Mboe Sambu Resource Limited v Aden Hussein Mohammed [2019] KEELC 2228 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Sustainability of the Defendant's preliminary objection
The preliminary objection failed because it raised contested factual matters requiring evidence
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.
Whether the Plaintiff held a valid special prospecting licence
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
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.
Whether the Plaintiff established a prima facie case for temporary injunction
No prima facie case was established; the application for temporary injunction failed
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.
Legal principles established
#- 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
#- 1.The Defendant's preliminary objection is dismissed
- 2.The Plaintiff's Notice of Motion dated 15th October 2018 is dismissed with costs to the Respondent
- 3.The temporary injunction granted in favour of the Plaintiff/Applicant on 30th October 2018 is vacated and discharged
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.