Sospeter Kariuki Nthiga Ndoro & 59 others v Director of Land Adjudication & Settlement & 4 others [2019] KEELC 2953 (KLR)
The bottom line
#The Embu Environment and Land Court dismissed an Iguna clan claim to ancestral land because the clan could not prove indigenous status or any constitutional violation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Iguna clan is an indigenous community under UNDRIP
The clan is not an indigenous community within the meaning of UNDRIP; no distinct language, culture, historical continuity or non-dominant status was demonstrated relative to neighbouring Mbeere clans.
The court applied the UN attributes of indigeneity - self-identification, historical continuity with pre-colonial societies, distinct culture and language, non-dominant status. The Petitioners showed no material distinguishing them from neighbouring clans, and their occupation did not predate that of other Mbeere clans with whom they competed for the land in the 1960s and 1970s. The Letuya (Ogiek) case was distinguished.
Applicability of UNDRIP to Kenya under Article 2(6)
UNDRIP is not applicable to Kenya as there is no evidence that Kenya ratified it.
Article 2(6) applies only treaties ratified by Kenya. Ratification is a question of fact to be proved by the petitioner. The record contained no evidence of ratification, and the Attorney General referred to the Ministry of Foreign Affairs database showing Kenya never ratified the Declaration.
Whether constitutional rights were violated by the land adjudication process
No violation of dignity, security of person, property or economic rights was demonstrated; the adjudication was a lawful process with mechanisms to prove customary claims.
The Petitioners and their leaders fully participated in the 1972 adjudication, filing committee cases and objections under the Land Adjudication Act, with appeal to the Minister under section 29 and judicial review available. Losing in that lawful process does not automatically constitute a constitutional violation.
Entitlement to reliefs
Petitioners entitled to none of the reliefs; additionally, revocation of third-party titles would fail for non-joinder and inordinate delay of about 39 years.
Having failed to prove any violation, no relief followed. Independently, cancellation of registered titles would affect vested rights of non-joined registered proprietors, contrary to natural justice per Nicholas Njeru, and the petition was filed some 39 years after the alleged grievances arose with no explanation.
Legal principles established
#- Only international treaties or conventions ratified by Kenya are applicable under Article 2(6) of the Constitution, and ratification is a question of fact to be proved by the party asserting it.
- A person who alleges contravention of fundamental rights must plead with particularity the rights violated and the manner of violation.
- Participation in a lawful statutory process without success does not by itself raise a constitutional issue.
- A court must hear parties before making orders affecting them; registered proprietors whose titles are sought to be cancelled must be joined.
Court orders
#- 1.The petition dated 21st April 2011 and amended on 23rd February 2016 was dismissed with no order as to costs
- Jurisdiction invoked
- Articles 22(1), (2), (4) and 23 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sospeter Kariuki Nthiga Ndoro & 59 others v Director of Land Adjudication & Settlement & 4 others [2019] KEELC 2953 (KLR)", Case Analysis (2019). Petition No. 6 of 2017 (formerly Kerugoya Petition No. 9 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2953/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.