Out of Court Settlements: How effective are they?

Eight students of Sunshine Secondary School in Lang’ata arrested for last month’s ‘arson incident’ at the school are reported to have requested an out of court settlement. We can assume it is the boys’ first public offence and perhaps committed without knowledge of legal consequences.

While the Director of Public Prosecutions wishes to have the group to serve as an example for any other, the proposed out of court settlement has gained numerous response from the public: social media being the biggest rant. The main contributors claim that the alleged Kshs.50,000/= is too little an amount to grant bail to the ‘rich’ kids. Others are enraged at how courts can even consider granting them their wish to settle the matter. They claim this is an overriding act of the rule of law.

In a system swamped with hearings, appeals, examinations, judgments/rulings, filings, timelines and litigants and counsel that may dishonour the court proceedings, the existing backlog of cases is overwhelming.  Courts suffer when matters exceed their lifespan in their chambers. Eventually, the tax payer feels the pinch.

To assume that a court matter can be concluded in a specified period of time is impossible. Therefore, courts come up with several means of settling matters outside their halls because some of the cases can actually be settled amicably by the litigants. That is, if they are willing to try.

So what does it mean to settle the case out of court?

To settle out of court means to resolve a dispute before court pronounces its decision on the matter. It can be before court makes its ruling/judgment or before the case is actually filed in court.

It entails a form of contract or agreement between parties. This contract is binding and enforceable by court as the final decision by both parties. But it can also be revoked when either or both parties find themselves entangled in a fresh or similar battle for justice. In this case, it is prudent to file/restitute (in case it had already been filed) and be heard in court.

It may be initiated by the party that feels wronged. Whatever the result, court is notified of the final decision and a consent order drawn to exhibit the parties’ intentions.

Generally, there’s no admission of guilt or wrongdoing and the contents of the contract are confidential. Some countries like England have gone a notch higher by introducing an order called the ‘Tomlin Order’ where the agreement entered into stays (postpones) the claim and bars any further court action unless for purposes of enforcing the contents of the agreement. Any breach of this privacy (confidentiality) is fatal to the breaching party and poses serious litigation against him/her/it.

Civil matters differ from criminal matters, however. The latter are offences against the state and therefore the state has the upper hand in deciding whether the matter can be settled out of court or not. Usually, the state tables a ‘Plea Bargain”. Ultimately, it is the DPP to decide in these circumstances.

Some communities prefer using their cultural institutions established for dispute settlement and courts in both Uganda and Kenya have gladly recognised their outcomes if all parties involved submit to the establishment. Each case presents its unique traits and courts decide accordingly. One case occurred among the Somali community in Kenya under the traditional Maslah. The mainstream court allowed the withdrawal of the case and honoured the decision of the elders in *Republic versus Mohamed Abdow Mohamed [2012], expressing its view that the:

‘two families had performed the said rituals, the family of the deceased satisfied that the offence committed has been fully compensated to them under the Islamic Law and Customs applicable in such matters and in the foregoing circumstances, they did not wish to pursue the matter any further be it in court or any other forum.’

In Uganda minor offences can be settled out of court. The nature of the offence is usually minor like assault and petty theft without violence.

This is a rare phenomenon. Criminal matters institute heavy burdens of proof, resolution, fault finding according to law and the element of punishment.

Although the intrinsic intention is to have the guilty party penalized for the offence, many litigants and intending litigants prefer an out of court settlement for personal reasons. These among others include: the expense/cost of litigation, uncertain duration of the process, socio-cultural impacts, etc. As long as the settlement neither infringes on another fundamental right nor extend the abuse: makes sense in legal and social terms, it is fair to settle.

It is important to weigh the possibilities of settling out of court and the anticipated results before embracing this route.


This article appears in our newsletter, The Deuteronomy Vol 4,  Issue 5 of July 29th, 2016.

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