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ELCStruck OutJudicial Review Miscellaneous Application (Notice of Motion dated 21st January 2019)

Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)

Environment and Land Court of Kenya
22 October 2019
8,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a mining company's judicial review bid because it was re-litigating disputes courts had already decided.

What this practically means

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Executive summary

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The ex-parte applicant, Muthoni Kihara Mining Company Limited, moved the Environment and Land Court at Mombasa by Notice of Motion dated 21st January 2019 seeking certiorari to quash the decisions of 6th and 20th July 2018 by which the 1st and 3rd Respondents approved a Mining Permit (No.MP/2017/0003) over Mining Locations 1407/1-5 and 1439/1-4 on LR No.12199/4 Taita Taveta in favour of the 4th Respondent, Mwarimba Mining Co. Ltd. It also sought mandamus to reactivate its locations on the Mining Cadastre, an injunction against the 4th Respondent, declaratory orders as to its mining rights, prohibition against future permit applications pending compensation, and a declaration that leave granted on 14th January 2019 operated as a stay. The applicant contended the impugned decisions were ultra vires, irrational, procedurally unfair and infringed its property rights, the landowner's consent having been forged and earlier Court of Appeal judgments misinterpreted. The Respondents, the 4th Respondent and the Interested Party (Kutima Investments Limited, the registered landowner) opposed, arguing the suit was res judicata and an abuse of process, that the applicant's locations had been validly removed from the cadastre following judgments in Nairobi HC Misc. Appl. No. ELC 84 of 2011 and Civil Appeal No. 10 of 2014, and that private land may not be mined without landowner consent under Section 37(1) of the Mining Act, 2016. The court agreed: although res judicata strictly does not apply to judicial review, it retains inherent jurisdiction to terminate abusive proceedings. The applicant was attempting to re-litigate matters already finally decided and to sit on appeal over the Court of Appeal's judgment. The Notice of Motion was struck out with costs to the Respondents and the Interested Party.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether, in light of the decisions in Nairobi HC Misc. Appl. No. ELC 84 of 2011 and Civil Appeal No. 10 of 2014, the issues raised herein are res judicata or an abuse of the court process
  2. 2.Whether the administrative decision of the 1st and 3rd Respondents granting Mining Permit No.MP/2017/0003 to the 4th Respondent passed the Wednesbury test / was ultra vires
  3. 3.Whether the doctrine of lis pendens applies to these proceedings
  4. 4.Whether the leave granted on 14th January 2019 should operate as stay

Key legal issues

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01

Res judicata / abuse of process in judicial review proceedings

Holding

The issues raised were res judicata and the motion was struck out as an abuse of the court process

Reasoning

The applicant had litigated the same claim - that it held mining rights over LR No.12199/4 despite the landowner's refusal of consent - in Nairobi HC Misc. Appl. No. ELC 84 of 2011 and Civil Appeal No. 10 of 2014. Both courts dealt with the requirement of landowner consent and the issuance or renewal of licences. Although res judicata strictly does not apply to judicial review, the court has inherent jurisdiction to terminate abusive proceedings. The applicant should have sought interpretation and enforcement of the earlier judgments instead of re-litigating.

p. 8
02

Limits of judicial review against a prior appellate judgment

Holding

The ex-parte applicant was improperly asking the court to sit on appeal over the Court of Appeal judgment by asserting mining rights notwithstanding refusal of landowner consent

Reasoning

The applicant contended the impugned decision was influenced by an error of law - misinterpretation of Civil Appeal No. 10 of 2014. The court held it could not purport to review or reinterpret the Court of Appeal's judgment in first-instance judicial review proceedings; the proper course was to seek interpretation or enforcement in those earlier proceedings.

p. 8

Legal principles established

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  • A party cannot, by introducing a new party or re-framing pleadings, evade prior adjudication; bringing fresh proceedings over a matter already finally decided by a competent court is an abuse of process
  • A court of first instance cannot sit on appeal over a Court of Appeal judgment; the remedy is interpretation and enforcement in the proceedings in which the judgment was made
  • Although strictly res judicata under Section 7 of the Civil Procedure Act does not apply to judicial review proceedings, the court retains inherent jurisdiction to terminate proceedings that abuse its process in circumstances where res judicata principles would apply

Court orders

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  1. 1.The Notice of Motion application dated 21st January 2019 is struck out
  2. 2.Costs of the application to the Respondents and the Interested Party

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Sections 4 and 13 of the Environment and Land Court Act; Article 47 of the Constitution as read with Sections 7, 8, 9 and 11 of the Fair Administrative Action Act, 2015; Order 53 of the Civil Procedure Rules

Relief refused

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Orders of certiorari quashing the decisions of 6th July 2018 and 20th July 2018 granting Mining Permit No.MP/2017/0003 to the 4th Respondent

The issues were res judicata and the application was an abuse of the court process; the applicant was seeking to re-litigate matters already adjudicated upon

p. 8

Mandamus compelling the 2nd Respondent to reactivate the applicant's mining locations on the Mining Cadastre Portal

Same abuse of process finding

Temporary injunction against the 4th Respondent, declaration of mining rights, order of prohibition, and declaration that leave operates as stay

The entire Notice of Motion was struck out

p. 8

Costs

Costs of the application to the Respondents and the Interested Party

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the the result I find that the orders which commends to be made which I hereby make is the order striking out the notice of motion application dated 21st January 2019 with costs to the Respondents and the interested party.
p. 8Final orders - striking out
In my considered view, the issues raised herein are res judicata.
p. 8Res judicata
The ex-parte applicant's action no doubt is an abuse of the Court process.
p. 8Abuse of process
I am afraid I cannot pretend to sit on appeal on the Court of appeal's judgment, even the High Court one.
p. 8Limits of judicial review

Issues in the judgment

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minor

The ex-parte applicant's grounds cite 'Sections 2, 4, 7(1)(d), 30 and 79 of the Mining Act Cap 306 (repealed)' while other passages attribute section 7(1)(m) exclusions to the repealed Act and section 7(1) generally; the repeated reference to 'Civil Appeal No. 117 of 2005' versus 'Civil Appeal No. 117 of 2015' is internally inconsistent in the judgment text

minor

The Court of Appeal appeal number is inconsistently recorded as 'Civil Appeal No. 10 of 2014' and 'Civil Appeal No. 10 of 2015' in different passages of the same judgment

minor

The identity of the respondents is not fully set out in the extracted judgment; only '1st Respondent', '2nd Respondent', '3rd Respondent', '4th Respondent' and '5th Respondent' designations appear without full names in the coram, though the 4th Respondent is named Mwarimba/Mwairimba Mining Co. Ltd with inconsistent spelling

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, "Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)", Case Analysis (2019). Judicial Review Miscellaneous Application (Notice of Motion dated 21st January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/927/eng@2019-10-22

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