Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the doctrine of lis pendens applies to these proceedings
- 4.Whether the leave granted on 14th January 2019 should operate as stay
Key legal issues
#Res judicata / abuse of process in judicial review proceedings
The issues raised were res judicata and the motion was struck out as an abuse of the court process
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.
Limits of judicial review against a prior appellate judgment
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 21st January 2019 is struck out
- 2.Costs of the application to the Respondents and the Interested Party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
Costs of the application to the Respondents and the Interested Party
Quotable passages
#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.
In my considered view, the issues raised herein are res judicata.
The ex-parte applicant's action no doubt is an abuse of the Court process.
I am afraid I cannot pretend to sit on appeal on the Court of appeal's judgment, even the High Court one.
Issues in the judgment
#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
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.