Mediation in Kenya and Why Courts Uphold Mediation Agreements
Mediation has become an important component of Kenya’s justice system as part of the broader framework of Alternative Dispute Resolution (ADR). The Constitution of Kenya 2010 recognizes the importance of resolving disputes through mechanisms other than traditional litigation, and the Courts have increasingly encouraged parties to settle their disputes amicably. One of the ways this has been implemented is through court-annexed mediation, which allows parties to negotiate and reach mutually acceptable solutions with the assistance of a neutral mediator. Kenyan Courts have consistently demonstrated a strong commitment to upholding mediation agreements in order to protect the integrity of the mediation process and promote efficient dispute resolution.
The constitutional foundation of mediation in Kenya is found in Article 159(2)(c) of the Constitution, which requires Courts to promote alternative dispute resolution mechanisms including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. This constitutional directive reflects a recognition that the adversarial court process is not always the most effective way to resolve disputes. Mediation, in particular, provides parties with an opportunity to resolve their disagreements in a less formal, less expensive, and more collaborative environment. Through dialogue and negotiation, parties are able to craft solutions that reflect their interests and circumstances rather than having a decision imposed upon them by a court.
The Courts’ commitment to protecting mediation outcomes was recently demonstrated in Susy Ngina Chivini v Haron Karungani Juma, Civil Case No. E012 of 2023, decided by the High Court at Kitale. In that case, the dispute concerned matrimonial property, which had a three-bedroom house built on it. The matter had initially been referred to court-annexed mediation, where the parties met and negotiated a settlement. The parties subsequently signed a mediation settlement agreement on 19th June 2025, and the agreement was filed in court and adopted.
After the agreement had been adopted by the court, the applicant later filed an application seeking to set it aside and to have the matter heard afresh by the court. The applicant argued that upon reviewing the agreement she realized that selling the property would negatively affect her children, one of whom lived in the house. She therefore urged the court to set aside the mediation agreement and allow the dispute to proceed to full hearing.
The High Court declined the application and dismissed it. In its reasoning, the court emphasized that mediation agreements are binding once they are voluntarily entered into by the parties. The court explained that a mediation settlement agreement operates in the same way as a contract. Consequently, such an agreement cannot be set aside simply because one party later becomes dissatisfied with its consequences.
The court further stated that mediation agreements can only be invalidated on limited legal grounds similar to those that apply to contracts. These grounds include fraud or misrepresentation, duress or coercion, fundamental mistake, illegality or violation of public policy, and lack of legal capacity such as minority or mental incapacity. In the absence of any of these factors, the court will ordinarily uphold the agreement. In the Chivini case, the applicant did not provide evidence demonstrating any of these grounds. Although she informally suggested that she had felt intimidated during mediation, she did not swear an affidavit to support that allegation. The court therefore concluded that the agreement had been entered into voluntarily by both parties.
The court also addressed the applicant’s argument concerning the welfare of the children. It observed that issues relating to children’s rights are governed by a separate legal framework and may be addressed through appropriate proceedings under children’s law. The fact that the applicant later realized the implications of the agreement for her children was not sufficient to invalidate the settlement. The court further noted that when the applicant initially filed the case she had sought the valuation, sale, and distribution of the property according to each party’s contribution, which was consistent with the terms of the mediation agreement.
This decision highlights an important policy consideration underlying the judiciary’s approach to mediation. The success of mediation depends on the certainty and finality of the agreements reached by parties. If Courts were to allow parties to easily withdraw from mediation settlements after signing them, the credibility of mediation as a dispute resolution mechanism would be undermined. Parties would have little incentive to negotiate in good faith if they could later disregard the agreements they reached. By enforcing mediation agreements, Courts reinforce public confidence in the mediation process and ensure that it remains a viable alternative to litigation.
Moreover, upholding mediation agreements helps to achieve several important objectives of the justice system. It promotes efficiency by reducing the number of cases that proceed to full trial. It also saves time and costs for both litigants and the Courts. In addition, mediation often preserves relationships between parties because it encourages cooperation and mutual understanding rather than adversarial confrontation.
The decision in Chivini v Juma therefore serves as an important reminder to litigants that mediation is a serious process whose outcomes carry legal consequences. Parties who participate in mediation must carefully consider the terms of any settlement agreement before signing it. Once an agreement is voluntarily entered into and adopted by the court, it becomes binding and enforceable, and Courts will be reluctant to interfere with it unless compelling legal grounds are established.
In conclusion, mediation has become an integral part of Kenya’s justice system, supported both by the Constitution and by judicial practice. Courts consistently uphold mediation agreements in order to safeguard the effectiveness and credibility of the mediation process. The ruling in Chivini v Juma illustrates the principle that mediation settlements are binding and will only be set aside in exceptional circumstances. This approach ensures that mediation continues to serve its intended purpose of providing efficient, fair, and amicable resolution of disputes.