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ELCPartially AllowedPetition No. 7 of 2018· [2019] KEELC 4618 (KLR)

Tom Mboya Odege v Cabinet Secretary, Ministry of Petroleum and Mining & 3 others [2019] KEELC 4618 (KLR)

Environment and Land Court of Kenya
15 January 2019
GOG. M. A. Ongondo
2,161 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped unlicensed gold mining at Macalder, ordering machinery removal and environmental restoration, but refused compensation to local residents.

What this practically means

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Executive summary

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The petitioner, the Member of Parliament for Nyatike Constituency, filed a petition under Articles 22, 50 and 258 of the Constitution alleging that the 3rd respondent, a company whose directors are Chinese nationals, was carrying out illegal gold and copper mining in Macalder area, Migori County, on trust land, without a licence or permit, without parliamentary ratification, environmental impact assessment or public participation, and without consents from the County Government, National Land Commission and Kenya Forest Service. He sought declarations of violations of Articles 26, 27, 28, 43 and 56, an injunction, removal of machinery, compensation and royalties, and environmental restoration. The 1st, 2nd and 4th respondents (state mining and environmental authorities) supported the petition, confirming through an affidavit by their acting director that no licence was ever issued and that stop orders against the 3rd respondent were ignored. The 3rd respondent opposed by grounds of opposition, denying any mining activity and alleging the petition was vexatious. The court framed two issues: whether the alleged activities violated the right to a clean and healthy environment, and whether the petitioner was entitled to the reliefs sought. Guided by Article 10 national values, Article 60 land policy principles and section 18 of the Environment and Land Court Act, the court found the petition proved on a balance of probability, followed Mohamed Hussein Haji, and allowed the petition in terms of orders (a) to (e) and (g), granting declarations, an injunction, removal of equipment and environmental restoration under NEMA supervision, while declining the discretionary compensation and royalties order (f). Judgment delivered at Migori on 15th January 2019 by G. M. A. Ongondo, Judge.

Key legal issues

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01

Whether the 3rd respondent's unlicensed mining violated environmental and constitutional rights

Holding

Yes - the mining was conducted without a licence or permit, without environmental impact assessment or public participation, violating Articles 42, 69 and 70 of the Constitution, the Mining Act 2016 and EMCA

Reasoning

The court found that the 3rd respondent carried out gold and copper mining without any licence or permit from the mining authorities, who had issued stop orders that were ignored. No environmental impact assessment or public participation preceded the activities. Relying on Articles 42, 69 and 70, the principles of land policy under Article 60 and public land provisions under Article 62(1), and section 18 of the Environment and Land Court Act, the court held the petition proved on a balance of probability and followed Mohamed Hussein Haji where similar illegal mining was stopped.

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02

Whether the petitioner was entitled to the reliefs sought

Holding

Partially - declaratory and prohibitory reliefs together with environmental restoration were granted; the compensation/royalties order (f) was declined

Reasoning

The court allowed the petition in terms of orders (a) to (e) and (g), granting declarations of violation, an injunction against continued illegal mining, removal of plant and machinery, and environmental restoration under NEMA supervision. It declined order (f) on compensation and royalties, holding it to be a discretionary relief under Article 70(2)(c) and (3) which, in view of the character of the petition including the restoration order, ought not to issue.

p. 3

Legal principles established

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  • Unlicensed mining in trust land without requisite consents, parliamentary ratification, environmental impact assessment or public participation violates the constitutional right to a clean and healthy environment
  • This Court is bound by the national values and principles of governance under Article 10 of the Constitution, including sustainable development and participation of the people, in interpreting and applying the law

Court orders

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  1. 1.A declaration that the right to life and protection under Article 26, the right to dignity under Article 28 and the economic and social rights under Article 43 of the residents of Nyatike Constituency who eke out a living through gold mining in Macalder Area have been contravened by the 1st and 2nd respondents
  2. 2.A declaration that the refusal to allow and eviction of Nyatike Constituents from undertaking gold mining in Macalder area while allowing non-residents and foreigners to illegally undertake the same contravenes Articles 27 and 56 of the Constitution
  3. 3.A declaration that the 3rd respondent's mining activities in Macalder area without licences are ultra vires the Mining Act, 2016 and the Forests Act and are illegal, null and void
  4. 4.An order restraining the 3rd respondent from continuing with illegal and unlawful gold mining activities in Macalder area, Nyatike Constituency
  5. 5.An order that the 3rd respondent remove forthwith from the site in Macalder area any plants, machineries, equipments, implements and tools erected there
  6. 6.An order directing the 3rd respondent to restore the environment at the mining site under supervision of the National Environmental Management Authority

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 22(1) and (2)(c), 25(c?), 26, 27, 28, 42, 43, 50(1), 56, 60, 62(1), 69, 70, 258(1) and (2), Preamble
  • Mining Act2016; sections 11, 200 and 202
  • Environmental Management and Coordination Act (EMCA)No. 8 of 1999; section 48; Part VI (sections 58 to 68)
  • Forests Act2005
  • Environment and Land Court ActSection 18
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23(1) and 24(1)

Cases cited (2)

  • Mohamed Hussein Haji -v- Abdi Noor Shariff Ahmed and 5 others
    (2018) eKLR
  • Great Lakes Transport Co. (U) Ltd -v- Kenya Revenue Authority
    (2009) KLR 720
Jurisdiction invoked
Articles 22(1) and (2)(c), 50(1) and 258(1) and (2) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tom Mboya Odege v Cabinet Secretary, Ministry of Petroleum and Mining & 3 others [2019] KEELC 4618 (KLR)", Case Analysis (2019). Petition No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4618/eng@2019-01-15

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