Resolving Property Disputes Out of Court

Unresolved property disputes lead to numerous criminal activities – murder, arson and actual bodily harm among others

The real estate sector is characterised by on-going relationships or one off transactions most of which are based on contract. The subject matters are typically of high value in absolute money terms or in comparison to a party’s income. Land is the direct or hidden agenda in many disputes involving landlords, tenants, financiers, borrowers, estate agents and family members. Such disputes take long to 10 resolve. No wonder the only request Jesus Christ never granted was to resolve a land dispute (Luke 12:13). He would probably be still walking up and down trying to resolve boundary disputes in the Middle East today!

Land Is A Notoriously Emotive Matter

In Kenya,the problem is compounded by the wide class, gender, regional and generational inequalities and injustices with respect to land ownership and access. Unresolved property disputes lead to numerous criminal activities – murder, arson and actual bodily harm among others. This is hardly surprising, considering that land is a notoriously emotive matter in Kenya.A google search of “land” and “emotive” takes you to the heart of African.The first entry is Zambia. Not Kenya,sorry. Anecdotal evidence suggests that fires in slums and commercial buildings in Kenya are, quite literally.ignited by unresolved disputes. At national level, disputes prevent the effective utilization of land, a valuable resource. Un-attended land is prone to abuse and degradation through deforestation and soil erosion.

Need for ADR

Alternative Dispute Resolution (ADR) is defined as the methods employed to resolve disputes out of court and without resorting to violence. It is a collection of over 10 such procedures, which include mediation, expert determination and arbitration. A mediator is a facilitator. He or she merely facilitates discussion between the parties and does not provide a solution or a decision.

The parties come up with a solution themselves. Mediation is a very flexible. It motivates parties to search both inside and “outside the box” for a solution to their problem. A skilled mediator knows how to steer parties to a solution without getting swallowed into the dispute. The agreement reached by the parties after mediation becomes enforceable in court like any other contract. Kenya owes it very existence after the 2008 post-election violence to ADR. Expert determination is ideal for resolving a dispute that is centred on a single issue of technical nature, for example the position of a boundary line or the rental value of a house.The expert determiner uses his or
her own expertise in the subject field to resolve the matter Members of the landed professions like valuers and land surveyors are well equipped to resolve such matters. At the other extreme of the ADR spectrumis arbitration. An arbitrator listens to the evidence and decides the case like a judge would.

The arbitration procedure itself could be as simple as the parties wish or quite court-like, depending on the wishes of the parties and the complexity of the dispute. The arbitrator’s decision or award is final, binding and as enforceable as a court order The Arbitration Act of 1995 as amended in 2009 is taken directly from a model law developed by the United Nations Commission On International Trade Law (UNCITRAL) in a hugely successful initiative to harmonise arbitration law worldwide. That model law is user-friendly and free of legal jargon. It has been adopted- by Uganda, Rwanda, Germany, Canada,Australia and many other countries. The parties in dispute must agree in advance to submit their problems to ADR. Many professionally prepared leases contain ADR clauses, which provide for determination of specific or general disputes by expert determination or arbitration. Regrettably, many parties rush to court in the heat of the moment without considering the ADR provision.

Well Documented Advantages Over Litigation

ADR has several well documented advantages over litigation. It saves time, money and relationships. It also ensures confidentiality, It is no wonder. then, that ADR is popular even in countries with very efficient courts.
Its amicable nature makes ADR particularly suitable in cases where parties wish, or are forced by circumstances, to continue with their relationship after the resolution of the dispute. Some land disputes involve
neighbours, relatives and business partners who in all likelihood will live or work together for many years later.

ADR is now enshrined in the Constitution of Kenya,which states in s. I59. (2) (c) that “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted”. The Civil Procedure Rules are also now more amenable to ADR following their recent amendment. These developments will hopefully lead to the next logical step: Courts on their own volition will either insist that parties comply with their own existing contractual ADR arrangements or to recommend ADR to the parties even in the absence of prior agreement. Abraham Lincoln advised his countrymen and women centuries ago to: “Discourage litigation. Persuade your neighbours to compromise whenever you can.

Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time”. Dr Willy Mutunga, the Chief Justice and President of the Supreme Court put it more aptly. Responding to Korogocho residents’ pleas for courts to be established in the slum, he advised them to first use community systems, religious institutions, elders and schools to resolve their disputes. ISK has embraced ADR in its own constitution. Article 30 establishes a clear mechanism far resolving internal disputes and provides that “disputes which cannot be internally resolved … shall be submitted to arbitration”. ISK iko mbele.