Kenyan parties can mediate in two settings: privately, on their own initiative, or through court-annexed mediation after a case is filed. Neither route is inherently the better one. Each fits different situations, and the differences are mostly practical, so it helps to understand the mechanics of both before choosing deliberately rather than by default.
What is the difference between private and court-annexed mediation?
Private mediation begins by agreement. The parties choose the mediator, set the timetable, and record the fees in an agreement to mediate. Court-annexed mediation begins with a referral: suitable cases are screened under the court-annexed mediation practice directions, an accredited mediator is assigned from the Judiciary’s panel, and the fees follow the applicable schedule.
When is each route appropriate?
Private mediation suits parties who want to resolve a dispute before it becomes a case, preserving confidentiality, controlling the calendar, and choosing a mediator with particular subject-matter experience. Court-annexed mediation suits parties already in litigation who want a structured, supervised attempt at settlement without giving up the protection of the court’s timetable if it does not settle. A party may also agree to mediate privately at any stage of proceedings, with the court’s knowledge.
- Timing: private mediation can begin immediately; court-annexed mediation follows referral
- Mediator: chosen by the parties, or assigned from the Judiciary’s panel
- Fees: rates agreed between the parties, or the schedule that applies to referred cases
- Oversight: none, or continuing supervision by the court
Does the route affect enforcement?
When mediation succeeds, both routes end in the same place. A signed settlement binds the parties as a contract, and a settlement reached in court-annexed mediation can be adopted as a judgment of the court as a matter of course. A privately concluded settlement can be registered, recognised, and enforced under the Civil Procedure (Court-Annexed Mediation) Rules 2022.
Our arbitration and ADR lawyers in Nairobi advise on both routes, on drafting mediation clauses, and on the referral process; see our practice areas.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation with a certified mediator at our Westlands, Nairobi office.