The Civil Procedure (Court-Annexed Mediation) Rules
These Rules may be cited as the Civil Procedure (Court-Annexed Mediation) Rules.
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- Jurisdiction
- Kenya
- Instrument
- Notice
- Citation
- Legal Notice 145 of 2022
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- Undated source snapshot
- Language
- en
Source attribution: Source: Kenya Law
Statute overview
About this statute
These Rules may be cited as the Civil Procedure (Court-Annexed Mediation) Rules. Defines terms used in the Rules (interpretation/definitions for mediation-related terms). The Rules apply to any case and to any private settlement agreement presented before court for adoption, recognition and enforcement. A court implementing the Court-Annexed Mediation Programme must establish a Mediation Registry. When a case is referred to mediation the court must notify the parties and their advocates within seven days after screening; parties (or their advocates) must file a case summary within seven days of receipt; after filing a party must serve the mediator and other parties immediately. The court and mediator may proceed even if a party has not filed a case summary.
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Provisions of The Civil Procedure (Court-Annexed Mediation) Rules
Showing 57 of 57
Part I
PRELIMINARY
- 1
PRELIMINARY - 1. Citation
AI-assisted research summary: These Rules may be cited as the Civil Procedure (Court-Annexed Mediation) Rules.
Section 1. Citation Section These Rules may be cited as the Civil Procedure (Court-Annexed Mediation) Rules. - 2
PRELIMINARY - 2. Interpretation
AI-assisted research summary: Defines terms used in the Rules (interpretation/definitions for mediation-related terms).
Section 2. Interpretation Section In these Rules, unless the context otherwise requires— "accredited mediator" means a person whose name is enlisted in the Committee’s register of accredited mediators; "case" means proceedings in court commenced in any manner prescribed by law; "court" means the High Court, Environment and Land Court, Employment and Labour Relations Court, and subordinate court as defined under Article 169(1) of the Constitution; "court record" includes the physical file and pleadings or documents contained therein, and the electronic or digital file thereof; "filing" includes the physical filing of documents at the mediation registry and electronic filing by uploading documents onto the official Judiciary portal designated for that purpose; "mediation" means the informal and non-adversarial process conducted physically or virtually where a mediator encourages and facilitates the resolution of a dispute between two or more parties but does not include any attempt by a judge or magistrate to settle a dispute within the course of judicial proceedings; "Mediation Deputy Registrar" means a Deputy Registrar designated by the court to provide administrative support and manage the court-annexed mediation programme at that court and includes a magistrate, Kadhi or other officer; "Mediation Registrar" means the person appointed by the Chief Justice under section 59A(3) of the Act; "private settlement agreement" means a settlement agreement arising out of a mediation process conducted by a qualified mediator in respect of a dispute that is not the subject of a pending court case; "qualified mediator" means a mediator whose name is enlisted on the Committee’s register of qualified mediators"; "screening" means the process by which a screening officer reviews a case to determine its suitability for referral to mediation; "screening officer" means a Mediation Deputy Registrar or other officer of the court authorised to screen cases; and "settlement agreement" means a written and signed agreement arising out of a mediation process and includes a partial settlement. - 3
PRELIMINARY - 3. Application
AI-assisted research summary: The Rules apply to any case and to any private settlement agreement presented before court for adoption, recognition and enforcement.
Section 3. Application Section These Rules shall apply to any case, and any private settlement agreement presented before court for adoption, recognition and enforcement. - 4
PRELIMINARY - 4. Mediation registries
AI-assisted research summary: A court implementing the Court-Annexed Mediation Programme must establish a Mediation Registry.
Section 4. Mediation registries Section 4(1) Where a court is implementing the Court-Annexed Mediation Programme, it shall establish a Mediation Registry. Section 4(2) The Mediation Registry established under subrule (1) shall be headed by a Mediation Registrar or such other officer designated by the court for that purpose.
Part II
COURT-ANNEXED MEDIATION PROCESS
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COURT-ANNEXED MEDIATION PROCESS - 10. Notification of referral to mediation
AI-assisted research summary: When a case is referred to mediation the court must notify the parties and their advocates within seven days after screening; parties (or their advocates) must file a case summary within seven days of receipt; after filing a party must serve the mediator and other parties immediately. The court and mediator may proceed even if a party has not filed a case summary.
Section 10. Notification of referral to mediation Section 10(1) Where a case is referred to mediation, the court shall notify the parties and the parties’ advocates within seven days after screening in Form 1 as set out in the Schedule. Section 10(2) Each party or party’s advocate shall, within seven days after receipt of the notification under subrule (1), file a case summary in Form 2 as set out in the Schedule. Section 10(3) A party shall, immediately after filing the case summary, serve upon the mediator and all other parties: Provided that the court and mediator shall not be prevented from proceeding with the mediation process only for the reason that a party has not filed a case summary. - 11
COURT-ANNEXED MEDIATION PROCESS - 11. Service of process
AI-assisted research summary: Notices and other process must be served on a party and their advocates or authorised representative at the address provided to the court when the case is filed; service may be physical, electronic, or by post; the court and the mediator must keep proof of service.
Section 11. Service of process Section 11(1) Each notice and other process shall be served upon a party and the party’s advocates or authorised representative through the address provided to the court at the time of the filing of the case or case summary. Section 11(2) Service shall be effected physically, electronically or by post in accordance with the relevant procedural rules, and the court and the mediator shall maintain proof of service upon the parties. - 12
COURT-ANNEXED MEDIATION PROCESS - 12. Mediators under the programme
AI-assisted research summary: Mediation must be conducted by an accredited mediator who is active on the Committee’s register; the Committee must maintain and publish the register; mediators must follow a Code of Conduct; complaints and annual performance reports must be sent to the Committee.
Section 12. Mediators under the programme Section 12(1) Mediation under this Part shall be conducted by an accredited mediator whose status is active on the register of accredited mediators maintained by the Committee. Section 12(2) The Committee shall ensure that the register of mediators is up to date upload it on the official Judiciary website and other platforms. Section 12(3) Each mediator shall subscribe to and be bound by a Mediators’ Code of Conduct as may be prescribed by the Committee and be subject to the Committee’s disciplinary process. Section 12(4) Each court station participating in the Court Annexed Mediation Program shall forward any complaint against a mediator to the Committee within seven days after receipt of the complaint. Section 12(5) The Mediation Deputy Registrar or the designated officer of the court shall forward to the Committee the annual confidential report on the performance of each mediator that is attached to that court for purposes of improving the program. - 13
COURT-ANNEXED MEDIATION PROCESS - 13. Appointment of mediators and allocation of cases
AI-assisted research summary: Sets procedures and timelines for appointing mediators, party selection of mediators, notifications (Forms 3 and 4), and allocation and distribution of cases by the Mediation Deputy Registrar and the court.
Section 13. Appointment of mediators and allocation of cases Section 13(1) The Mediation Deputy Registrar shall, within seven days after the referral of a case to mediation, appoint a mediator from the register of accredited mediators and immediately thereafter notify the appointed accredited mediator. Section 13(2) The notification under subrule (1) shall be Form 3 as set out in the Schedule, and shall be copied to the parties and the parties’ advocates. Section 13(3) The mediator shall, within seven days after the notification of appointment under subrule (1), notify the court whether he or she accepts or declines the appointment in Form 4 as set out in the Schedule. Section 13(4) The parties may, by mutual consent, select a mediator from the register of accredited mediators and notify the court within seven days after receipt of the notification under rule 10 (1). Section 13(5) Before making a decision to select a mediator under subrule (4), the parties may request the Committee to provide further or other information about the nominated mediator. Section 13(6) The mediator selected by the parties under subrule (4) shall supersede any appointment by the court under subrule (1) and the court shall immediately appoint and notify such mediator within five days after receipt of the notification from the parties. Section 13(7) Where a mediator declines an appointment, the court shall immediately appoint another mediator and issue notification within five days of receipt of the notice under subrule (3). Section 13(8) The Mediation Deputy Registrar shall allocate cases to mediators in chronological order according to the date on which an accredited mediator’s name was added to the register of accredited mediators. Section 13(9) Where the Mediation Deputy Registrar does not allocate a case to a mediator in accordance with subrule (7), he or she shall note on the mediation file and the electronic register the reasons for the decision. Section 13(10) In order to ensure the efficient running of the Court Annexed Mediation Program, the Mediation Deputy Registrar shall distribute cases equitably amongst the mediators in accordance with their skills, performance, experience and availability. - 14
COURT-ANNEXED MEDIATION PROCESS - 14. Court mentions
AI-assisted research summary: Section 14 requires the court to list a matter for mention within fourteen days of appointing a mediator and sets procedures for mentions, including directions, informing parties, possible virtual mentions, ordering mediator attendance, and requests to list matters from mediator or parties.
Section 14. Court mentions Section 14(1) The court shall, within fourteen days after the appointment of a mediator, list the matter for mention before the Mediation Deputy Registrar or a designated officer. Section 14(2) A mention under subrule (1) may be conducted virtually. Section 14(3) Where the court deems it necessary for the efficient and expeditious disposal of a particular case or at the request of any of the parties, the court may direct or order the attendance of the mediator during the mention. Section 14(4) The court shall, during the mention, give directions as to the general conduct of the mediation including filing of case summaries and the expected conduct of the parties during the mediation. Section 14(5) At the mention, the court shall inform the parties of the requirement to attend mediation sessions, participation in the mediation process in good faith, and the consequences of non-compliance. Section 14(6) The mediator or a party to the dispute may request that a matter pending in mediation be listed for mention before the court in order to address a particular issue that may or is likely to delay, prejudice or impede its resolution. - 15
COURT-ANNEXED MEDIATION PROCESS - 15. Commencement of mediation
AI-assisted research summary: The mediator must hold the first mediation session within seven days of notification; the mediator must serve the notice of that date on the parties, their advocates and the court; and where the case was mentioned under rule 14(1) the parties and mediator must agree a suitable date during or after the mention.
Section 15. Commencement of mediation Section 15(1) The mediator shall conduct the first mediation session within seven days after the date of notification of appointment with or without the mention under rule 14(1). Section 15(2) The notice of the date of the first mediation session shall be in Form 5 as set out in the Schedule and shall be served by the mediator upon the parties, parties’ advocates and the court. Section 15(3) Where the case was mentioned under rule 14(1), the parties and mediator shall agree on a suitable date for the first mediation session during or after the mention. - 16
COURT-ANNEXED MEDIATION PROCESS - 16. Attendance at mediation
AI-assisted research summary: Parties and their advocates or representatives must attend every mediation session and participate in good faith; parties may be accompanied by an advocate or representative; the representative's personal details and role must be disclosed at the first mediation session.
Section 16. Attendance at mediation Section 16(1) Parties or parties’ advocates or representatives shall attend each mediation session and participate in the mediation process in good faith. Section 16(2) The parties may be accompanied by an advocate or a representative. Section 16(3) The personal details and role of the representative shall be disclosed to all parties at the first mediation session. - 17
COURT-ANNEXED MEDIATION PROCESS - 17. Representatives of natural persons
AI-assisted research summary: If a natural person is represented in mediation by a non-advocate, the representative must present a written authority signed by the party at the first mediation session; that authority must be in Form 6.
Section 17. Representatives of natural persons Section 17(1) Where a natural person participates in the mediation through a representative who is not an advocate, the representative shall, at the first mediation session, present to the mediator written authority signed by the party indicating that the representative has been authorised to take part in the mediation process and execute a settlement agreement on behalf of that party. Section 17(2) The authority under subrule (1) shall be in Form 6 as set out in the Schedule. - 18
COURT-ANNEXED MEDIATION PROCESS - 18. Representatives of corporations, partnerships, the government, government agencies or entities
AI-assisted research summary: If a party to mediation is a corporation, partnership, government or government agency/entity, an officer authorized to bind that party must attend all mediation sessions and at the first session present a written authorization (Form 7) showing authority to enter into a binding settlement.
Section 18. Representatives of corporations, partnerships, the government, government agencies or entities Section 18(1) Where one of the parties is a corporation, partnership, the government, government agency or entity, an officer duly authorized to represent and bind that party shall attend each mediation session and, at the first mediation session, present the mediator with a written authorization indicating that the officer has been authorized to enter into a binding settlement agreement on behalf of the corporation, partnership, the government, government agency or entity. Section 18(2) The written authorisation under subrule (1) shall be in Form7 as set out in the Schedule. - 19
COURT-ANNEXED MEDIATION PROCESS - 19. State Counsel deemed to be authorised to bind Attorney-General
AI-assisted research summary: State Counsel and other officers appearing for the Attorney-General are deemed to have express authority to bind the Office of the Attorney-General or the ministry, government department, agency or other organ on whose behalf they appear.
Section 19. State Counsel deemed to be authorised to bind Attorney-General Section A State Counsel or other officer appearing on behalf of the Attorney-General shall, unless the contrary is confirmed, be deemed to have the express authority to bind the Office of the Attorney-General or the ministry, government department, agency or other organ on whose behalf the State Counsel appears. - 20
COURT-ANNEXED MEDIATION PROCESS - 20. Adjournments
AI-assisted research summary: The mediator may adjourn a mediation session if a party fails to attend; if rescheduled the mediator must notify the parties of the new date, time and venue and file a copy of that notice with the court.
Section 20. Adjournments Section 20(1) The mediator may adjourn a mediation session to another date where a party fails to attend. Section 20(2) Where a mediation session has been rescheduled under subrule (1), the mediator shall issue the parties with a notice indicating the new date, time and venue for the mediation session and file a copy of the notice with the court. - 21
COURT-ANNEXED MEDIATION PROCESS - 21. Attendance sheet
AI-assisted research summary: The mediator and parties attending a mediation session must sign an attendance sheet provided by the mediator and file it with the court.
Section 21. Attendance sheet Section 21(1) The mediator and the parties attending a mediation session shall sign an attendance sheet provided by the mediator and file the attendance sheet with the court. Section 21(2) The attendance sheet under subrule (1) shall be in Form 8 as set out in the Schedule and shall be made readily available online by the court and in hard copies places designated by the court for that purpose. - 22
COURT-ANNEXED MEDIATION PROCESS - 22. Mediator to guide mediation process
AI-assisted research summary: The mediator must provide guidance on the mediation process as may be appropriate in each case.
Section 22. Mediator to guide mediation process Section The mediator shall provide guidance on the mediation process as may be appropriate in each case. - 23
COURT-ANNEXED MEDIATION PROCESS - 23. Venue and time of conducting mediation
AI-assisted research summary: Section 23 sets where and when mediation under these Rules may be conducted and assigns specific duties to the Mediation Deputy Registrar and the mediator, including assistance at court premises, not charging parties for sessions at the mediator’s offices, ensuring attendance forms are signed, and ensuring venue neutrality and security arrangements when needed.
Section 23. Venue and time of conducting mediation Section 23(1) Mediation proceedings under these Rules shall be conducted virtually or in person at the court premises or such other place as the mediator and the parties may agree. Section 23(2) Where mediation is conducted at the court premises, the Mediation Deputy Registrar shall give necessary facilitative assistance to the mediator and the parties. Section 23(3) Upon notice to the court, the entire mediation process or a session thereof may be conducted at the mediator’s offices or such other venue, on any day or time as may, by mutual consent, be agreed upon by the parties. Section 23(4) Where a mediation session is conducted at the mediator’s offices, the mediator shall not inconvenience the parties or charge any fees or expense to the parties or the court, and shall ensure that the parties sign attendance forms in respect of such session. Section 23(5) Where a mediation session is conducted in person at such other venue as provided for under subrule (3), the mediator shall ensure the venue’s neutrality and, if need be, make arrangements with the court for security. - 24
COURT-ANNEXED MEDIATION PROCESS - 24. Agreement to mediate
AI-assisted research summary: At the start of mediation, the mediator must read and explain any agreement to mediate to the parties and their advocates or representatives and require them to sign it.
Section 24. Agreement to mediate Section 24(1) At the commencement of the mediation session, the mediator shall read and explain to the parties and the parties’ advocates or representatives the terms set out in an agreement to mediate, if any, and require the parties and the parties’ advocates or representatives to sign the agreement. Section 24(2) The agreement to mediate shall be in the prescribed Form 9 as set out in the Schedule. - 25
COURT-ANNEXED MEDIATION PROCESS - 25. Confidentiality and inadmissibility
AI-assisted research summary: Participants in court-annexed mediation must sign and be bound by a confidentiality agreement; mediation communications are confidential and generally inadmissible, subject to limited disclosure exceptions; courts must set procedures for disclosures; mediators and participants generally cannot be compelled to testify or produce mediation records; recording sessions electronically is prohibited; breach is contempt of court.
Section 25. Confidentiality and inadmissibility Section 25(1) Any person taking part in a mediation process under these Rules shall be required by the mediator to execute a confidentiality agreement and shall be bound by the terms of such agreement. Section 25(2) The confidentiality agreement shall be in Form 10 as set out in the Schedule. Section 25(3) Any communication during mediation including the mediator’s notes shall be confidential and shall not be admissible in evidence in any ongoing or subsequent legal proceedings. Section 25(4)(a) that person is required by law to disclose the information; or Section 25(4)(b) the information relates to child abuse, child neglect, defilement, domestic violence, a sexual offence or any related criminal or illegal purpose. Section 25(5) The court shall put measures in place to guide the procedure on the making and processing of disclosures under subrule (4). Section 25(6) Subject to subrule (4), the mediator or any person present or appearing at a mediation session may not be summoned, compelled or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law. Section 25(7) No person present or appearing at a mediation session whether in person or through a virtual platform shall use any electronic device of any nature to record the mediation session. Section 25(8) Any breach of this rule shall constitute contempt of court. Section 25(9) This rule shall not apply to any settlement agreement, decree or order arising from the mediation. - 26
COURT-ANNEXED MEDIATION PROCESS - 26. Persons who may attend mediation session
AI-assisted research summary: Only the parties to a dispute and their advocates or representatives may attend mediation sessions, with limited additional persons allowed under specified conditions; certain attendees must sign a confidentiality agreement.
Section 26. Persons who may attend mediation session Section 26(1) At every mediation session, save as otherwise agreed, only the parties to the dispute and the parties’ advocates or representatives shall have the right to attend. Section 26(2) Save as otherwise agreed at the initial mediation session, each party to the dispute appearing without an advocate shall have the right to be represented by one representative. Section 26(3) A law firm representing a party during a mediation shall, at any given time, allocate that case to a particular advocate or advocates within the firm. Section 26(4)(a) a mediator enlisted on the Committee’s list of mediators under the mentorship program: Provided that such mediator attending by virtue of this sub- rule shall have been attached to the mediator appointed for that case as his or her mentor and present a letter from the Registrar indicating that he or she is under a mentorship program in accordance with the Committee’s Mentorship Guidelines; Section 26(4)(b) an advocate holding brief; and Section 26(4)(c) a pupil attached to an advocate on record for a party: Section 26(5) Any person attending a mediation session under subrule (4) shall be bound by the rules of confidentiality set out in rule 25 and, at his or her first appearance, sign the confidentiality agreement. Section 26(6) The mediator shall ensure that any person attending a mediation session is authorized to do so and that the requisite consent has been obtained from the parties where necessary. - 27
COURT-ANNEXED MEDIATION PROCESS - 27. Role of advocate in mediation
AI-assisted research summary: An advocate must ensure that the party respects notices by the mediator and court.
Section 27. Role of advocate in mediation Section ensure that the party respects the notices by the mediator and court; - 28
COURT-ANNEXED MEDIATION PROCESS - 28. Non-compliance
AI-assisted research summary: Mediators must attempt to continue mediation; if parties fail to comply the mediator must file a Form 11 certificate of non-compliance after making sufficient effort; the mediator may request a mention for directions; upon filing the certificate the Mediation Deputy Registrar or designated officer must refer the file back to the trial court; parties who fail to comply may be cited for contempt.
Section 28. Non-compliance Section 28(1) A party or the party’s representative who fails to comply with any of the mediator’s directions, consistently fails to attend mediation sessions or engages in deliberate misconduct may be cited for contempt of court and dealt with in the manner provided for under rule 29. Section 28(2) The mediator may, in the first instance, request that the case be listed for mention before the Mediation Deputy Registrar or other officer designated for that purpose for directions aimed at facilitating the uninterrupted continuation of the mediation process. Section 28(3) If, after several attempts by the mediator to continue the mediation process forward, a party fails to comply, the mediator shall file a certificate of non-compliance in Form 11 as set out in the Schedule. Section 28(4) The Mediation Deputy Registrar or such other designated officer shall, upon the filing of the certificate of non-compliance, refer the file back to the trial court. Section 28(5) It shall be the obligation of the mediator to satisfy himself or herself that sufficient effort has been made to continue the mediation process without success before filing a certificate of non-compliance under subrule (4). Section 28(6) In assessing whether this obligation was met by the mediator, the court shall consider, among other things, the attempts made at contacting the parties, the number of sessions held if any, and the attempt by the mediator to explain the process to the parties. - 29
COURT-ANNEXED MEDIATION PROCESS - 29. Consequences of non-compliance
AI-assisted research summary: The court may order a party in default to pay a penalty fee unless the party satisfies the court that there was a good cause for non-compliance.
Section 29. Consequences of non-compliance Section order the party in default to pay a penalty fee as the court may deem fit unless the party satisfies the court that there was a good cause for non-compliance; - 30
COURT-ANNEXED MEDIATION PROCESS - 30. Conclusion of the mediation process
AI-assisted research summary: Where a settlement was reached, file the settlement agreement and the mediator’s report.
Section 30. Conclusion of the mediation process Section filing of the settlement agreement and mediator’s report where a settlement was reached; - 31
COURT-ANNEXED MEDIATION PROCESS - 31. Further mediation
AI-assisted research summary: After mediation ends, the court may order further mediation if necessary and with the parties' consent.
Section 31. Further mediation Section Upon conclusion of the mediation, the court may, where necessary and with the consent of the parties, make an order for further mediation. - 32
COURT-ANNEXED MEDIATION PROCESS - 32. Mediation settlement agreement
AI-assisted research summary: If a mediation yields a settlement agreement it must be in Form 12 and signed by the parties, their advocates or representatives, and the mediator; the mediator must file the agreement in court and give each party (or their advocate/representative) a copy within ten days after the mediation ends.
Section 32. Mediation settlement agreement Section 32(1) Where there is a settlement agreement resolving some or all of the issues in dispute, such agreement shall, with the necessary modifications, be in Form 12 as set out in the Schedule and be duly signed by the parties, the parties’ advocates or representatives, and the mediator. Section 32(2) The mediator shall, within ten days after the conclusion of the mediation, file the settlement agreement in court and provide each party or party’s advocate or representative with a copy thereof. - 33
COURT-ANNEXED MEDIATION PROCESS - 33. Mediator’s report
AI-assisted research summary: The mediator must file a report within ten days after the conclusion of the mediation.
Section 33. Mediator’s report Section The mediator shall file a report within ten days after the conclusion of the mediation in Form 13 as set out in the Schedule. - 34
COURT-ANNEXED MEDIATION PROCESS - 34. Adoption of settlement agreements
AI-assisted research summary: The Mediation Deputy Registrar or designated officer must, within ten days after the settlement agreement is filed under rule 32, place the settlement agreement before the trial court or other designated officer for adoption; the court may seek further clarification from mediator or parties before adoption.
Section 34. Adoption of settlement agreements Section 34(1) The Mediation Deputy Registrar or other officer designated for that purpose shall, within ten days after the settlement agreement being filed under rule 32, place the settlement agreement before the trial court or other designated officer for adoption. Section 34(2) It shall not be necessary for the parties or the mediator to attend court for purposes of adoption of the settlement agreement and such proceedings may be conducted in chambers or virtually. Section 34(3) Where the court deems it necessary, it may seek further clarification from the mediator, each party or the party’s representative before adopting the settlement agreement. - 35
COURT-ANNEXED MEDIATION PROCESS - 35. Directions on partial settlements
AI-assisted research summary: If parties settle only some issues, the mediator must prepare and file a partial settlement agreement; the court must give directions when adopting it and may account for party requests; unresolved issues directed to trial must be prioritized within 90 days (extendable by up to 30 days).
Section 35. Directions on partial settlements Section 35(1) Where the parties reach a settlement on only some of the issues to the dispute, the mediator shall prepare and file a partial settlement agreement in a similar manner as provided under rule 32. Section 35(2) A partial settlement agreement shall, with necessary modifications, be in Form 14 as set out in the Schedule and concisely state the issues that the parties were able to agree upon and the issues that remain unresolved. Section 35(3) The partial settlement agreement shall, where the parties so request, indicate any specific directions or assistance that the parties would like the court to grant for the expeditious resolution of the remaining issues. Section 35(4) Where the amount of costs payable in the main suit and the party liable to pay were canvassed at the mediation and not agreed upon, the settlement agreement shall be treated as a partial settlement for purposes of this rule. Section 35(5) A partial settlement agreement shall be adopted in the same way as a full settlement agreement but the court shall, at the time of adoption, give appropriate directions regarding the execution of the partial settlement and the expeditious disposal of the issues that remained unresolved. Section 35(6) In giving its directions under subrule (5), the court may take into account any specific request by the parties as envisaged under sub- rule (2). Section 35(7) Where the court directs that the unresolved issues be determined at trial, the court file shall immediately be placed before the court for hearing and determination on priority basis within ninety days from the date the directions are made: Provided that where the matter is not disposed of within the said period, the court shall, for reasons to be recorded, extend the time for a further period not exceeding thirty days. - 36
COURT-ANNEXED MEDIATION PROCESS - 36. Enforcement of settlement agreements
AI-assisted research summary: When a settlement agreement is adopted the court must issue an order or decree in the terms of that agreement; such orders and decrees are enforceable, appeals are barred, and an aggrieved party may move the court for execution or further orders.
Section 36. Enforcement of settlement agreements Section 36(1) Upon the adoption of a settlement agreement, the court shall issue an order or decree in the terms of the agreement. Section 36(2) A decree and an order arising from the adoption of a settlement agreement shall be enforceable as any other order or decree of the court. Section 36(3) No appeal shall lie against a decree or order of the Court arising from a settlement agreement. Section 36(4) A party who is aggrieved by the failure to implement an order or decree arising out of a settlement agreement may move the court for its execution as provided for under the relevant procedural rules or apply for further orders or directions by the court. - 37
COURT-ANNEXED MEDIATION PROCESS - 37. Time
AI-assisted research summary: Time limits under procedural rules do not apply to cases referred to mediation; mediation must be completed within 60 days of mediator notification; the court may extend time by up to 10 days on request; parties may extend by written consent.
Section 37. Time Section 37(1) Pending the conclusion of mediation in accordance with rule 30, the time limits applicable under procedural rules of court shall not apply to cases that are referred to mediation under these Rules. Section 37(2) Mediation proceedings shall take place and be concluded within sixty days from the date that an appointed mediator is notified of his or her appointment to handle the case. Section 37(3) The court may, upon request by the mediator or the parties extend the time for a further period not exceeding ten days having regard to the number of parties or complexity of issues. Section 37(4) Parties may, through a written, duly signed and filed consent, agree to extend the period within which the mediation shall take place. - 38
COURT-ANNEXED MEDIATION PROCESS - 38. Interim measures by the court
AI-assisted research summary: If a matter is pending in mediation, a party may apply to the trial court for interim measures, including a conservatory order.
Section 38. Interim measures by the court Section When a matter is pending in mediation, a party may apply before the trial court for an interim measure including the issuance of a conservatory order. - 39
COURT-ANNEXED MEDIATION PROCESS - 39. Setting aside an order or decree arising out of a settlement agreement
AI-assisted research summary: Applications to set aside orders or decrees from mediation settlement agreements require leave of court; the court must decide such applications on a priority basis within thirty days of filing; only the grounds listed in subrule (3) may be relied on at the hearing without leave.
Section 39. Setting aside an order or decree arising out of a settlement agreement Section 39(1) No application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of court. Section 39(2) An application for leave under subrule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely in setting aside the order or decree. Section 39(3)(a) misconduct, fraud, or a fundamental mistake by the mediator as relates to the mediation proceedings that goes to the core of the matter: Provided that the misconduct, fraud or mistake should not have been known by the applying party at the time of execution of the settlement agreement and should be one which affected the process and outcome of the mediation in such a way that it would be unfair and inequitable to enforce it in its form; Section 39(3)(b) fraud, collusion, or misrepresentation by any party to the mediation (other than the party applying) or any witness or person who took part in the proceedings and whose participation materially affected the outcome; Section 39(3)(c) a fundamental mistake by any or all of the parties to the mediation as to the existence or state of the subject matter, person or thing; or to any set of facts that materially affected the parties’ decision to enter into the subject agreement and which has rendered such agreement unfair and inequitable; Section 39(3)(d) where a party was, at the time of the making of the agreement, under some legal incapacity to take part in the subject mediation proceedings or to conclude and execute a binding settlement; or Section 39(3)(e) where the settlement agreement is invalid under Kenyan or international law, or is or has become incapable of enforcement under Kenyan law. Section 39(4) At the hearing of an application to set aside an order or decree, no party shall, without leave of court, be allowed to canvass any other ground in support of the application other than the grounds specified in subrule (3). Section 39(5) The court shall hear and determine an application under this on priority basis within thirty days after filing. - 40
COURT-ANNEXED MEDIATION PROCESS - 40. Immunity
AI-assisted research summary: Mediators have the same protection and immunity in mediation proceedings as judges, magistrates and judicial officers.
Section 40. Immunity Section A mediator shall, in respect of mediation proceedings, enjoy the same protection and immunity as the immunity granted to judges, magistrates and judicial officers. - 41
COURT-ANNEXED MEDIATION PROCESS - 41. Payment of mediators
AI-assisted research summary: Mediators are entitled to fees when mediation concludes; the Committee determines and regularly reviews the fee scale; if proceedings end via a certificate of non-compliance the mediator gets a prorated fee based on their input.
Section 41. Payment of mediators Section 41(1) Each mediator shall be entitled to payment of a fee upon conclusion of mediation. Section 41(2) The scale of payment of fees to mediators shall be determined and regularly reviewed by the Committee. Section 41(3) Where mediation proceedings are concluded by the filing of a certificate of non-compliance, the mediator shall be entitled to a fee prorated with the mediator’s input in attempting to conduct the mediation process. - 42
COURT-ANNEXED MEDIATION PROCESS - 42. Remuneration of advocates
AI-assisted research summary: The Chief Justice may, by order under section 44 of the Advocates Act, prescribe and regulate advocates' remuneration for mediation; the Chief Justice may consider existing or possible trial fees when doing so; and until fees are prescribed advocates are entitled to charge mediation attendance at the same court attendance rates under the Advocates Remuneration Order.
Section 42. Remuneration of advocates Section 42(1) The Chief Justice may, by order made under section 44 of the Advocates Act ( Cap.16 ), prescribe and regulate the remuneration of advocates representing parties during mediation under these Rules. Section 42(2) In prescribing and regulating the remuneration of advocates under subrule (1), the Chief Justice may take into account the fees already charged by an advocate at the time that a case is referred to mediation and fees which may be charged by the advocate should the case be referred to the trial court for disposal. Section 42(3) Until the prescription of fees under subrule (1), advocates shall be entitled to charge fees for attending at a mediation session at the same rate as fees charged for attendances in court under the Advocates Remuneration Order. - 5
COURT-ANNEXED MEDIATION PROCESS - 5. Referral to mediation
AI-assisted research summary: Courts and parties may refer cases to mediation; screening and written referral orders by specified officials are required for certain cases.
Section 5. Referral to mediation Section 5(1) A court before which a case is being heard may, at any stage before final judgment, refer the case to mediation. Section 5(2) Any case instituted before the coming into operation of these Rules shall be subjected to screening by a screening officer to determine the suitability of the case to referral to mediation. Section 5(3) A case that is determined to be suitable to mediation shall, by order in writing given by the Mediation Registrar, be referred to mediation with or without further orders. Section 5(4) The parties to a case may, by mutual consent, request the court to refer the case to mediation. Section 5(5) Nothing in these Rules shall derogate from the jurisdiction of the court to refer the case to mediation in accordance with section 59B of the Act or to another method of alternative dispute resolution under section 59C. - 6
COURT-ANNEXED MEDIATION PROCESS - 6. Screening
AI-assisted research summary: The screening officer must endorse on the file a direction or order recording that the case has been screened and found suitable or unsuitable for referral to mediation, and must endorse reasons on the file where a case is not suitable.
Section 6. Screening Section 6(1) Each case shall be screened upon the close of pleadings or at any other appropriate stage as the court may determine. Section 6(2) The screening officer shall endorse on the physical or electronic file a direction or order that the case has undergone screening and found to be suitable or unsuitable for referral to mediation. Section 6(3) Where a case is not suitable for referral to mediation, the screening officer shall endorse on the file the reasons thereof. - 7
COURT-ANNEXED MEDIATION PROCESS - 7. Screening criteria
AI-assisted research summary: Screening criteria include the age of the case.
Section 7. Screening criteria Section the age of the case; - 8
COURT-ANNEXED MEDIATION PROCESS - 8. Mediation register
AI-assisted research summary: The court must keep an updated register of all cases referred to mediation.
Section 8. Mediation register Section 8(1) The court shall maintain an updated register of all cases referred to mediation. Section 8(2)(a) the date of referral to mediation; Section 8(2)(b) whether the case was referred to mediation through screening, by consent of parties, or through direct referral by a judge or judicial officer; Section 8(2)(c) the mediation file number; Section 8(2)(d) the court or division of court from which the case was referred; Section 8(2)(e) the case type; Section 8(2)(f) the original case number; Section 8(2)(g) the exact or estimated value of the subject matter; Section 8(2)(h) the names of the parties and the parties’ representatives; Section 8(2)(i) the contact details of the parties and the parties’ representatives; Section 8(2)(j) in the case of a succession matter, name of the deceased person; Section 8(2)(k) the name and contact details of the appointed mediator; Section 8(2)(l) the date of the appointment of the mediator and date of notification; Section 8(2)(m) the reason for the appointment of the mediator if the appointment is done otherwise than from the register of mediators kept by the Committee; Section 8(2)(n) the outcome of the mediation; Section 8(2)(o) the date of filing of the mediator’s report, settlement agreement or non-compliance certificate; Section 8(2)(p) the date when the claim for payment is forwarded; and Section 8(2)(q) any other relevant information about the case and conduct of the mediation. - 9
COURT-ANNEXED MEDIATION PROCESS - 9. Mediation file
AI-assisted research summary: When a case is referred to mediation, the court must open and maintain a mediation file distinct from other court files.
Section 9. Mediation file Section 9(1) Upon the referral of a case to mediation, the court shall cause to be opened and maintained a mediation file in accordance with a system that is distinct from other court files. Section 9(2)(a) a copy of the order referring the case to mediation; Section 9(2)(b) the case summaries; Section 9(2)(c) any interim orders issued by the court regarding of the mediation; Section 9(2)(d) the attendance sheets signed by the parties and the mediator at mediation meetings; Section 9(2)(e) the mediator’s report; and Section 9(2)(f) a copy of the non-compliance report or settlement agreement, as the case may be. Section 9(3) A mediation file shall be confidential and kept at the mediation registry separately from the court file.
Part III
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS
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REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 43. Objective of this Part
AI-assisted research summary: The Rules in this Part aim to enable courts to register, recognize and enforce private settlement agreements.
Section 43. Objective of this Part Section The objective of the Rules under this Part is to give effect to the provisions of Article 159(2)(e) of the Constitution and section 59D of the Civil Procedure Act by providing a framework for the courts to register, recognize and enforce private settlement agreements. - 44
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 44. Recognition and registration of qualified members
AI-assisted research summary: Sets recognition criteria for qualified members and requires the Committee to publish lists of recognized accrediting institutions and qualified mediators; allows the Committee to suspend or disqualify mediators for certain reasons.
Section 44. Recognition and registration of qualified members Section 44(1)(a) possess full accreditation status by the Committee, whether active or not; Section 44(1)(b) be accredited by any other institution recognized by the Committee; or Section 44(1)(c) possess such other or further qualification as may be approved by the Committee. Section 44(2) The Committee shall maintain and publish a list of recognized institutions that may accredit mediators for purposes of recognition under subrule (1). Section 44(3) The Committee shall maintain and publish a list of qualified mediators for purposes of this part indicating, among others; their training and experience, the category or type of disputes that they mediate, as well as their geographical region. Section 44(4) For the purposes of this Part, the Committee may, where any mediator is facing criminal charges, or a disciplinary action before any professional body or tribunal, or for any other sufficient reason, suspend the qualification status of that mediator for a specific period or disqualify such mediator altogether. - 45
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 45. Mediation registry to register private settlement agreement
AI-assisted research summary: Parties assisted by a qualified mediator may present a private settlement agreement to the mediation registry for registration and adoption by the court.
Section 45. Mediation registry to register private settlement agreement Section A private settlement agreement entered into by the parties with the assistance of a qualified mediator may be presented at the mediation registry for purposes of registration and adoption by the court. - 46
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 46. Requirements for the registration of a private settlement agreement
AI-assisted research summary: If a private settlement agreement is reached with the assistance of a qualified mediator or mediators, the mediator(s) should endorse their accreditation or identifying number on the agreement.
Section 46. Requirements for the registration of a private settlement agreement Section have been reached with the assistance of a qualified mediator or mediators who should endorse his or her or their accreditation or other identifying number thereon; - 47
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 47. Presentation for registration
AI-assisted research summary: A mediator may present a private settlement agreement for registration within thirty days after it has been signed; the agreement shall be presented to court as an annexure to an affidavit sworn by the mediator.
Section 47. Presentation for registration Section 47(1) A private settlement agreement may, within thirty days after it has been signed be presented by the mediator for registration to the nearest mediation registry where it was concluded. Section 47(2) The private settlement agreement shall be presented to court for registration as an annexure or attachment to an affidavit duly sworn by the mediator. Section 47(3)(a) that the person presenting was a mediator in the dispute and witnessed the execution of the private settlement agreement; Section 47(3)(b) that the mediation process, including the execution of the private settlement agreement, was voluntary; Section 47(3)(c) that the private settlement agreement complies with the requirements set out at rule 46; and Section 47(3)(d) that the private settlement agreement is not, or is likely not to be, affected by the grounds for setting aside of a settlement agreement under rule 39. - 48
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 48. Registration of private settlement agreements
AI-assisted research summary: When a mediator files a private settlement agreement under rule 47, a court officer designated for that purpose must stamp and endorse the affidavit, the settlement agreement and any annexures.
Section 48. Registration of private settlement agreements Section 48(1) Where a mediator presents a private settlement agreement for registration under rule 47, a court officer designated for that purpose shall endorse the affidavit, the settlement agreement, and any annexures thereto with a stamp of the court. Section 48(2) The assessment of the payable filing fees shall be done in accordance with the scale for the time being applicable to fees chargeable for filing affidavits in other court cases. Section 48(3) Each private settlement agreement shall, upon filing, be serialised and registered in the register of private settlement agreements kept and maintained for that purpose. - 49
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 49. Recognition of private settlement agreements
AI-assisted research summary: Courts must recognise every private settlement agreement presented and registered under this Part and make it part of the court record.
Section 49. Recognition of private settlement agreements Section Each private settlement agreement presented and registered under this Part shall be recognised by the court and form part of the record of the court. - 50
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 50. Enforcement of private settlementagr eements
AI-assisted research summary: Sets out how registered private settlement agreements can be enforced: a party must apply to the court in Form 16; the registry must open a file; the court may take steps including adopting the agreement as a judgment; affected parties may seek to set aside adoption or appeal within 14 days.
Section 50. Enforcement of private settlementagr eements Section 50(1) Where a party to a private settlement agreement that has been registered under rule 48 wishes to have the agreement enforced by execution or otherwise, he or she shall apply to the court in Form 16 as set out in the Schedule indicating the intention to do so. Section 50(2) The registry shall, upon receiving the application under sub- rule 1, open a separate file for the private settlement agreement. Section 50(3) The file opened under subrule (2) shall be placed before the court within fourteen days for adoption. Section 50(4) The court may order that other parties or the mediator be served, or that the applicant or other party be heard or examined on oath before adopting the private settlement agreement, or make such order as it may deem necessary. Section 50(5) Where the court is satisfied that the private settlement agreement is duly signed meets the conditions specified in rule 46, the court may adopt it as a judgment of the court and issue an order or decree in the terms of the agreement. Section 50(6) A party who executed a private settlement agreement but who was not heard before its adoption by the court, or any other affected party, may, with leave of court, apply to set aside the adoption proceedings or resultant orders. Section 50(7) An aggrieved party may, within fourteen days, appeal against the order of the court made under subrule (6) but no appeal shall against the private settlement agreement itself or the contents thereof. - 51
REGISTRATION, RECOGNITION AND ENFORCEMENT OF PRIVATE SETTLEMENT AGREEMENTS - 51. Adoption and enforcement of international private settlement agreements
AI-assisted research summary: Courts must check that an international private settlement agreement meets the conditions in subrule (3) before registering it and may refuse registration for sufficient reasons.
Section 51. Adoption and enforcement of international private settlement agreements Section 51(1) Subject to the provisions of this Part, an international private settlement agreement may be registered and enforced under this Part. Section 51(2)(a) the dispute that is the subject of the agreement was between parties who are nationals of more than one country; Section 51(2)(b) where the dispute was between bodies corporate, the parties are incorporated in more than one country or central management and control of the parties is exercised in different countries; Section 51(2)(c) the subject matter of the dispute is situate in a country other than the country of origin of the parties or any of them, or the country where the mediation proceedings are conducted or agreement concluded; or Section 51(2)(d) the private settlement agreement is presented for registration and enforcement in a country other than the country of origin of the parties, or the country where the subject matter is situate, or the country where the mediation proceedings were conducted or private settlement agreement concluded. Section 51(3)(a) it is valid under Kenyan or international law and the law of the country where the mediation proceedings took place or the country where the private settlement agreement was concluded and executed; Section 51(3)(b) it meets the requirements of rule 46; Section 51(3)(c) either of the parties is a Kenyan or ordinarily resident in Kenya, or the subject matter is situate in Kenya, or the mediation proceedings were conducted and private settlement agreement concluded in Kenya, or the enforcement of the private settlement agreement is expected to be conducted in Kenya; and Section 51(3)(d) the mediation was conducted by a qualified mediator under these Rules: Section 51(4) Before registering an international private settlement agreement, the court shall satisfy itself of the compliance of the agreement with the provisions of subrule (3) and may, for sufficient reason to be recorded, decline such registration. Section 51(5) The provisions of rule 50 shall apply with the necessary modifications in the enforcement of an international private settlement agreement.
Part IV
VIRTUAL MEDIATION PROCEEDINGS.
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VIRTUAL MEDIATION PROCEEDINGS. - 52. Rules applicable to virtual proceedings
AI-assisted research summary: Mediation proceedings conducted through virtual platforms must follow these Rules and any applicable court rules and practice directions governing virtual court proceedings.
Section 52. Rules applicable to virtual proceedings Section Mediation proceedings through virtual platforms shall be undertaken in accordance with these Rules and other court rules and practice directions for the time being governing the conduct of virtual court proceedings in so far as the same are applicable. - 53
VIRTUAL MEDIATION PROCEEDINGS. - 53. Validity of virtual mediation agreements
AI-assisted research summary: Settlement agreements produced by mediation held on a virtual platform are valid and enforceable in the same way as agreements from in-person mediation.
Section 53. Validity of virtual mediation agreements Section A settlement agreement including private settlement agreement resulting from mediation proceedings undertaken through a virtual platform shall be valid and capable of enforcement in the same manner as settlement agreements resulting from mediation proceedings conducted in person.
Part V
MISCELLANEOUS PROVISIONS
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MISCELLANEOUS PROVISIONS - 54. Power of the Court
AI-assisted research summary: The court has the power to make orders or give directions or notices to the mediator and parties to facilitate an effective and expeditious mediation.
Section 54. Power of the Court Section Nothing in these Rules shall limit the power of the court to make such orders or give such directions or notices to the mediator and parties as it deems fit to facilitate the effective and expeditious conduct of the mediation process. - 55
MISCELLANEOUS PROVISIONS - 55. Extension of time
AI-assisted research summary: The court may extend the time fixed for doing anything or taking any step under these Rules, on such terms as it deems fit.
Section 55. Extension of time Section The court may, on such terms as it deems fit, extend the time fixed for the doing of anything or taking any step under these Rules. - 56
MISCELLANEOUS PROVISIONS - 56. Applications
AI-assisted research summary: Applications under these Rules must be by notice of motion and may be disposed of virtually or physically as the court directs.
Section 56. Applications Section An application under these Rules shall, unless otherwise provided for, be by notice of motion and be disposed of virtually or physically as the court may direct. - 57
MISCELLANEOUS PROVISIONS - 57. Revocation
AI-assisted research summary: The Practice Directions on Court Annexed Mediation, 2017 are revoked.
Section 57. Revocation Section The Practice Directions on Court Annexed Mediation, 2017 are revoked.
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The Civil Procedure (Court-Annexed Mediation) Rules
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