By Lillian Wanja
Imagine a dispute that has been in court for 10 years being resolved within 3 weeks and in 3 sessions. Also imagine a succession dispute, in a family with over 15 beneficiaries, getting resolved and all concerned parties renewing their trust and relationships. Can you imagine? Does it seem possible? Well, not only is it possible, it actually happened in Kenya.
The story begins the way most others of its kind do; with the demise of the family patriarch. The man was the head of a large polygamous family; he had two wives and 16 children. At the time of his death, he was survived by all except one wife and his children were spread across 5 continents. He was a prominent man, which in Kenya, is synonymous with a man of means. He had plenty but his portfolio, especially the land, was diversified to include rural, urban, and peri-urban properties. In addition, the assets were further differentiated by use, that is, residential, agricultural and industrial.
The disputes began almost as soon as the man was laid to rest and continued for 10 years. It landed on Mr. Francis Asunah’s desk after court screening deemed it a suitable case for mediation and he, a Court Annexed Mediator, was assigned to the case. As he describes it, the greatest challenge was finding a suitable time that worked for everyone, everywhere. From the onset, it was clear that the process would be virtual but with the time difference, the only convenient time for all parties was Sunday afternoons. While convenient for the disputing party, it was most inconvenient for Mr. Asunah who is deeply involved in his Church and Sundays are dedicated to such matters. It called for a lot of flexibility and sacrifice on his part.
With everyone in the same “room”, the issues quickly revealed themselves: those abroad did not want agricultural land, the women in the family did not want ancestral land due to cultural issues, and one of the sons of the second wife had moved into the main family house in the urban area, after the father’s demise, and now claimed it to be his. The issues were complex and the parties were emotional; it was an issue of culture, change and the law. There was no accord in the family and almost everyone was suspicious of the other. “No outright hostility but no harmony either,” is how Mr. Asunah describes it.
His first step was the appreciation of the valuation of the properties as had earlier been done, although seemingly overtaken by other events. Once that was done, the next matter was agreeing on who gets what. On this, he had to tread very carefully. He advised by way of storytelling and case studies on similar situations and that opened the family up to discussion. An understanding emerged that everyone must get property of equal value, that everyone who wanted city land had to somehow give up their equivalent rights to agriculture or ancestral land and vice versa, and that prime property that could be sold, would be sold, and the proceeds divided equally among the beneficiaries. However, there was a caveat on the sale of property that included, among other things, that the opportunity would first be granted to any interested family member.
The long of the short is that most in the first wife’s family opted for industrial property, the 2nd wife’s for the urban (city) property, the ladies preferred the peri-urban areas, the not-so-blessed family members more or less opted for ancestral land where they could settle, while those abroad desired to receive the industrial property for ease of management. The son who had occupied the father’s city house and the surrounding land opted to retain it together with some of his siblings. On the other hand, the family agreed to sell some prime agricultural land and divide the proceeds while the rest of the easily divisible properties were divided among those who wished to farm and settle thereupon. All in all, everyone was in principle allocated property that was essentially equal in value and most ideal for their unique set of circumstances.
All this was accomplished in a span of 3 weeks and in 3 sessions. The finer discussions resulted in increased understanding of each others’ perspectives and circumstances and that helped to nurture harmony among the family members. Once the Mediation Settlement was finalized and the parties appended their signatures, it was presented and adopted by the courts as an order, without any alteration whatsoever as it is the parties themselves who had so agreed. Officially, this was the end of Mr. Asunah’s role but he had earned the family’s trust and they kindly requested his guidance as they formed a committee to oversee the liquidation and division of assets.
On the financial front, Mr. Asunah’s fee was only KSh 20,000/- and it was met by the court, not the disputing parties. His thereafter advisory assistance to the established Committee was purely pro-bono. In addition, he was obligated to host the Zoom meetings meaning that the process was at minimal cost to the parties. Each party therefore only had to facilitate their internet connection and meet their legal fees in accordance with their original agreement with their respective lawyers.
This case is a reflection of the merits of mediation as an Alternative Dispute Resolution method. All too often, we hear and read news of people who commit atrociously abhorrent acts, such as murder, as a result of succession issues gone wrong. Can a family truly heal after such acts? The beauty of mediation is that it encourages accord in a family and when handled especially well, it restores broken relationships before they deteriorate any further and become unsalvageable. Thanks to mediation, this case had a happy ending. Trust was rebuilt, the family relationships were restored and even more enhanced!
The story presented here is a true account of a case mediated by Mr. Francis Asunah, an Accredited Mediator and the Chairman of the Kisumu Court Annexed Mediators. Years later, he remains a friend of the family and the peace that he facilitated has been lasting. He views his role as a contribution to society and he especially values his part in restoring broken relationships.
- 10 years: The period of time the case had been in court without resolution.
- 3 weeks: The period of time it took to resolve the succession case in a total of 3 sessions.
- KSh 20,000.00: The amount of money the mediator was paid and it was met by the court as this was a Court Annexed Mediation case.
- Convenience: The mediation was conducted virtually for the convenience of all parties.
- Restoration of broken relationships: The mediation process resulted in the family members appreciating and understanding each other’s perspectives and this brought about healing and rebuilding of trust.
- Legal fees: Lawyers were paid the originally agreed amounts by each party that had engaged them. Mediation does not ‘take money away from lawyers’ but simply expedites the peaceful resolution of disputes and lawyers get their fees.
- Court Annexed Mediation: A mediation process which begins with a court screening its backlog/ suitable cases and referring them to mediation, appointing a Mediator from its list of Judiciary certified and accredited mediators, and meeting the cost of the mediation.