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ELCOtherNot stated in the ruling· [2020] KEELC 1655 (KLR)

Peter Nzeki & 14 others v Base Titanium Limited & 4 others [2020] KEELC 1655 (KLR)

Environment and Land Court
10 March 2020
CYC.K. Yano
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear mining-related constitutional petitions, so you don't have to exhaust Cabinet Secretary processes first.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determines a preliminary objection by the 1st respondent to the effect that the court lacked jurisdiction to entertain the petitioners' constitutional petition. The 1st respondent, through Mr. Oyatsi, argued that Sections 153(6), 155(b) and 158(8) of the Mining Act confer jurisdiction over compensation and resettlement disputes on the Cabinet Secretary for Mining, that the petitioners' grievances arose from the exercise of mineral rights and their admitted quest for compensation, and that their only route to the High Court was by appeal under Section 157 of the Act. Counsel relied on Samuel Kamau v Kenya Commercial Bank and Speaker of National Assembly v Karume, contending that where a statute prescribes a dispute-resolution mechanism, it must be followed. The petitioners countered that the petition raised constitutional questions beyond the Cabinet Secretary's remit; that Article 22(1) entitles them to approach the court; and that Section 154 of the Mining Act recognises determination 'through a court of competent jurisdiction', with Section 155 not being mandatory. The court held that although the disputes relate to mining rights and may be referred to the Cabinet Secretary under Section 155, Section 154(c) also permits court determination. Relying on Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which vests in the ELC jurisdiction over disputes relating to land, environment, mining and minerals, the court found itself the only forum mandated to grant redress for violations of rights relating to environment and land, dismissed the preliminary objection with costs.

Key legal issues

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01

Whether the Mining Act ousts the ELC's jurisdiction over compensation disputes arising from mining rights

Holding

The preliminary objection failed. Although disputes under the Mining Act may be referred to the Cabinet Secretary under Section 155, Section 154(c) also permits determination 'through a court of competent jurisdiction', and under Article 162(2)(b) and Section 13 of the ELC Act this court has original and appellate jurisdiction over disputes relating to land, environment, mining and minerals, including constitutional rights claims.

Reasoning

The court accepted that the petitioners' disputes relate to mining rights and that Section 155 permits referral to the Cabinet Secretary. However, Section 154(c) expressly contemplates determination of mineral-right disputes through a court of competent jurisdiction. The petition alleges violations of Articles 40, 28, 42, 43 and 47. The court held that it, not the Cabinet Secretary, is the forum constitutionally mandated to grant redress for such violations concerning environment and land.

p. 2

Legal principles established

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  • The Environment and Land Court is the only court mandated to hear and determine applications for redress for denial, violation or infringement of, or threats to rights and fundamental freedoms relating to the environment and land, including mining and minerals disputes.

Court orders

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  1. 1.The preliminary objection raised by the 1st Respondent is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(4), Article 22(1), Article 28, Article 40, Article 42, Article 43, Article 47, Article 162(2)(b)
  • Mining ActSections 153(6), 154(c), 155(b), 156, 157, 158(8); Part IX
  • Environment and Land Court ActSections 13(1), 13(2)(a), 13(2)(e)

Cases cited (7)

  • Samuel Kamau & Another –v- Kenya Commercial Bank and two others
    Sup. Ct. Civil Application No. 2 of 2011
  • Speaker of National Assembly – v- Karume
    (1992) KLR 425
  • Reuben Mwongela M'itelekwa (suing as the legal representative of the Estate of M'telekwa M'mucheke) –v- Paul Kigea Nabea & 2 Others
    (2019) eKLR
  • Daniel N. Mugendi –v- Kenyatta University & Others
    (2013) eKLR
  • East African Railways Corp –v- Anthony Sefu
    Dar-es-Salaam HCCA No. 19 of 1971 (1973) EA 327
  • Kenya National Chamber of Commerce & Industry – Machakos Branch & Another –v- Music Copyright Society of Kenya (MCSK) & 3 Others
    (2019) eKLR
  • Council of County of Governors –v- Lake Basin Development Authority & 6 Others
    (2017) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Peter Nzeki & 14 others v Base Titanium Limited & 4 others [2020] KEELC 1655 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1655/eng@2020-03-10

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