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ELCPartially AllowedPetition dated 16th October 2019 (filed 22nd October 2019)· [2020] KEELC 3826 (KLR)

Nyatike Minerals Marketing Co-operative Society Limited v Cabinet Secretary, Ministry of Petroleum and Mining & 5 others [2020] KEELC 3826 (KLR)

Environment and Land Court of Kenya
28 January 2020
GOG. M. A. Ongondo
3,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This petition, filed by a registered co-operative society on behalf of the residents of Nyatike Constituency and future generations engaged in small-scale gold and copper mining, challenged mining activities on land reference Muhuru/Kadem/Macalder/498, alleged to be public land registered in the name of the defunct South Nyanza County Council. The petitioner sought declarations that the land and its minerals were public land under Article 62 of the Constitution and that the 3rd, 4th and 5th respondents' mining without licences under the Mining Act, 2016 was illegal, together with restraining orders, removal of equipment, compensation and costs. Notably, the 1st, 2nd and 6th respondents (the Cabinet Secretary for Mining, the statutory Mining office and the Attorney General) supported the petition, deposing that the respondents held no valid mining licences, prospecting licences or permits, and that their mineral dealers (processing) licence and correspondence did not constitute mineral rights. The 3rd to 5th respondents contended they were authorised by the 1st respondent and had partnered with the local community. The court framed three issues: competence of the petition, lawfulness of the respondents' mining, and entitlement to reliefs. It found the petitioner duly registered and competent to sue; held the respondents' activities illegal for want of licences; and, guided by intergenerational and intragenerational equity, the precautionary principle and sustainable development, entered judgment for the petitioner on reliefs (a) to (f), (h) and (i). In lieu of compensation under relief (g), the court ordered restoration of the environment on the suit land, supervised by NEMA within ninety days, with costs to the petitioner.

Key legal issues

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01

Competence of the petition / locus standi of the petitioner

Holding

The petition was competent; the petitioner proved it was duly registered as a co-operative society under the Co-operative Societies Act and could sue in the public interest

Reasoning

The 3rd to 5th respondents contended the petitioner lacked legal capacity, but the petitioner annexed a certificate of registration dated 28th January 2014 under the Co-operative Societies Act (Cap 490). The court found it clear the petitioner was legally registered to initiate the petition, and the 1st and 2nd respondents affirmed the petition was brought in good faith for the public good.

p. 4
02

Whether the 3rd, 4th and 5th respondents were mining lawfully

Holding

The respondents' activities on the suit land were illegal as they held no mining licence, permit or mineral rights, and their documentation did not comply with the Mining Act, 2016

Reasoning

The court found the suit land was public land vested with minerals under Article 62. The 1st and 2nd respondents confirmed the respondents held no valid licence; the 'KAH' documents were letters of approval requiring alignment with the Mining Act, not licences. The respondents' reply was unsubstantiated, and the petitioner's case was proved on a balance of probabilities.

p. 5
03

Entitlement to the reliefs sought, including environmental principles

Holding

The petitioner was entitled to the declaratory, restraining and removal reliefs; in lieu of compensation the court ordered environmental restoration supervised by NEMA within 90 days

Reasoning

Guided by intragenerational and intergenerational equity, the precautionary principle and sustainable development under EMCA and Article 10 national values, the court precluded the respondents from illegal mining. Although compensation was available under Article 23(3)(a), the court considered restoration the appropriate alternative remedy given the nature of the petition.

p. 5

Legal principles established

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  • No person may deal in minerals without being registered as a dealer and issued with a mineral dealers licence by the Commissioner
  • All minerals and mineral oils in Kenya are public land vested in the National Government in trust for the people of Kenya
  • A letter of approval or expression of interest is not a mining licence, prospecting licence or permit under the Mining Act

Court orders

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  1. 1.Judgment entered for the petitioner against the respondents in terms of orders (a), (b), (c), (d), (e), (f), (h) and (i) as sought in the petition dated 16th October 2019
  2. 2.In lieu of compensation (relief (g)), the environment in respect of the suit land shall be restored to its position before the illegal mining activities of the 3rd, 4th and 5th respondents
  3. 3.The restoration shall be supervised by the National Environmental Management Authority (NEMA) within ninety (90) days from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23(3)(a), 26, 27, 28, 42, 43, 56, 62(1)(f), 62(3), 70, 156(4)(a), 159(2)(e), Preamble
  • Mining Act, 2016sections 6, 10, 11, 12(1), 12(3), 13, 15, 16, 17, 20, 21, 159
  • Environmental Management and Co-ordination Act (EMCA)sections 2, 18 (as cited), 63, 65, Second Schedule
  • Evidence Act, Cap 80sections 107-110
  • Co-operative Societies Act, Cap 490sections 2, 4, 12, 27(1)
  • Environment and Land Court Act, 2015section 18
  • Forest Actnot specified
  • Companies Act, Cap 490 (as cited in judgment)not specified
  • Mining (Licence and Permit) Regulations, 2017 / Legal Notice No. 88 of 2017Part 7(2)(h)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 11(1)

Cases cited (9)

  • Mohamed Hussein Haji v Abdi Noor Shariff Ahmed and 5 others
    (2018) eKLR
  • Tom Mboya Odege v Cabinet Secretary, Ministry of Petroleum and Mining and 3 others
    (2019) eKLR
  • Anarita Karimi Njeru v Republic (No.1)
    (1976-80) 1 KLR 1272 at 1275
  • Matemu Mumo v Trusted Society of Human Rights Alliance and 5 others
    (2013) eKLR 1 KLR
  • Communication Commission of Kenya & 5 others v Royal Media Services Limited and 5 others
    (2014) eKLR
  • Peter Makau Musyoka and 19 others v PS Ministry of Energy and 14 others
    (2014) eKLR
  • Tim Busienei and 2 others v Director General NEMA and another
    (2007) eKLR
  • Galaxy Paints Limited v Falcon Grounds Limited
    (2006) 2 EA 385
  • Macharia Mwangi Maina and 87 others v Davidson Mwangi Kagiri
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - enforcement of Bill of Rights petition (Articles 10, 26, 27, 28, 42, 43, 56, 62, 70 and 23), read with the Mining Act, 2016 and EMCA

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, "Nyatike Minerals Marketing Co-operative Society Limited v Cabinet Secretary, Ministry of Petroleum and Mining & 5 others [2020] KEELC 3826 (KLR)", Case Analysis (2020). Petition dated 16th October 2019 (filed 22nd October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3826/eng@2020-01-28

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