Abstract

This article seeks to address the procedural efficacy of the informal justice systems (IJSs) in Kenya. The absence of a comprehensive regulatory and coordination framework on the IJSs greatly hampers access to justice. Many of the IJSs may not meet the natural justice threshold as they do not adhere to basic principles such as due process, fair trial, equality and non-discrimination. Some of the users of IJSs, such as the village elders, are not skilled in dispute resolution, and this may even distort the delivery of justice. Further, in some communities, IJSs have no enforcement mechanisms, and compliance is predicated upon the culprit’s conscience and socially enforced sanctions such as shunning, ridicule, ostracising and prejudice. The existing procedures, if any, are at best undocumented, rendering the process open to manipulation, unpredictability and unreliability, and are subject to the whims of its leaders. Sometimes the application of an IJS is extended over matters that are out of jurisdiction like serious criminal offences such as murder, rape and child defilement. The effect of this is that the formal justice system is immobilised as witnesses become reluctant and unwilling to testify in court as they may have already settled the matter through an IJS. The land question, being a very sensitive matter in Kenya, is not an exception. This article will consist of four main thematic areas. The first area consists of the historical background of an IJS, the second area focuses on the application of an IJS in land disputes among the Kipsigis community, the third area focuses on the analysis of the Kenyan legal framework on an IJS and the fourth area focuses on the review of relevant case law and includes a summary consisting of the findings and recommendations.