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Arbitration and ADR can resolve Disputes of a Personal Nature

Arbitration and ADR can resolve Disputes of a Personal Nature

 

Background

Last November, the Court of Appeal (the COA) delivered a groundbreaking judgment in the matrimonial and children’s custody dispute between TSJ & SHSR.

Summary of the Facts

The facts of the case are that parties were married under Islamic law and belonged to the Shia Imami Ismailia faith. Both parties had taken oaths affirming that they are true Shia Imami Ismailia and that Shia Imami Ismaili law governed their marriage. After years of marriage, the husband applied to the His Highness the Aga Khan Shia Imami Ismailia National Conciliation and Arbitration Board (the Arbitration Board) for the dissolution of the marriage because of irreconcilable differences. After hearing the parties, the Arbitration Board ordered that the marriage be dissolved and that the parties shall have joint parental responsibility. Custody of the children was given to the wife and visitation rights to the husband. The husband was ordered to settle expenses such as school fees, medical insurance, and to maintain his wife and their children. The Arbitration Board also ordered the matrimonial home to be sold with the proceeds of the sale being shared equally by the parties.

The wife presented an application to the High Court for the recognition and enforcement of the arbitral award as delivered by the Arbitration Board. The husband opposed his wife’s application by challenging the jurisdiction of the Arbitration Board to render the arbitral award in the first place. The High Court agreed with the husband and declined to recognize and enforce the arbitration award by declaring that the Arbitration Board did not have the jurisdiction or mandate to hear and determine matrimonial and children’s custody disputes. The High Court ruled that matrimonial disputes could only be heard and determined by the Kadhi’s court, and, that children’s custody disputes could only be heard and determined by the Children’s court. According to the High Court, the Arbitration Board had exceeded its jurisdiction and its arbitral award could not be recognized or enforced.

The Appeal

TSJ appealed the decision of the High Court to the COA. On hearing the appeal, the COA ruled that there was nothing in the Act that restricted the application of arbitration to commercial disputes alone. The COA held that the Arbitration Board had exercised its power under the Constitution of Kenya (the Constitution). The COA concluded that the Arbitration Board had the mandate and jurisdiction to hear and determine both the matrimonial dispute and the children’s custody dispute since both parties had submitted themselves to the authority of the Arbitration Board.

Commentary

This is an important decision because it significantly expands the scope of alternative forms of dispute resolution mechanisms as promoted under Article 159 (2)(c) of the Constitution. Article 159(2)(c) of the Constitution provides that in exercising judicial authority courts and tribunals shall be guided by alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms.

The decision also clarifies that courts of law do not have a monopoly over matrimonial and children’s custody disputes. This means that couples are free to have their matrimonial and children’s custody disputes determined by alternative dispute resolution bodies. Criticism of court driven marital and children’s custody disputes is the absence of privacy. In our opinion, this decision will enhance the right to privacy as protected by Article 31(c) of the Constitution.

If you any inquiries relating to arbitration, other forms of alternative dispute resolution and traditional dispute resolution, do not hesitate to contact James Wairoto on jwairoto@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied on without seeking specific subject matter legal advice.

 

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