Presented by: CS. JACQUELINE WAIHENYA MAINA Advocate, Commissioner for Oaths & Notary Public, CPS(K), MCIArb [ Arbitration & Adjudication ], CPM-MTI [ Mediation ]  /  ICPSK 4 TH GOVERNANCE, INTEGRITY AND INVESTMENTS CONFERENCE TO BE HELD ON 24 – 26 JUNE 2015 AT TRAVELLERS BEACH HOTEL, MOMBASA. ALTERNATIVE DISPUTE RESOLUTION IN COUNTY GOVERNMENTS

Governance Corporate Governance has been defined as the system by which corporations, companies or organizations are directed controlled and held to account. It can also be defined as the manner in which the power of, and power over, a corporation is exercised in the stewardship of its assets and resources so as to increase and sustain shareholder value as well as satisfying the needs and interests of all stakeholders.

Governance: Public Sector The International Federation of Accountants (IFAC) issued a document in 2000 on corporate governance in the public sector. The following three principles of corporate governance were identified: (1) Openness; (2) Integrity; and (3) Accountability

1) Openness: To ensure that stakeholders have confidence in the decision-making processes and actions of the public sector entities, in the management of their activities, and in the individuals within them. 2) Integrity: To ensure honesty and objectivity, high standards of propriety and probity in stewardship of public funds and resources and in the management of an entity’s affairs. Integrity is dependent on the effectiveness of the control framework and on the personal standards and professionalism of individuals within the entity. 3) Accountability: To ensure public sector entities and individuals within them are responsible for their decisions and actions, including the stewardship of public funds and all aspects of performance, and submit themselves to appropriate external scrutiny.

Counties of Kenya

The Cost of Conflict Surveys by The Center for Creative Leadership and Eckerd College in St. Petersburg, Florida indicate that managers spend between 20 and 40 percent of their time dealing with conflict.

Direct costs of conflict are generally observable, measurable and accrue over time. Let’s take the following example of the cost of losing a single mid- level employee due to conflict within a hypothetical organization, applying the Dana Cost Calculator from figures generated by HR Magazine in February 2003: 1) employee’s annual salary: $80,000; 2) multiply by 1.4 (140%) as the investment you have in the employee: $112,000; 3) multiply by 1.5 (150%) as the cost of replacing the employee: $168,000; 4) multiply by.6 (60%) average role of conflict in voluntary terminations: $100,800. Now, multiply times the number of voluntary terminations in your organization annually. Say you have a 10% turnover rate in a company of 100 employees that’s 10 employees. 10 X $100,800 = $1,008,000.

Cancer Child

What is ADR? The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale Court processes.

ADR Mechanisms: ADR systems may be generally categorized as:- Negotiation; Conciliation; Mediation; or Arbitration.

Legal Framework for ADR in Kenya (County Governments) Applicable legislation for application of ADR in Kenya that applies to County Governments includes:- 1) The Constitution of Kenya, 2010; 2) The National Government Coordination Act No.1 of 2013; and 3) The Inter-Governmental Relations Act No.2 of 2012.

Other Important Legislation: 1) The Arbitration (Amendment) Act, 2009 (Kenyan); 2) The Civil Procedure Act Cap 21 (Laws of Kenya) See Order 46 ; 3) Employment Act No. 11 of 2007; 4) Labour Institutions Act No.12 of 2007; 5) Labour Relations Act No.14 of 2007; and 6) Nairobi International Centre for Arbitration Act

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What can ADR do? Within the context of rule of law initiatives, ADR programs can: 1) Support and complement court reform; 2) By-pass ineffective and discredited courts 3) Increase popular satisfaction with dispute resolution 4) Increase access to justice for disadvantaged groups; 5) Reduce delay in the resolution of disputes; 6) Reduce the cost of resolving disputes.

Limitations of ADR ADR Programs may be ineffective or even counterproductive in serving some rule of law objectives. ADR is not an effective means to:- 1)Define, refine, establish & promote a legal framework; 2)Redress pervasive injustice, discrimination or human rights problems; 3)Resolve disputes involving disputants or interested parties who refuse to participate in the ADR process.

A Case Study: Digital Migration Standoff 11 th January 2013

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