Cortec Mining Kenya Limited v The Cabinet Secretary, Attorney General & 8 others
The bottom line
#Kenya's Court of Appeal ruled it cannot issue injunctions in judicial review appeals, leaving Cortec Mining without protection over its revoked Mrima Hill mining licence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to grant an injunction pending appeal in a matter originating in judicial review
The Court has no such jurisdiction. An injunction falls outside the amplitude of reliefs available under Section 8 of the Law Reform Act, and Section 3(3) of the Appellate Jurisdiction Act requires the Court of Appeal to apply the law applicable in the High Court. Granting the injunction would also revive determined litigation and would not prevent the appeal from becoming nugatory.
The Court reasoned that judicial review is sui generis and concerns public law remedies only: certiorari, mandamus and prohibition, as set out in Section 8 of the Law Reform Act. Since the High Court could not grant an injunction in those proceedings, Section 3(3) of the Appellate Jurisdiction Act precludes the Court of Appeal from granting it on appeal. The Court further held that with dismissal of the judicial review motion there was nothing to conserve or stay, and that the licence revocation had already taken effect in August 2013.
Whether Article 23(3)(b) and (c) of the Constitution confers jurisdiction to grant the injunction
The invocation of Article 23 was misplaced because those provisions relate to enforcement of fundamental rights and freedoms under the Bill of Rights, which was not the subject of this matter.
The applicant had premised its motion partly on Article 23(3)(b) and (c) of the Constitution, which permits injunctions and conservatory orders. The Court examined Article 22 and observed that proceedings under it concern enforcement of fundamental rights and freedoms under the Bill of Rights. Because the matter concerned a mining licence revocation challenged by judicial review and not a Bill of Rights claim, the invocation of those Articles could not found jurisdiction for the injunction.
Legal principles established
#- The reliefs available in judicial review under Section 8 of the Law Reform Act are confined to certiorari, mandamus and prohibition, and an injunction may not be granted on appeal by the Court of Appeal from dismissed judicial review proceedings
- Where judicial review proceedings are dismissed, there is no positive order capable of being stayed, and no interlocutory relief may issue pending appeal
- By Section 3(3) of the Appellate Jurisdiction Act, the Court of Appeal in an appeal must apply the law applicable to the case in the High Court
Court orders
#- 1.The applicant's notice of motion dated 6th May 2015 is struck out
- 2.Costs of the motion awarded to the 1st, 2nd, 3rd, 4th, 5th, 6th and 10th respondents whose counsel appeared and argued the matter
- On appeal from
- High Court of Kenya at Nairobi
- H.C. ELC No. 195 of 2014 (Formerly Misc. Application No. 298 of 2013)
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and rules 1(2) and 5(2)(b) of the Court of Appeal Rules; application also invoking Article 23(3)(b) & (c) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Cortec Mining Kenya Limited v The Cabinet Secretary, Attorney General & 8 others", Case Analysis (2015). Civil Application No. NAI 119 of 2015 (UR 95/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/138/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.