective, fair, and accessible means of resolving disputes outside formal courts, to institutionalize the ADR framework through the establishment of a central oversight body, the National Dispute Resolution Council (NDRC)and to enhance public awareness and participation in ADR.
The foundational principles that govern the application of the Bill include inclusivity of parties to participation in ADR processes, Confidentiality of proceedings, and Expediency in resolving disputes.
Establishment of the National Dispute Resolution Council (NDRC)
The Bill seeks to establish the NDRC, an unincorporated body tasked with overseeing the entire ADR ecosystem in Kenya. Its composition is multidisciplinary, drawing representatives from the Judiciary, Office of the Attorney-General, professional bodies, religious groups, and consumer organizations.
Clause 6 of the Bill provides the functions of the NDRC as follows :
- Accrediting and regulating bodies offering mediation and conciliation services.
- Registering practitioners such as mediators and conciliators.
- Developing standards and codes of practice.
- Enhancing linkages between ADR and formal judicial systems.
- Driving public awareness and professional training among them, provide advisory and consultancy services in ADR matters and undertake research in ADR.
- Determining the fees and other charges payable with respect to services offered in relation to its mandate.
In charting a new path to promote access to justice , the Council shall have the mandate to establish Practice Area Committees that will be created for areas such as arbitration, mediation, conciliation, construction adjudication, and community-based resolution mechanisms.
Mediation Mechanism
Part three and four of the Bill comprehensively defines and governs both voluntary mediation and court-annexed mediation respectively.
The mediation provisions in the Dispute Resolution Bill, 2025, introduce a more structured and coherent framework for handling disputes by clearly defining the process, roles, and even the performance of a mediated settlement agreement. Unlike the previously informal and fragmented approaches to mediation, the Bill establishes standardized procedures and enforcement mechanisms for settlement agreements, thereby enhancing consistency, accountability, and confidence in the mediation process.
The Bill further strengthens the mediation process by including a specific clause outlining the essential elements that a mediation agreement must contain. Clause 21 of the Bill primarily provides the contents of a mediation agreement. This serves as a critical guide for parties who wish to incorporate mediation within their dispute resolution clauses, ensuring clarity, enforceability, and alignment with statutory requirements. By providing this level of detail, the Bill not only standardizes mediation agreements but also promotes confidence among parties in adopting mediation as a preferred method of resolving disputes.
The Bill also provides clear provisions on the appointment, obligations, and withdrawal of a mediator, ensuring transparency and accountability throughout the mediation process. The provisions outlined are designed to safeguard the interests of all parties and uphold the credibility of mediation as an effective dispute resolution mechanism.
The Bill further reinforces the effectiveness of mediation by providing that a mediation agreement shall be performed within 30 days or within any other period agreed upon by the parties in the settlement agreement. In the event of non-performance within the stipulated timeline, a party is entitled to apply to the High Court for the registration of the agreement as a judgment of the court. Once registered, the agreement is enforceable in the same manner as a court decree, thereby giving mediation outcomes the necessary legal force and ensuring compliance by all parties involved.
The Bill provides for voluntary mediation (Part III) and court-annexed mediation (Part IV). While mediation under Part III allows parties greater autonomy in selecting mediators and designing the mediation process, court-annexed mediation operates under judicial supervision with structured timelines and court-appointed mediators. Despite these differences, the ultimate objective of both mechanisms remains the same: to promote access to justice through cost-effective, efficient, and structured dispute resolution processes that reduce case backlogs and encourage amicable settlements.
Conciliation Framework
Conciliation is defined as a voluntary, party-driven process aided by one or more conciliators to explore solutions collaboratively.
The salient features provided for in the Bill include; appointment of independent and impartial conciliators, appointed either by parties or conciliation bodies.
Under conciliation, the Bill clearly sets out the essential components that a conciliation agreement must contain. This provision serves as a crucial guideline for parties opting for conciliation, ensuring that the agreements are comprehensive, legally sound, and enforceable. By prescribing these requirements, the Bill standardizes the practice of conciliation, enhances certainty in its application, and strengthens confidence in this ADR mechanism as a viable alternative to litigation.
The Bill gives guidelines on the appointment of a conciliator either by the parties or through a conciliation body; duration and place of conciliation meetings; authentication of settlement agreements; termination of conciliation proceedings and cost and fees of conciliators.
Regulation, Accreditation, and Oversight
The Bill provides for strict accreditation of dispute resolution bodies, setting clear standards and requirements to ensure professionalism and accountability within the ADR framework. Accredited bodies are subject to ongoing compliance obligations, and the Bill empowers the relevant authority to suspend or revoke accreditation in cases of misconduct, non-compliance, or breach of ethical standards. These measures aim to uphold the integrity of ADR processes and protect parties from unqualified or unethical practitioners, thereby reinforcing confidence in the system.
The NDRC will issue regulations concerning Professional standards,accreditation procedures,Training and certification, Fees and remuneration structures.
Confidentiality and Legal Protections
The aspect of confidentiality in the dispute resolution mechanisms cannot be gainsaid, it is a cornerstone of the Bill. Mediation and conciliation communications are inadmissible in court unless permitted under narrow exceptions (e.g., fraud, public policy, or statutory requirements). Mediators, conciliators, and ADR bodies are protected from personal liability when acting in good faith.
Conclusion
The Dispute Resolution Bill, 2025, marks a pivotal evolution in Kenya’s justice system by offering structured, affordable, and expedient alternatives to litigation. Through the creation of a national council, the formalization of mediation and conciliation, and a strong regulatory backbone, the Bill not only aligns with constitutional values but also promises to ease court burdens and foster a culture of dialogue and collaboration in dispute settlement. Once enacted, it is poised to be a critical pillar in delivering justice that is accessible, efficient, and truly people centred.