SCHOOL OF LAW

BACHELOR OF LAWS (LLB)

END OF SEMESTER EXAMINATION
SLS 3236: ALTERNATIVE DISPUTE RESOLUTION

DATE: MONDAY, 10TH OCTOBER 2016 TIME: 2 HOURS

INSTRUCTIONS
1. This examination consists of FIVE questions.
2. Answer Question ONE (COMPULSORY) and any other TWO questions.
3. Write legibly, marks will be lost for illegibility.
4. Read each question carefully before attempting to answer.

QUESTION 1

(a). Explain what is meant by “principled negotiation”? (5 marks)

(b). You have been approached by both sides to assist with the resolution of the following dispute:

Nature of the Dispute: Threat of domestic violence between husband and wife that has ended
up in divorce. The issue is on the visitation and custody of the children.

Ramsey Nouah had for a long time threatened to hit his wife Rita Dominic and to chop off
her hands if she did not bear him a son. Rita Dominic claims that prior to the dissolution of
the marriage they had already got four children, all of them girls. Ramsey Nouah’s father Pete
Jacobs had been piling pressure on the couple on the need of getting a son to be heir of the
vast estate of his the late father Olu Jacobs in the event of his death and Ramsey’s death.

1
 Rita Dominic was a stay home mum prior to the dissolution of the marriage. She had left her
job as an accountant to take care of her children. Due to the pressure from both Ramsey and
his dad and sensing that Ramsey was capable of causing her physical harm, she decided to
petition for divorce. Ramsey Nouah on the other hand runs the wide empire of his grandfather
Olu Jacobs as executive manager. His grandfather was a renowned businessman who owned,
owning a chain of supermarkets called Olumatt.

Ramsey had loved his wife and four girls so much that the divorce tore him apart. He has
been through serious bouts of depression three times since the divorce. His father has since
got him another wife from Ulala village whom it was said would give him a son. He is deeply
concerned about his girls and would like to be a part of their lives. He knows that Rita will
not agree to mend fences with him but he is determined to have time with his girls.

How would you proceed to mediate this dispute? (Focus on the step by step process you
would use in mediation).

(15 marks)

(c). Describe the advantages and disadvantages of any THREE of the following modes of dispute
resolution:

(i) Negotiation

(ii) Mediation

(iii)Arbitration

(iv) Litigation

(v) Adjudication

(10 marks)

QUESTION 2

Assume you are a senior associate in a reputed Law firm specialising in Arbitration and you
represent Majimazuri Group, a Kenyan based venture capital group that has invested in Make
‘Em Work, a manufacturing plant based in the Baringo County. Majimazuri Group has concluded
a contract with Manufacturing Minds, a Kenyan manufacturer of complex goods. The contact

2
involves Manufacturing Minds delivering some of the materials needed in the Make ‘Em Work
plant. A dispute has arisen between the parties involving breach of contract on the delivery of the
finished products by Manufacturing Minds.

The contract between Majimazuri Group and Manufacturing Minds includes a dispute resolution
clause indicating all disputes are to be resolved through arbitration seated in Nairobi with the
Kenyan arbitration law governing. There are to be three arbitrators, with Majimazuri Group and
Manufacturing Minds each naming one arbitrator and those two arbitrators naming the chair. A
dispute has arisen and Majimazuri has initiated arbitration under the Kenyan Arbitration Act.

It is now time to name the arbitrators. Majimazuri Group wants to name Prof. Majimarefu, a
Kenya advocate and academic who also lectures at one of the best private universities in Nairobi.
Two years ago, Prof. Majimarefu sat as an arbitrator in a different case as counsel for
Manufacturing Minds. Manufacturing Minds on the other hand names Cecil Rufuma, a strong
personality and a shining light in Kenyan arbitration practice, with a fantastic reputation for
intelligence and fairness. However, your research shows that, in his last eight arbitrations (none
of which were for Manufacturing Minds, who he has never apparently dealt with), he has
consistently sided with the main manufacturers rather than investors or the assemblers of
products. Three of these eight arbitrations involved the law firm of Amandla LLP which now
acting for Manufacturing Minds as counsel: in two, Rufuma was named by the firm and in one,
Rufuma acted as the chair of the panel.

What submissions and actions would you as Counsel for a Majimazuri Group make concerning
the nomination of arbitrators?

(15 marks)

QUESTION 3

Write short notes on ALL of the following:

(a). BATNA (3 Marks)

(b). The place of Traditional Dispute Resolution Mechanisms (TDRM) under the

Constitution of Kenya, 2010 (3 marks)

3
 (c). Facilitative mediation vs Transformative mediation models (3 marks)

(d). What is the difference between DRB and DAB (3 marks)

(e). Five (5) essential skills of a competent mediator (3 marks)

QUESTION 4

Critically analyse any FIVE roles the High Court of Kenya plays in Arbitration under the
Arbitration Act, 1995, Cap 49. (15 marks)

QUESTION 5

Discuss the salient features of international commercial arbitration contrasting it with domestic
arbitration. (15 marks)