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ELCDismissedCase No 29 of 2018· [2019] KEELC 2228 (KLR)

Mboe Sambu Resource Limited v Aden Hussein Mohammed [2019] KEELC 2228 (KLR)

Environment and Land Court
28 June 2019
3,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a miner's injunction because he couldn't produce a valid prospecting licence—only a web-page printout.

What this practically means

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Executive summary

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The Plaintiff instituted suit in the Environment and Land Court at Narok (later transferred to Kisii) claiming to hold Special Prospecting Licence No. SPL/2015/0028 for 25 years over approximately 10 sq kms in Masurura Area, Kilgoris Sub-County. He alleged the Defendant encroached in February 2017 and began excavating for minerals, and sought a declaration of breach and a permanent injunction, together with a temporary injunction by Notice of Motion. The Defendant denied the Plaintiff held any valid licence, asserting its own mining licence over the area, and raised a preliminary objection on ownership, illegality under Sections 38 and 39 of the Land Act, prematurity and abuse of process, plus grounds of opposition denying locus standi. The court directed that the preliminary objection and the application be argued by written submissions. The court first dismissed the preliminary objection, holding that the points raised were contested factual matters requiring evidence, contrary to the Mukisa Biscuit principle that a preliminary objection must be a pure point of law. On the injunction application, the court examined Sections 72 to 84 of the Mining Act, which prescribe application requirements, conditions and term limits for prospecting licences (maximum 4 years, with limited renewals). The Plaintiff relied only on a cadastre web-page abstract, which did not show issue date, terms or approval conditions, and no application or fee was exhibited. The claimed 25-year term was inconsistent with the Act. Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court held the Plaintiff failed to establish a prima facie case; the sequential nature of the injunction conditions meant the application necessarily failed. The application was dismissed with costs to the Respondent, and the interim injunction of 30th October 2018 was vacated and discharged.

Key legal issues

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01

Sustainability of the Defendant's preliminary objection

Holding

The preliminary objection failed because it raised contested factual matters requiring evidence

Reasoning

Applying Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd, the court held that a preliminary objection must be a pure point of law. The matters pleaded in paragraph 16 of the defence, such as ownership and validity of the licence, were contested by the Plaintiff and could only be determined after taking evidence at trial. The objection was accordingly dismissed.

p. 3
02

Whether the Plaintiff held a valid special prospecting licence

Holding

The Plaintiff failed to demonstrate a valid licence; a web-page abstract is not a licence and the claimed 25-year term is contrary to the Mining Act

Reasoning

Sections 72 to 84 of the Mining Act prescribe application requirements, fees, conditions and term limits for prospecting licences: an initial licence cannot exceed 4 years and renewals are limited to 3 years, twice. The Plaintiff exhibited only a cadastre portal download showing no issue date, terms or approval conditions, and no application or fee evidence. A claimed 25-year licence is inconsistent with the statutory scheme, and any 2015 licence would have expired by 2018 absent renewal.

p. 4
03

Whether the Plaintiff established a prima facie case for temporary injunction

Holding

No prima facie case was established; the application for temporary injunction failed

Reasoning

Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court found the Plaintiff could not show a right apparently infringed because he failed to demonstrate a valid prospecting licence. Since the injunction conditions are sequential, failure on the first limb meant the second and third limbs need not be considered and the application necessarily failed.

p. 5

Legal principles established

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  • A preliminary objection cannot be raised where facts are in dispute and evidence must be ascertained; it must be a pure point of law
  • A licence must be issued by an authorized person, be signed, and carry terms and conditions; a web-page abstract is not a licence
  • The conditions for a temporary injunction are sequential; failure of the first (prima facie case) disposes of the application

Court orders

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  1. 1.The Defendant's preliminary objection is dismissed
  2. 2.The Plaintiff's Notice of Motion dated 15th October 2018 is dismissed with costs to the Respondent
  3. 3.The temporary injunction granted in favour of the Plaintiff/Applicant on 30th October 2018 is vacated and discharged

Authorities

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Legislation

  • Land ActSections 38, 39
  • Environment Management Coordination Act (EMCA)not specified
  • Mining ActSections 72, 73, 74, 78, 83 (and Sections 72–84 generally)

Cases cited (3)

  • Mukisa Biscuit Manufacturers Ltd -vs- West End Distributors Ltd
    [1969] EA 696
  • Giella -vs- Cassman Brown & Company Ltd
    [1973] EA 358
  • Mrao -vs- First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to minerals and land under the Mining Act and land legislation (transfer ordered from ELC Narok to Kisii ELC on 13th December 2018)

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, "Mboe Sambu Resource Limited v Aden Hussein Mohammed [2019] KEELC 2228 (KLR)", Case Analysis (2019). Case No 29 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2228/eng@2019-06-28

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