Implementation of Article 159 bit by bit: a place for online dispute resolution in the Kenyan bar

Abstract

The Constitution guarantees and promises all persons access justice, reasonably and the affordably. This rightly chimes with Article 159 of the Constitution giving all persons the right to exercise judicial authority through alternative dispute resolution mechanisms. Internationally, with the rise of innovation in e-commerce the use of e-dispute resolution (online dispute resolution (ODR)) as form of internet-based dispute resolution has been embraced. This paper in its simplest form seeks to pose the question, “Does ODR stand a chance with the bar? Does it break the traditions of the bar?” In analyzing these questions, the discussion will first look at, the position of the advocate in the Kenyan context of the Advocates Act and the evolving practice rules. Second, the paper will delve into the use of electronic dispute resolution, placing it in the context of other jurisdictions to observe the threshold and the scope in implementation of ODR rules with a mind to exploring the position of the advocate. Third, we will bring it closer home, presenting the case for e-dispute resolution and whether it is attainable in the standards of the Constitution and what role the Advocate can play. At the same time, we will ask ourselves. “Does the Advocate really have a role in e-dispute resolution?”. Lastly, the discussion will be capped off with recommendations and possible reforms we may want to see the profession take in embracing ODR.