Article by Prof. Kenneth Wyne Mutuma assisted by Anne Abala
I had the honor of serving as a discussant during the training organized by the Kenya Judiciary Academy, in partnership with the National Steering Committee on the Implementation of Alternative Justice Systems (NaSCI-AJS) and Pepperdine University, held from September 29 to October 1, 2025. The three-day training focused on the Multidoor Approach to Access to Justice for the Commercial and Tax Division, the Tax Appeals Tribunal, and other justice sector actors. To set the pace, Prof. John Napier and Prof. Corrie Napier from Pepperdine University provided definitions and an overview of Alternative Justice Resolution Systems.
Thereafter, Justice (Prof.) Joel Ngugi, who spearheaded the Taskforce on Alternative Justice Systems, delivered an insightful overview of the multidoor approach to access to justice in Kenya and its imperatives. His presentation framed our subsequent discussions on the possibility of resolving tax disputes through Alternative Justice Systems (AJS) and Alternative Dispute Resolution (ADR). Both AJS and ADR complement the traditional court system. They are informal, flexible, and party-driven, which positions them as viable mechanisms for settling tax disputes; disputes that are often complex and highly emotive.
The Kenyan judiciary has long grappled with a significant case backlog. To address this, it introduced Court-Annexed Mediation (CAM), where courts refer consenting parties to accredited mediators. In the Commercial and Tax Division of the High Court, the backlog is estimated at approximately KSh. 398 billion, locking up vast sums that could otherwise circulate in the economy. To address this challenge, proposals have been made to expand the use of court-annexed mediation in tax disputes as a way of unlocking these funds and expediting justice.
At present, tax disputes are resolved primarily through the KRA Internal Dispute Resolution Mechanism (IDRM), the Tax Appeals Tribunal (TAT), and the High Court upon appeal. The IDRM includes technical mediation conducted on the basis of agreed facts. The Tax Appeals Tribunal Act further provides for out-of-court settlements, while the High Court may also refer matters to mediation. Each of these stages has integrated aspects of ADR. However, tax disputes are often convoluted, sensitive, and technical, necessitating both expertise and flexibility in their resolution.
From our discussions, it was evident that while KRA’s technical mediation has proved effective in resolving disputes, taxpayers should be provided with additional alternatives such as Court-Annexed Mediation. This would not replace the work of the KRA’s IDRM but would complement it, creating a broader range of mechanisms to resolve disputes more efficiently. For this to succeed, court-annexed mediators must receive specialized training in tax matters to adequately handle the complexities involved.
The training sessions and ensuing discussions were highly insightful and marked a significant step towards ensuring that tax disputes are resolved in a speedy, fair, and cost-effective manner. The adoption of ADR and AJS in tax matters will not only reduce the backlog at the Commercial and Tax Division of the High Court but also help release critical funds into the economy while enhancing taxpayer confidence in the justice system. I look forward to the implementation of the recommendations we made during this training as part of a comprehensive effort to strengthen access to justice in tax dispute resolution.
