Connect with us


When can the Environment and Land Court (ELC) Refer Environmental Disputes to ADR??



The Author, DPP Nominee Renson Mulele Ingonga, Planting a Tree During a Past Event (Photo: Courtesy)

By Renson Mulele Ingonga is an Advocate of the High Court of Kenya, LLB (Moi), LLM (UON) and the Nominee Director of Public Prosecution of Kenya.

There are two instances that can trigger the ELC to invoke Section 20 of the ELC Act and refer environmental disputes to ADR. First, the ELC on its own motion can refer parties in an environmental suit to adopt and implement an ADR. Second, parties can request the ELC that the matter be referred to ADR.

a) The ELC referral

Section 20(1) grants the ELC power on its own motion to refer parties to ADR. In referring the parties to use ADR in solving the dispute in question, it is mandatory that the parties must agree to this. The term ‘with the agreement of’ connotes consensus. The drafters of the ELC Act may have anticipated a scenario whereby it would be useless for the ELC to order parties to use ADR, a process which they don’t agree upon. This would lead to wastage of time and in some cases aggravate the dispute. This will also guard against the misuse of the discretional power of the ELC to refer environmental matters to ADR against the will of the parties concerned. One of the characteristics of ADR is that the process is usually voluntary and allows the parties to negotiate. In agreeing with the Court’s order for an out of court settlement, the parties submit to the ADR enhancing its enforcement.

The question that arises is when the ELC can invoke Section 20 (1) of the ELC Act to adopt and implement an ADR mechanism in resolving environmental disputes before it. The ELC can deploy ADR in two instances: early in the process; or any time during the trial but before it makes a final decision. Requesting the parties to adopt ADR early in the process is the most optimal. Whilst the ELC Act requires that the ELC environmental ADR referral be discretional, in some cases such a referral can be mandatory. Mandatory referrals arise where the law governing the dispute requires that such a matter be resolved through ADR. Arbitration agreement is the most common. Where an arbitration agreement between the parties in a suit exists, the parties will be required to exhaust the dispute through arbitration.

b) Parties request for referral

It is trite law that where parties request for referral of an environmental dispute to ADR mechanism, the court should not refuse such a request unless it is in the Court’s view that such a referral will inhibit justice. In requesting the referral of the dispute to ADR, the parties have an obligation to provide the ELC with sufficient reasons why they would want to refer the matter to ADR. This would caution against wastage of the ELC time and resources. However, in cases where not all parties in a suit request for referral to ADR, the ELC may refuse such a request until when all parties agree.

Adopting and Implementing of Environmental ADR in the ELC

The ELC has a number of ADR mechanisms which it can refer the parties to adopt which include arbitration, mediation, conciliation, negotiation etc. Whichever form of ADR the ELC adopts must be determined by the nature of environmental dispute in place and balancing of the interests of the stakeholders involved. Molly and Rubenstein, provide that one of the key questions to be addressed in adopting environmental ADR is to determine where it can be placed within the existing conventional ADR. They provide that environmental ADR can be annexed to a dispute resolution entity such as the court or environmental regulatory mechanism.

There are various ways in which the ELC can adopt and implement environmental ADR. ADR can either be supervised ADR (also referred to as court annexed ADR) or judicial referral of a dispute to an appropriate ADR process. The Land and Environment of New South Wales in settling environmental disputes adopts both in-house mechanism and external. In-house mechanisms include: adjudication; conciliation; mediation; neutral evaluation; and informal mechanisms which may result into a negotiated settlement. The ELC can either adopt the court annexed ADR which is now part of the Kenyan legal system or refer the dispute to an appropriate ADR mechanism in agreement with the parties. Court annexed ADR is ADR process that is undertaken under the umbrella of the Court. Currently, court annexed mediation is now recognized under the Kenyan judicial system and the ELC can refer parties to the same for environmental disputes settlement.

The ELC can also refer parties to court annexed arbitration in tandem with the Arbitration Act, the CPA and the Civil Procedure Rules. The ELC can also refer the parties to an appropriate ADR process. In this scenario the environmental dispute is referred to an ADR entity. Parties can either agree to refer the matter to the ADR entity referred to or may choose another ADR entity which in their view is appropriate. In Kenya, the ADR entities include the Chartered Institute of Arbitrators, Dispute Resolution Centre and Mediation Training Institute, Strathmore Mediation and Dispute Resolution Centre and the Nairobi Centre for International Arbitration. While parties are not forced to submit to these bodies and may choose an independent ADR expert, these bodies offer a forum through experience and expertise in solving disputes through ADR. In Kenya, we do not have an independent ADR entity which deals with environmental ADR only. This initiative can be considered in future by environmental stakeholders.

Stay of Legal Proceedings in Environmental ADR

Section 20(2) of the ELC allows the ELC to stay proceedings where ADR is a condition precedent to any proceedings before it. The essence of this provision is to ensure that where parties have agreed to resort to ADR in resolving environmental disputes, the ELC grants them the opportunity to reach a decision. If the aggrieved party wants to pursue their claims, then they must first exhaust the ADR mechanisms. Section 6 of the Arbitration Act requires the Court to stay legal proceedings where the dispute in question has been referred to arbitration. Section 6(3) of the Arbitration Act is very categorical that, if a Court does not stay the legal proceedings where arbitration is a condition precedent to any proceedings before it, then such proceedings will be of no effect. This maintains the status quo ensuring that the matter is subject to the ADR process.

This article is an extract from the Article “Alternative Dispute Resolution in Environmental Disputes: A Case of the Specialized Environment and Land Court in Kenya” by Renson Mulele Ingonga published in (2018) Journal of Conflict Management and Sustainable Development, Volume 2(1), edited by Dr. Kariuki Muigua, PhD. The references and citations of sources are available in the Journal article.


Eric Kivuva: Reset and Calibrate for a Nairobi LSK Branch that Delights Members

“My vision is for a Nairobi Branch that delights members because things work as they should to improve practice, welfare, and mentorship,” Eric Kivuva.




Eric Kivuva, Senior Partner at McKay Advocates and Nairobi LSK Branch Chair Candidate

By Eric Kivuva, Nairobi LSK Branch Chair Candidate 2024-2026

Nairobi Branch has had stability over the last few years but we seem to have stagnated on protecting and advocating for improvements in the practice environment and have become superficial about the real welfare issues of members. The time is nigh for us to reset our leadership and the branch. It is time to replace stagnation in practice with progress; Public relations in member care with results-oriented action; silence with empathy, disconnection with engagement. It is time for a reset and calibration of the branch for positive, progressive impact on our practice and welfare.

My Promise: To make Nairobi branch a truly world class branch when it comes to championing a better practice environment and more opportunities for members.

My Agenda: Our practice environment is not conducive for many advocates because of the bottlenecks that exist. We must prioritize practice matters if each one of us is to have a thriving practice so that you can not only meet your needs but also have a little more to create positive impact in the society.

My Reset and Calibrate Agenda

Agenda 1: Protect and Progress Practice Areas

  • Diligently follow through with implementation of CUCs and Bar-Bench Committee recommended actions.
  • Be proactive in monitoring changes in the legal sector and take measures to ensure advocates are not negatively affected by those changes.
  • Eliminate bottlenecks in practice areas specifically by championing efficiency at all registries i.e. Land Registries, Court Registries, Company Registries and KIPI.
  • Support the fight against corruption in the judiciary and the elimination of facilitation fees.

Agenda 2: Adoption of Emerging Practice Areas

  • Establish the emerging practice areas committee
  • Encourage greater collaboration with inhouse counsel to widen the practice space
  • Develop a simple guide to practice management

Agenda 3: Mentorship and Unity of the bar

  • Institute a practice mentorship program within the branch to equip members with skills and tools to help them build thriving practices.
  • Expand branch social activities and increase the frequency of the events to involve as many members as possible.

My Track Record

I have made significant contributions to the Nairobi branch without holding an elected position.

  1. I have been a staunch supporter of the Nairobi Branch, contributing through member donations and sponsoring numerous branch events.
  2. ⁠I played a pivotal role in establishing one of our most beloved traditions, the Nairobi Branch Quiz Night, alongside our esteemed first chair, Charles Kanjama, to foster camaraderie among members.
  3. ⁠I offered leadership during the organization of the first-ever LSK elections debate, where I not only facilitated as the MC but also ensured the event’s seamless execution.
  4. ⁠I contributed to the conceptualization of the Nairobi Legal Awards in 2021 organized by the Nairobi Branch and the inaugural Nrb Branch Christmas carols event.
  5. ⁠I consistently support the Nairobi branch financially and has served as a speaker at multiple branch events, most recently at a cocktail organized by the branch in August 2023.
  6. ⁠In recognition of my unwavering dedication, I was honored with the Committed Service Award in 2022, bestowed upon individuals who demonstrate exceptional commitment to branch activities.

There is no question that Nairobi LSK Branch holds a special place in my heart and that makes me the ideal candidate to lead the LSK Nairobi branch to new heights in the next two years.

My Vision for Nairobi Branch

My vision is for a Nairobi Branch that delights members because things work as they should to improve practice, welfare, and mentorship.

Continue Reading


Irene Kiwool: My Track Record and Call to PACT for Better Nairobi LSK

Irene Kiwool is calling for a PACT towards a Progressive and an All-Inclusive LSK Nairobi Branch Bar.




Irene Kiwool is running for LSK Nairobi Council Member 2024-2026 on PACK Agenda.

DownloadIrene Kiwool’s Manifesto for Nairobi LSK Council Member 2024-2026(PDF)


I am an advocate with 14 years post admission experience and a partner at Muchemi & Co. Advocates. For the past 6 years, my unwavering dedication and commitment to the bar has been evident through active participation on several Nairobi Branch Committees. This engagement has not only sharpened my legal acumen but has also allowed me to make meaningful contributions and impact to our legal community. I believe it is this commitment and dedication to our legal practice that led to my nomination as the Commercial and Conveyancing Practitioner of the Year in 2022 and listed among the Top 100 Real Estate and Finance Lawyers in Kenya in 2023.


Dedicated Leadership and Service

I have served diligently on the following committees:

  • Lands Liaison Committee
  • Commercial Practice Committee
  • ICT and IP (KIPI) Liaison Committee
  • Judicial Review Bar -Bench Committee
  • Devolution and Law Reform Committee
  • Ardhisasa Technical committee

Legal Practice Protection and Reform

I have played a pivotal role in safeguarding the legal practice and spearheading key reforms that support our profession and protecting our bread and butter.  Notable contributions include:

  • The gazettement of the Regulations on Electronic Conveyancing (The Land Registration (Electronic Transactions) Regulations, 2020),
  • The gazettement of The Regulations on Extension and Renewal of Leases (Land Extension and Renewal of Leases) Rules, 20l7.)
  • Development of a comprehensive Conversion Manual, which guides practitioners on the process to convert Land Titles and Deeds issued under the repealed land laws.
  • The manual is available on the Ministry of Lands Website.

Proactive Advocacy for Efficient Systems

I have been at the forefront lobbying and driving for improvements on the Ardhisasa System, to enhance its user-friendliness, responsiveness, efficiency and effectiveness. Through my proactive engagements, we have achieved significant upgrades, unlocked key registrations at the Nairobi Registration Unit and facilitated the development and dissemination of training materials on the use of the Ardhisasa system.


  • Filing of Consolidated applications
  • Introduction of a Progress Status bar to track registration status
  • Reduced timelines for the registration of Foreign Accounts
  • Enhanced system functionalities including editing applications
  • Comprehensive upload capabilities for chargee’s covenants, previously limited to 500 words activation of several registration forms conducting
  • Searches without proprietor’s consent through an Advocate account for unconverted or unenumerated properties cleared by Ministry of Lands


  • Long -term leases through the Memorandum of Understanding between Ministry of Lands and LSK
  • Where modules are inactive registration is manual by seeking exemption from the Registrar
  • Manual registration for inactive modules by requesting for an exemption to register through the Chief Land Registrar
  • Transfers by Chargee
  • Deed of Variations of Charges
  • Replacement of lost Titles and reconstruction of the register.


I am committed to honoring the PACT (Protect, Account, Champion and Track), by continuing to serve members, this time as a council member. With your vote, together, we can bring inclusivity, integrity, innovation and impactful change to our resident bar.


  • Protect members bread and butter by prioritizing practice issues and defend against challenges from whatever source. Develop a proactive stance to anticipate and mitigate risks before they impact our members.
  • Lobby for the establishment of a Practice Forward Committee aimed at monitoring emerging challenges in the legal practice, focusing on the welfare of Advocates, the emerging areas of legal practice and recommending implementable solutions. This initiative would ensure that Advocates are well supported and equipped to navigate the evolving complexities of the legal field.
  • Lobby for creation of an online Nairobi Branch Members Directory that is publicly accessible, allowing Members of the public to easily locate and engage legal counsel thereby increasing visibility and accessibility for our members.
  • Lobby and develop a tracking mechanism to weed out masqueraders and unqualified persons through a justice multi- stakeholder approach


  • Advocate for Accountability and Transparency of Branch operations and financial affairs.
  • Lobby for the adoption and implementation of a stakeholder and institutional accountability tool to monitor and enhance service delivery across key partner institutions (the courts; the Land Registration Units, BRS, Ecitizen, KRA, Registrar of persons, Tribunals among other’s). This tool will aim to ensure transparency, responsiveness and efficiency, proactively addressing challenges and optimizing resource utilization Advocate for prudent utilization of Branch funds to maximize the benefits to our members.


  • Champion and spearhead legal reforms that reflect current needs and future challenges with the aim to strengthen and grow members’ practice.
  • Champion for strategic networking engagements, collaboration and knowledge exchange.
  • Establish dynamic forums and platforms for members to leverage expertise and access valuable resources thus contributing to members individual growth, overall development and innovation within the legal practice.
  • Champion and spearhead the drafting and publication of a comprehensive manual that provides guidance on electronic conveyancing aiming to streamline and enhance conveyancing practice.


  • Establish a tracking system to regularly assess the welfare support mechanisms in place, ensuring they effectively contribute to the progression and growth of members.
  • Track the effectiveness of the mentorship program and develop strategic policies to expand the pool of mentors and enhance the quality of mentorship.
  • Lobby for the establishment and implementation of a performance metric’s system to evaluate the efficiency and effectiveness of branch committees. This metrics will be reviewed periodically to foster continuous improvement.


  1. Member of the Co -ordinating Committee that is tasked with the mandate to co-ordinate the review of the National Land Policy.
  2. Member of the Nairobi Lands Justice Working Group whose mandate is to identify the root causes and address systemic and endemic challenges in the administration of land justice in Nairobi County.
  3. Member at the Lands and Housing Sector Board Committee at KEPSA and public Policy and Advocacy Committee at KPDA.
  4. Member of the Kenya School of Law Mentorship programme.

Continue Reading


Njoki Mboce: I am Members Project for LSK President




By Njoki Mboce for LSK President 2024-2026 Team

Today, LSK faces an existential threat from those who seek to compromise its mandate by aligning with the regime in ongoing attempts to undermine the place of the Law Society of Kenya (LSK) and erode the Rule of Law. This has the potential to regress the country to a state of impunity and dictatorship reminiscent of the past.

In such turbulent times, the LSK requires a leader who is resolute, decisive, and impartial. Harriet Njoki Mboce is this suitable leader, with a firm reputation, who will speak Truth to power in the face of encroaching dictatorship.

The actions of a candidate are a mirror of who they are, and what they will be in office. If a candidate wants the office at all costs, and abuses members’ trust to get there, they will have no integrity while in office. Harriet Njoki Mboce is unequivocally the LSK Members’ project. Boldly and firmly acting to defend Independence of the BAR, institutions, and the Rule of Law, she has maintained this commitment throughout her campaigns for President of LSK. This offers a strong basis to fearlessly champion members’ interests and protect the BAR from capture by the State and unscrupulous cartels.

Growing up, I dreamt of being a Navy Officer. I never in my wildest dreams imagined that I would one day be seeking the Presidency of an organisation previously led by impeccable names such as SC Gibson Kamau Kuria, SC Pheroze Nowrojee, SC Paul Muite, SC Hon Dr. Willy Mutunga (CJ Emeritus) and SC Raychelle Omamo, among others. It has taken resilience and a high dose of firm, and bold commitment to get here.

LSK requires a leader to withstand the pressure within and without, and to take the heat on behalf of the membership, whenever the Country and the Society’s living tenets come under threat. This resilience as a quality in the President of LSK enables me in a big way to see the wider horizon of the environment we operate in, to prepare for the storms and to boldly and firmly focus and act on our bigger mandate.

Come elections day, 29th February, 2024, I invite members to ask themselves: Which candidate shows real signs that they will not be corrupted, will run an accountable organisation and will sustain the moral and probity to place the LSK on a path of Independence? I humbly seek your vote to bring this desire home. Please vote for the Member’s project, Harriet Njoki Mboce, HSC for President of The Law Society of Kenya (2024-2026)

Continue Reading