Muthoni Kihara & another v Commissioner of Mines and Geology & another [2017] KECA 507 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that mining licences over private land cannot be renewed without the current owner's consent.
What this practically means
#Executive summary
#Key legal issues
#Power of the Commissioner to renew mining licences over private land
The Commissioner acted ultra vires section 7(1)(m) of the Mining Act by renewing licences over private land without the consent of the current registered owner; prior consent by former owners did not suffice and section 79 did not apply.
Section 7(1)(m) excludes private land from prospecting and mining except with the owner's consent, and section 7(3) makes compulsory acquisition the only remedy where consent is unreasonably withheld. Section 18 limits licences to annual renewals up to five years, so no permanent rights arise. Section 79 applies to government grants of land, not to renewals by the Commissioner, and its notice proviso is directed to government grants. Consent by a predecessor in title does not continue indefinitely against a transferee.
Res judicata and sub judice in judicial review
The judicial review application was not res judicata as it sought public law remedies of an entirely different character from the previous private-law suit; the issue is anyway overtaken by the decision in Civil Appeal No. 117 of 2005.
The cause of action arose on 22nd September 2011, after the striking out of HCCC No. 990 of 1999, which was not a determination on the merits, and the company was not a party to that suit. Judicial review checks abuse of statutory power, distinct from the private rights litigated in the earlier suit. The Court of Appeal has since restored that suit for hearing, so acting on the point would be futile.
Jurisdiction of the High Court vis-à-vis the Environment and Land Court
The High Court had jurisdiction; the subject matter was judicial control of statutory power, not a dispute over use, occupation or title to land, and section 22 of the Sixth Schedule preserved pending proceedings.
Article 162(2)(b) empowered Parliament to establish the Environment and Land Court, but section 22 of the Sixth Schedule and section 30 of the Environment and Land Court Act preserve pending proceedings before the same court unless the Chief Justice directs otherwise, and no such direction was made. The judicial review challenged the exercise of statutory power by a public officer, which is vested in the High Court. The jurisdictional point was not raised in the High Court.
Mixing judicial review and civil jurisdiction in one application
The inclusion of interim relief (stay and injunction) in the judicial review application did not render it incurably incompetent; at the time a judicial review court had no power to grant injunctions, and the issue was a procedural technicality causing no prejudice.
The stay and injunction were conservatory reliefs sought pending determination, and the court preserved the status quo on its own motion. The law has since been reformed by section 11(1) of the Fair Administrative Action Act, 2015, which empowers a judicial review court to grant just and equitable relief including injunctions. The overriding objective favoured determining the substantive application rather than penalising a technicality.
Judicial review and the merits of the decision
Although judicial review concerns the decision-making process, the court properly interpreted the Mining Act to determine whether the Commissioner acted within his legal limits; this upheld the principle of legality without usurping the decision maker.
The main ground of review was abuse of power: renewal of a licence without the land owner's consent contrary to the Mining Act. Determining that ground required interpreting the statute on an undisputed fact — that the current owner had not consented. Judicial review exists to ensure public bodies exercise statutory powers lawfully, reasonably and procedurally fairly, and to ensure discretionary powers are exercised within legal limits.
Legal principles established
#- Section 79 of the Mining Act does not confer power on the Commissioner to renew a prospecting or mining licence over private land by merely notifying the land owner; the consent of the current registered owner is required for renewal.
- A prior consent given by a former land owner does not empower the Commissioner to renew licences continuously without the consent of the current registered owner.
- Res judicata does not apply to a judicial review application seeking public law remedies that is of an entirely different character from a previous private-law suit.
- Pending judicial proceedings at the transition under the 2010 Constitution continue before the same court unless the Chief Justice directs otherwise, and jurisdiction is not defeated merely because a specialist court is later established.
- A judicial review court may determine the legality of a decision involving interpretation of statutory limits on power without improperly usurping the decision maker's role.
Court orders
#- 1.The appeal against the order of certiorari quashing the decision of 22nd September, 2011 and the order of prohibition is dismissed with costs to the 2nd respondent (Kutima), to be paid by the appellants
- 2.The appeal against the order of certiorari to quash the renewal certificates, which had expired, is allowed and that order is set aside
- 3.The order of prohibition as granted shall remain in force
- 4.The costs in the High Court shall be paid as ordered by the High Court
- On appeal from
- High Court of Kenya at Nairobi – Judicial Review Division
- Misc. Civil Application No. 84 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review decision; dispute concerns judicial control of statutory power under the Mining Act (Cap 306), a jurisdiction vested in the High Court and, on appeal, in the Court of Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoni Kihara & another v Commissioner of Mines and Geology & another [2017] KECA 507 (KLR)", Case Analysis (2017). Civil Appeal No. 10 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/507/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.