ALTERNATIVE DISPUTE RESOLUTION MECHANISMS AND THE RESOLUTION OF COMMUNITY LAND DISPUTES IN KENYA
Yunis Haji Omar Mohamed
ABSTRACT
The recognition of community land under the Constitution of Kenya 2010 marked a significant departure from earlier land governance arrangements in which customary and communal interests often occupied an uncertain position within the formal legal system. Alongside this recognition, the Constitution elevated alternative dispute resolution mechanisms by requiring courts and tribunals to promote reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Community Land Act 2016 subsequently developed a more specific dispute resolution framework for community land by recognising internal community processes, customary law, mediation, arbitration and eventual judicial intervention. Despite this elaborate legal architecture, community land disputes remained complex because they frequently involved overlapping customary and statutory claims, contested boundaries, collective resource use, community membership, pastoral mobility, natural resource extraction, compulsory acquisition and competing institutional mandates. This study examined the role of alternative dispute resolution mechanisms in the resolution of community land disputes in Kenya as at December 2019. It adopted a qualitative socio-legal desktop research design combining doctrinal legal analysis with empirical documentary review. Constitutional provisions, statutes, subsidiary legislation, reported judicial decisions, policy materials and scholarly literature available by 2019 were analysed thematically. The study was anchored in Legal Pluralism Theory and the Access to Justice theoretical perspective. The findings demonstrate that Kenya had established a strong constitutional and statutory basis for alternative dispute resolution in community land matters, but effectiveness varied according to the nature of the mechanism and dispute. Traditional dispute resolution offered community legitimacy and contextual knowledge but raised concerns over representation, gender equality and constitutional compliance. Mediation was particularly suitable for relational disputes requiring negotiated accommodation, although voluntariness and enforcement remained problematic. Arbitration provided greater finality but could replicate the adversarial and cost characteristics associated with litigation. The study concludes that effective resolution of community land disputes requires a constitutionally regulated plural system in which community mechanisms, mediation, arbitration and courts perform complementary rather than competing functions.