The Use of traditional dispute resolution mechanisms as a viable tool in the resolution of land disputes in Kenya: a critical analysis of its challenges and prospects

Abstract

Traditional Dispute Resolution Mechanisms (TDRMs) are deeply rooted in cultural beliefs and practices. They hence vary from one culture to another; however, the common characteristic is that they all aim to achieve justice. These systems are informal in nature, and this is what makes them attractive to the people who rely on them. Such dispute resolution mechanisms already exist and are acknowledged within a formal justice system, and this brings about the issue of dual legitimacy between the two systems: informal and formal. Even though the two systems are similar in the sense that they both aim to achieve justice, they are not structurally and substantively identical. This study examines the suitability of TDRMs in the resolution of land disputes. This study argues that even though the informal nature of TDRMs makes it more attractive and accessible to persons in the community, it does lack in some regards. It lacks a clear and uniform legal and policy framework that would enable its ‘successful’ application in the resolution of land disputes and enforcement of the decisions reached by the disputants.