Court, the Respondent has had an opportunity to deal with such matter through the
appropriate domestic proceedings. Once an Applicant proves that a matter has
passed through the appropriate domestic judicial proceedings , the requirement of
exhaustion of local remedies shall be presumed to be satisfied even though the same
Applicant before this Court did not itself file the matter before the domestic courts.
95.1n the instant Application, the Court notes that the Applicant has provided evidence
that members of the Ogiek community have litigated several cases before the national
courts of the Respondent, some have been concluded against the Ogiek and some
are still pending J In the circumstance, the Respondent can thus reasonably be
considered to have had the opportunity to address the matter before it was brought
before this Court.
96. Furthermore, from available records, the Court notes that some cases filed before
national courts were unduly prolonged, some taking 10 to 17 years before being
completed or were still pending at the time this Application was filed. 8 In this regard ,
the Court observes that the nature of the judicial procedures and the role played by
the Parties therein in the domestic system could affect the pace at which proceedings
may be completed. In the instant Application, the records before this Court show that
the prolonged proceedings before the domestic courts were largely occasioned by the
actions of the Respondent, including numerous absences during Court proceedings
and failure to timely defend its case. 9 In view of this, the Court holds that the
Respondent's contention imputing the inordinate delays in the domestic system to the
adversarial nature of its judicial procedures is not plausible.
7
See case of Francis Kemai and 9 Others v Attorney General and 3 Others, High Court Civil Application
No 238 of 1999; case of Joseph Letuya and 21 Others v Attorney General and 2 Others, Miscellaneous
Application No 635 of 1997 High Court of Kenya at Nairobi.
8
See case of Joseph Letuya & 210 Others v Attorney General & 2 Others, Miscellneous Application No.
635 of 1997 before the High Court at Nairobi, (completed after 17years of procedure);case of Joseph
Letuya & 21 Others v Minister of Environment, Miscellaneous Application No. 228 of 2001 before the High
Court at Nairobi,( instituted in 2001 and still pending at the time the Application was filed beforethis
Court);case of Stephen Kipruto Tigerer v Attorney General & 5 Others, No. 25 of 2006 before the High
Court at Nakuru, ( instituted in 2006 and was still pending at the time the Application was filed before this
Court).
9 For a detailed account, see Complaints' Submissions on Admissibility, CEMIRIDE, Minority Rights
Group International and Ogiek Peoples Development Programme (On behalf of the Ogiek Community),
pages 15-24.