Elders resolve to promote alternative dispute resolution mechanisms

From left; Nyeri nominated MCA Eva Githaiga, Nyeri deputy governor Samuel Wamathai and Nyeri Speaker Mwangi Mugo chat at Whispers Park in Nyeri town recently during the UN International Day for Persons Living With Disabilities. Photo  Robert Nyagah
From left; Nyeri nominated MCA Eva Githaiga, Nyeri deputy governor Samuel Wamathai and Nyeri Speaker Mwangi Mugo chat at Whispers Park in Nyeri town recently during the UN International Day for Persons Living With Disabilities. Photo Robert Nyagah

The increased killings of elderly persons of land and property inheritance is now a cause for concern in Embu County.

It has now seen hands being joined to ensure the elderly are protected with non-governmental organizations and elders trying to find ways with which to solve land and property inheritance disputes.

The elders and NGOs are promoting setting up of community courts to address such domestic disputes among others.

This has been instigated by the increase in mysterious murders among family members as close relatives, including siblings, battle over land and other property.

With most families seeking judicial intervention to resolve the disputes, statutory courts are becoming heavily overwhelmed by cases.

The killings have been so rampant that Embu County Governor Martin Wambora is on record condemning the culprits for using violence to access property.

Wambora has challenged the youth to work hard, earn their money and acquire property instead of targeting their parents’ and guardians’ wealth for inheritance.

“Young people should work to earn their own money and acquire property instead of employing illegal and violent means to access land and other properties from their parents,” said Wambora.

Insecurity

The Governor’s sentiments are supported by Jeremy Njeru, an official of a local NGO, funded by the Action Aid Kenya. “Elderly people, especially women, are being exposed to bloody murders over delayed sub-division of land and other property as well as the bequeathing of the same to their children.”

While supporting alternative dispute resolution methods, Njeru notes that domestic disputes reach violent levels mainly because of delayed or lack of dialogue at the family and community level.

However, Njeru says that in areas where traditional and cultural elders’ teams have remained intact especially in parts of Mbeere North and South sub-counties, disputes are resolved mutually due to the intervention of elders.

“Elders remain a key group in resolving disputes at family and community level because they are able to trace issues deeply and widely before identifying key areas of disputes,” says Jan Ireri, an elder in Kititiri area in Mbeere North.

Those elders have helped identify areas of compromise while seeking reconciliation and forgiveness.

Some of the rituals are highly revered and known to cause serious results in punishment if abused.

According to Macaki Nguru, an elder from Kirie in Mbeere North region, one of the rituals involves collecting a mould of soil and putting into the mouth of a witness and or complainant, and swearing that if whatever one has said is a lie may the soil cause him death.

Judiciary

Today, the Judiciary remains overwhelmed by civil and criminal cases. This then makes cases of inheritance to face challenges in terms of determination.

Last year Chief Justice Willy Mutunga has constantly encouraged litigants to seek traditional, cultural and other home-grown alternative dispute resolution mechanisms which are recognised by the Constitution of Kenya 2010.

After wide consultations and mobilisation of elders and residents by private lawyers and judicial officials, some of the elders in Embu County are set to launch cultural courts and community committees that will be used to resolve disputes.

This follows extensive para-legal training on court processes and alternative dispute resolution mechanisms by the Judiciary.

The elders involved in the legal clinics will start to receive disputes and resolve them through traditional dispute resolution mechanisms once litigants withdraw cases from formal courts.

According to Andrew Ireri, Chairman Nyangi Ndiiriri Council of Elders, in 2015 they held three major legal clinics in the county at Kairuri, Runyenjes and Embu town.

This is confirmed by Sospeter Simiyu of Opondo, Simiyu, Kiringa and Company Advocates, coordinator of the clinics who says more clinics will continue across Embu County to cover all corners.

So far, more than 40 advocates of the High Court have been involved in clinics and this came after the perusal of court files. Some of the magistrates interviewed revealed that a majority of the cases could be resolved at family and community level through alternative dispute resolution mechanisms.

“We are teaching residents and elders’ skills on how to represent themselves in courts through impacting basic knowledge on laws including land laws which is a key area of disputes in the county,” explains Opondo.

Opondo and his team are confident that the skills will go a long way in reducing the burden on the Judiciary with a large number of cases expected to be withdrawn from the courts.

Cases

Opondo and the elders admit that Embu County courts have been recording huge number of cases and especially those involving land and property disputes.

In fact some of the cases are known to take too long to be resolved yet had they been handled by elder they would have taken a shorter time and would have been cheaper.

“We offered to train the elders and residents on the court process when it emerged that area residents faced many problems in accessing justice with numerous incidents being reported in the media where litigants appear helpless,” explains Opondo.

Elders in the County commit to intensifying campaigns to create community awareness on alternative dispute resolution mechanisms.

“We are already creating forums to educate the people on the importance of amicable resolution of disputes because some of the disputes lead to violence and sometimes death,” says Ireri.

Ireri is of the opinion that residents will be encouraged to only take cases to court as the last alternative to avoid the expenses involved in judicial processes.

Expenses

“Rushing to court is financially expensive and time consuming, it should be the last alternative especially when it comes to issues of property,” advices Ireri. He adds: “Many families in court disputes have seen their family fortunes disappear through lawyers’ fees.”

The elders backing their arguments about the importance of alternative dispute resolution mechanisms with legal clauses and the constitution.

“The Constitution of Kenya 2010 provides means through which people in disputes are allowed to reach an amicable agreement outside the court and register their agreement to move the court to withdraw their cases,” explains Ireri.

Embu and the Mbeere communities historically had their own means of settling disputes and most ended up with an apology or a fine in the form of livestock such as goats and some head of cattle.

“Today the same can be done and the livestock can be calculated in form of money while in cases involving land, property sharing can be pursued,” reiterates Ireri.

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