Our Expert in Kenya
The court‑annexed mediation procedure in Kenya (2026) offers litigants a structured, judiciary‑supervised pathway to resolve civil and commercial disputes without a full trial. Governed by the Judicature (Court‑Annexed Mediation) Rules, 2026 (SI No. 14), the process sits within Kenya’s formal court system and applies to cases filed in the High Court, Environment and Land Court, and Employment and Labour Relations Court. This guide sets out every step a claimant, defendant or in‑house counsel must follow, from the initial referral through mediator appointment, mediation sessions and the conversion of any settlement into an enforceable consent order, together with the documents needed, the statutory deadlines, realistic costs and the practical changes introduced by the 2026 Rules.
Court‑annexed mediation (CAM) in Kenya is a form of alternative dispute resolution that takes place under the supervision of the Judiciary of Kenya. Unlike private mediation, CAM is embedded within active court proceedings: the court refers a pending case, or the parties themselves request a referral, to a mediator drawn from an accredited panel maintained by the Judiciary. The mediator facilitates negotiation but has no power to impose a decision. If the parties reach agreement, the settlement is filed and recorded as a consent order, giving it the same force as a court judgment.
CAM was first formalised under the Civil Procedure (Court‑Annexed Mediation) Rules published as Legal Notice No. 145 of 2022, which introduced pilot mediation programmes in several court stations. The Judicature (Court‑Annexed Mediation) Rules, 2026 (SI No. 14) replaced and expanded those earlier rules, creating a unified framework that applies across all superior courts. The 2026 Rules draw authority from Section 59 of the Civil Procedure Act (Cap. 21) and from the overriding objective in Article 159(2)(c) of the Constitution of Kenya, which directs courts to promote alternative forms of dispute resolution. The full statutory text is available on the Kenya Law portal, and the Judiciary’s Court Annexed Mediation page provides downloadable copies of the rules and practice directions.
Court‑annexed mediation in Kenya covers a broad range of civil disputes. Matters routinely referred include:
Cases involving criminal charges, constitutional petitions raising questions of public law, judicial review proceedings and applications for injunctive relief that require urgent court intervention are generally excluded from CAM referral.
Under the 2026 Rules, every civil case filed in a participating court station is screened for mediation suitability at the earliest mention or case‑management conference. The presiding judge or registrar evaluates several factors: the nature and complexity of the dispute, the relationship between the parties, the likelihood that a negotiated outcome will be durable, and whether all necessary parties can be brought to the table. Either party may also file a written request for mediation referral at any stage before the hearing date is fixed.
Consent of both parties is not a precondition. The court has discretion to order a referral even where one party objects, provided the case falls within the eligible categories. In practice, however, early indications suggest that courts typically invite representations from both sides before issuing a referral order.
Only mediators who appear on the Judiciary’s official panel of accredited mediators may conduct court‑annexed mediation. To be listed, a mediator must hold a certificate from a recognised mediation training institution, the Judiciary publishes an updated list of recognised institutions on its CAM downloads page, and must satisfy continuing‑professional‑development requirements. Parties may propose a specific accredited mediator by name, or the court registry will appoint one from the panel. Before the first session, parties should verify the proposed mediator’s accreditation status against the Judiciary’s published panel.
Foreign companies and non‑resident parties are eligible to participate in court‑annexed mediation in Kenya. They must, however, appoint a representative with clear authority to negotiate and settle, supported by a notarised power of attorney. Where the representative is based outside Kenya, consular legalisation or apostille authentication of authority documents may be required.
The following numbered steps trace the court‑annexed mediation procedure from initiation to final outcome. Each step identifies the responsible party and the applicable statutory timeline. The summary table below the steps provides a quick‑reference overview.
A party wishing to start mediation in Kenya files a Mediation Referral Request at the court registry where the case is pending. The request should state the case number, the names and contact details of all parties, a brief summary of the dispute, the relief sought and, optionally, the name of a proposed accredited mediator. Where the court initiates the referral suo motu during a mention or case‑management conference, the registrar records the referral order and serves it on all parties.
If you are the responding party and receive a referral order, confirm the date of the order and begin assembling the documents listed in the Required Documents section below. There is no requirement to file a formal response to the referral itself, but failure to attend the mediation session without reasonable cause may attract adverse costs consequences.
After receiving a party request, or on its own motion, the court conducts a screening assessment. The judge considers whether the case meets the suitability criteria outlined above, whether all essential parties have been joined, and whether any urgency (such as a pending interim order) would make mediation impractical at that stage. Where the court is satisfied, it issues a formal referral order directing the parties to mediation and setting the outer time limit for completion of the process. Under the 2026 Rules, this referral typically occurs on the same hearing day, though the court may adjourn the question for up to 7 days to hear representations.
Once the referral order is issued, the parties may agree on a mediator from the Judiciary’s accredited panel within the time frame specified in the order. If they fail to agree, the court registry appoints a mediator and notifies all parties and the mediator in writing. The notification triggers the mediation timeline: the appointed mediator must convene the first mediation session within 7 days of the date of notification. Parties should use this short window to prepare their mediation bundles, brief their representatives and confirm that whoever attends has full settlement authority.
The first session typically opens with a joint meeting in which the mediator explains the ground rules, confirms confidentiality obligations and invites each party to present an opening statement. The mediator may then hold private caucuses, separate meetings with each side, to explore interests, test positions and generate settlement options.
All communications during mediation are confidential under the 2026 Rules. Statements made, documents produced and offers exchanged in the course of mediation are inadmissible in subsequent court proceedings if the mediation fails. The mediator has no authority to compel disclosure, subpoena witnesses or make binding determinations. Parties are free to bring legal counsel, experts or company representatives to assist during sessions.
The standard mediation window is 60 days from the date of the first session. Within that period, the mediator will schedule as many sessions as necessary. Industry observers expect that most straightforward commercial and employment disputes require between two and four sessions spread over three to six weeks.
If the parties reach agreement, the mediator assists them in drafting a written mediation settlement agreement. The agreement should contain: the full names and descriptions of the parties; a recital of the dispute and the case number; the agreed terms (including any payment schedule, timelines for performance and mechanisms for breach); mutual release clauses covering the claims in dispute; a clause confirming that the agreement may be filed for entry as a consent order; and the signatures of all parties and the mediator.
To convert the settlement into an enforceable court order, the parties file the signed settlement agreement at the court registry together with a draft consent order. The court will ordinarily enter the consent order on production of the settlement, without a further hearing, giving the agreement the same legal effect as a judgment of the court. This enforceability mechanism, strengthened under the 2026 Rules, means that a party who defaults on the settlement terms can be pursued through standard execution procedures (attachment, garnishee orders, contempt proceedings).
If no settlement is reached within the 60‑day window, the mediator files a brief report confirming that mediation has concluded without agreement. The case then returns to the court’s active list and proceeds to hearing in the ordinary course under the Civil Procedure Rules. Nothing disclosed in mediation may be referred to in subsequent pleadings or submissions.
| Step | Who Does It | Typical Duration |
|---|---|---|
| Party files mediation referral request or court refers case to CAM | Claimant / Defendant or Court Registry | At mention or within procedural timetable (immediate) |
| Court screening and referral order issued | Judge / Court Registry | Same hearing day or within 7 days |
| Mediator appointment notified to parties and mediator | Court Registry (or parties if agreed) | Within time frame set in referral order |
| First mediation session convened | Appointed Mediator | Within 7 days of mediator notification |
| Mediation sessions conducted within the mediation window | Mediator and Parties | 60 days from first session (extendable in limited circumstances) |
| Settlement agreement signed | Parties and Mediator | At or immediately after final session |
| Settlement filed and consent order entered | Parties apply to Court | Filed immediately; court enters consent order on production |
Thorough preparation of the mediation bundle is essential to productive sessions. The table below lists every document typically required, together with notes on who issues it, format requirements and any validity considerations. Parties should compile and index these documents before the first session.
| Document | Notes |
|---|---|
| Mediation Referral Request | Filed by party at the court registry; must state case number, names and contacts of all parties, brief summary of dispute, relief sought and proposed mediator (if any). Signed by the filing party or advocate. |
| Court pleadings (statement of claim / defence / counterclaim) | Certified copies of all filed pleadings and any schedules, annexures or affidavits. Obtained from the court registry. |
| Power of attorney / letter of authority | Issued by the party; must authorise the named representative to negotiate and bind the party to a settlement. Notarised where a foreign party is involved; consular legalisation may be required. |
| List of issues and key documents bundle | Prepared by each party; an indexed bundle containing the contracts, invoices, correspondence, valuations, expert reports or other documents relevant to the dispute and the relief sought. |
| Proposed mediator consent and CV | If the parties propose a specific mediator, include the mediator’s written consent and proof of accreditation (certificate from a Judiciary‑recognised training institution). |
| Mediation settlement agreement (if reached) | Drafted at the conclusion of successful mediation; signed by all parties and the mediator. Must contain case number, agreed terms, release clauses and a clause authorising filing as a consent order. |
| Mediator’s report | Prepared by the mediator at the conclusion of mediation (whether settled or not). Filed with the court registry; confirms outcome without disclosing confidential content. |
Strict adherence to deadlines is critical. The 2026 Rules impose specific time limits at several stages, and missing them can result in the matter reverting to the litigation track without further opportunity for mediation. The table below summarises each milestone.
| Milestone | Trigger | Deadline / Statutory Timing |
|---|---|---|
| Court referral order | Party request or court’s own motion at mention / case‑management conference | Same hearing day or within 7 days |
| First mediation session | Date of mediator appointment notification | Within 7 days of notification |
| Primary mediation period | Date of first session | 60 days (standard mediation window) |
| Request for extension of mediation window | Party or mediator application to court | Must be filed before expiry of the 60‑day period; court grants extension only with demonstrated cause |
| Filing of settlement agreement for consent order | Date settlement agreement is signed | File promptly; court enters consent order on production of signed agreement |
| Return to litigation (if mediation fails) | Expiry of mediation window without settlement | Court re‑lists matter for mention and sets hearing date under the Civil Procedure Rules |
Parties who anticipate that the 60‑day window will be insufficient, for instance, because a technical valuation is pending, should file an extension request well before the deadline expires. Courts have discretion to grant a single extension of reasonable duration, but extensions are not automatic and will require a written explanation of the grounds.
One of the principal attractions of court‑annexed mediation is its cost advantage over full‑trial litigation. Nevertheless, parties should budget for several categories of expense. The table below outlines the main cost items.
| Item | Amount / Range | Notes |
|---|---|---|
| Court registry filing fee for mediation referral | Per Judiciary fee schedule (may be nil where court initiates referral) | Confirm current fee with the court registry; the Judiciary’s CAM downloads page lists applicable schedules. |
| Mediator professional fees | Guided by the Judiciary’s recommended tariff or market rates | Mediators on the Judiciary panel may charge per session or per day. The Judiciary publishes guideline tariffs; verify the current schedule on the Judiciary CAM downloads page. Fees are typically shared equally between the parties unless otherwise agreed. |
| Venue and administrative costs | Variable; often minimal | Court‑provided mediation rooms are generally available at no additional cost. Where parties use a private venue or mediation centre, room‑hire fees apply and are borne by the parties. |
| Legal representation fees | Market dependent | Advocate fees for mediation preparation, attendance and settlement drafting are subject to the advocate‑client agreement. Many advocates offer fixed‑fee packages for mediation attendance. |
| Tax considerations on settlement amounts | Depends on the nature of the claim | Compensatory settlements (e.g., reinstatement of salary, contractual sums) may carry income‑tax implications. Damages for personal injury are generally non‑taxable. Parties should obtain specific tax advice before finalising settlement terms. |
| Costs orders if mediation fails | Court discretion | Where a party unreasonably refuses to engage in mediation or attends in bad faith, the court may consider this conduct when making costs orders in the subsequent litigation. |
The Judicature (Court‑Annexed Mediation) Rules, 2026 (SI No. 14) introduced several material changes to the mediation procedure that was first piloted under the 2022 Rules. Practitioners and parties should note the following reforms.
The 2026 Rules formalise the requirement that only mediators listed on the Judiciary’s accredited panel may conduct court‑annexed mediation. The Judiciary has published an updated list of recognised mediation training institutions and accredited mediators, available on its CAM downloads page. Before proposing or accepting a mediator, parties should verify accreditation status against this list. Mediators who were previously operating under ad hoc appointments outside the panel are no longer eligible for court‑annexed appointments.
The 2026 Rules codify three procedural changes that significantly affect day‑to‑day practice:
The likely practical effect of these reforms is a faster, more predictable mediation track. Parties who previously hesitated to use court‑annexed mediation because of enforcement uncertainty now have a clear statutory pathway from settlement to executable court order.
The following pre‑session and pre‑signing checklists will help parties avoid these pitfalls.
Before the first mediation session:
Before signing the settlement agreement:
This article was produced by Global Law Experts. For specialist advice on this topic, contact Harshil Shah at Madhani Advocates LLP, a member of the Global Law Experts network.
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