Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2017] KECA 515 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that mining companies must use the appeals process in the Mining Act before rushing to court to challenge licence revocations.
What this practically means
#Executive summary
#Key legal issues
#Availability of judicial review where a statutory appeal exists
The trial court correctly held that Cortec, having pleaded sections 17 and 27 of the Mining Act, ought to have pursued and disclosed the statutory appeal under section 93 and shown exceptional circumstances for judicial review instead; failure to do so meant it chose the wrong forum.
The Court endorsed the principle from Republic vs NEMA that an alternative remedy is not itself a bar, but an applicant must disclose its existence and explain why judicial review is more suitable. Where Parliament has provided a statutory appeal procedure, judicial review is granted only in exceptional circumstances, judged by the suitability of the appeal in the context of the statutory powers and the real issue to be determined. The statutory appeal would have allowed exploration of the merits, which judicial review would not.
Scope of judicial review - process vs merits
The trial court did not err in considering the validity of the license; the institutions whose approvals Cortec pleaded it had obtained were properly enjoined, and the information they gave was relevant to the judicious exercise of discretion. It was not a determination of the merits of the CS's decision.
Cortec itself pleaded that it had consents and approvals from NEMA, KFS and NMK. Those institutions became necessary parties and their affidavits were information the trial court was bound to consider in abundant caution. Their responses showed no approvals had issued, which was relevant to the discretionary relief sought. The criticism that the court decided the merits was therefore harsh and unfounded.
Interference with trial court's discretion on appeal
The appellate court found no misdirection or wrong conclusion by the trial judge; the discretionary refusal of judicial review orders was in accord with the law and stood.
Applying the Mbogo v Shah principle, the Court asked whether the judge misdirected himself or was clearly wrong. The central finding - that judicial review was unavailable absent disclosure of the alternative statutory remedy - was sufficient to dispose of the appeal and accorded with the law. No basis for interference was established.
Revocation of a clandestinely issued license without notice to show cause
The two-tier procedure in section 27 (notice to show cause by the Commissioner, then summary revocation by the CS) did not render the CS powerless where the license was clandestinely issued by a complicit Commissioner during the transition period; the CS was the overall custodian of the Act and entitled to act in the public interest.
The Commissioner was under suspension and complicit in the unlawful issuance, so he could not issue the notice to show cause. It would be foolhardy to require the same officer to conduct the show-cause process. The revocation applied equally to about 43 licenses and was neither malicious nor capricious. This accords with the trial court's reasoning, which the Court declined to fault.
Legal principles established
#- The existence of an alternative statutory remedy is not, by itself, a bar to judicial review, but an applicant must disclose the alternative remedy and explain why judicial review is being sought instead; where Parliament has provided a statutory appeal procedure, judicial review will issue only in exceptional circumstances.
- Judicial review is concerned with the decision-making process, not the merits of the decision.
- An appellate court will not interfere with the exercise of a trial judge's discretion unless satisfied the judge misdirected himself or was clearly wrong, resulting in a wrong decision or misjustice.
- On a first appeal, the court is obliged to re-appraise the evidence and draw its own inferences of fact.
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi (Environment and Land Court)
- H.C. ELC No. 195 of 2014 (Formerly Misc. Appl. No. 298 of 2013 (JR)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a)) from the High Court
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 Cabinet Secretary Ministry of Mining & 9 others [2017] KECA 515 (KLR)", Case Analysis (2017). Civil Appeal No. 105 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/515/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.