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ELCPartially AllowedELC Petition No. 1 of 2017· [2018] KEELC 4433 (KLR)

Mohamed Hussein Haji v Abdinoor Shariff Ahmed & 5 others [2018] KEELC 4433 (KLR)

Environment and Land Court
31 January 2018
ECE.C. Cherono
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped gypsum mining on Garissa community land because the miners had no valid licence and never consulted residents.

What this practically means

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Executive summary

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The petitioner, Mohamed Hussein Haji, petitioned the Environment and Land Court at Garissa alleging that the 1st and 2nd respondents had begun mining gypsum in the Ali Jibril area of Wabari ward, Garissa County, without complying with constitutional and statutory regulatory requirements, including licensing, environmental impact assessment and public participation, thereby degrading the environment and threatening his rights and those of the community under Articles 28, 35, 40, 42, 43(1)(a) and 56(a). He sought declarations, an order for information, certiorari, prohibition, mandamus, a permanent injunction, a supervisory order, restoration of the degraded land, damages and costs. The 1st and 2nd respondents asserted they mined under a contract with Afro Pride Limited holding special mining rights granted by the Commissioner of Mines and Geology, denied any degradation for want of expert evidence, and objected that the petition was premature and affected by non-disclosure. Replying affidavits filed by Bernard K. Kimeto for the state respondents denied that any licence had been issued to the respondents, explained the Online Mining Cadastre application regime, attached the register of licensed companies, and stated that any gypsum mining by the respondents was illegal under section 202 of the Mining Act. Those averments were not controverted by further affidavit. The court found the land to be unregistered community land held in trust by the County Government of Garissa under Article 63 and the Community Land Act, and held that a licence over such land could not lawfully issue without public participation. Applying the precautionary principle and relying on the petitioner's photographs showing environmental threat, the court found the right to a clean and healthy environment infringed or likely infringed on a balance of probabilities. It issued a conservatory order stopping the 1st and 2nd respondents from mining and degrading activities in the Jibril area, directed the 3rd to 5th respondents to ensure compliance with the assistance of the Garissa County Police Commander, and ordered each party to bear its own costs. The remaining heads of relief were not granted.

Key legal issues

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01

Whether the alleged mining on community land was lawful

Holding

The land is unregistered community land held in trust by the County Government of Garissa; no evidence showed lawful acquisition or consultation, so mining without public participation was impermissible

Reasoning

The court held the land is community land under Article 63 and the Community Land Act. Under Article 63(3), unregistered community land is held in trust by the county government. The 1st and 2nd respondents claimed rights through Afro Pride Limited under a licence from the Commissioner of Mines and Geology, but the Commissioner did not swear an affidavit confirming the grant, and the state officers denied issuing any licence. No consultation of the county government or inhabitants was evidenced.

p. 4
02

Whether the petitioner proved infringement of the right to a clean and healthy environment

Holding

On a balance of probabilities, the respondents have infringed or are likely to infringe the right to a clean and healthy environment, justifying a conservatory order

Reasoning

Relying on Article 42 and the precautionary principle, the court found that the petitioner's affidavit and attached photographs demonstrated a real threat to the environment of the Jibril area. Lack of full scientific certainty was not a ground to postpone preventive measures, so a conservatory order stopping degrading activities was warranted.

p. 5
03

Whether the 1st and 2nd respondents held a valid licence to mine gypsum in Garissa

Holding

The state officer responsible denied any licence was issued to the respondents, and those denials were uncontroverted; the claimed contract with Afro Pride Limited was not verified by the Commissioner of Mines

Reasoning

Bernard K. Kimeto deponed that the Ministry of Mining had received no application from the respondents, that all applications must go through the Online Mining Cadastre, and that any gypsum mining by the respondents was illegal under section 202 of the Mining Act. A register of licensed companies was attached. The respondents did not file a further affidavit to controvert these averments.

p. 3

Legal principles established

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  • A licence over unregistered community land cannot lawfully be issued without consulting the inhabitants through public participation
  • The precautionary principle applies where there are threats of serious or irreversible environmental damage, and lack of full scientific certainty is not a reason to postpone protective measures
  • Uncontroverted averments on oath stand as proof of the facts deponed to

Court orders

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  1. 1.A conservatory order restraining the 1st and 2nd respondents, their agents, employees and/or servants, from mining operations, engaging in mineral dealing, excavating and/or any activity or land use that degrades or is likely to degrade the environment within Jibril area of Wabari ward, Garissa County
  2. 2.The 3rd to 5th respondents to ensure compliance with the conservatory order with the help of the Garissa County Police Commander
  3. 3.Each party to bear his own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 20, 21, 22, 23, 28, 35, 40, 42, 43(1)(a), 56(a), 63(1)-(4), 69, 70, 159, 162(2)(b), 165
  • Environment and Land Court ActSections 3, 13, 18, 19
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4, 23, 34
  • Mining ActSections 191, 202
  • Environment Management and Co-ordination Act
  • Community Land Act
  • Mining (Licence and Permit) Regulations, 2017Clause 4
Jurisdiction invoked
Articles 23 and 165 of the Constitution; Sections 3, 13, 18 and 19 of the Environment and Land Court Act (No. 19 of 2011)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamed Hussein Haji v Abdinoor Shariff Ahmed & 5 others [2018] KEELC 4433 (KLR)", Case Analysis (2018). ELC Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4433/eng@2018-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.