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ELCOtherELC No. 423 of 2017· [2022] KEELC 1260 (KLR)

Joseph Kamau Mbiriri v Robert Kiwuwa Kigo & 2 others [2022] KEELC 1260 (KLR)

Environment and Land Court
9 February 2022
LNL. L. Naikuni
2,591 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 ruled the plaintiff could keep mining pending trial, confirming that mining on private land needs the owner's consent under the Mining Act.

What this practically means

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Executive summary

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This ruling/direction by the Environment and Land Court at Mombasa (Naikuni J) arose during the pendency of the trial of a mining dispute. The Plaintiff, a licensed miner claiming registration of mining locations (christened 'Riziki') in Taita Taveta since 1978, sued the Defendants after they allegedly entered his mining location in 2017 claiming to have obtained consent to mine from the 3rd Defendant, the alleged registered owner of the land. At a mention on 29th November 2021, counsel drew the court's attention to an earlier direction of 21st January 2020 that status quo be maintained, and asked the court to interpret its nature, meaning and scope, since the parties disagreed on what it entailed while mining continued. The Defendants complained that the Plaintiff was mining at high speed to their prejudice; the Plaintiff relied on Section 37 of the Mining Act. Framing two questions - the interpretation of the status quo order and the future conduct of the case - the court reviewed the procedural history, including the 2017 temporary injunction that was compromised by consent on 19th September 2019 to allow trial. It held that the status quo order replaced the interim orders, invoked its inherent powers under Section 3(1) of the Environment and Land Court Act, Sections 101 and 150 of the Land Registration and Land Acts, and Article 159 of the Constitution, extended the interim orders until final determination, directed that Section 37(1) and (3) of the Mining Act take effect allowing the Plaintiff to continue mining, fast-tracked the suit to be finalized within ninety days, and ordered each party to bear its own costs. The judgment contains several internal date inconsistencies.

Key legal issues

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01

Interpretation of the status quo order made on 21st January 2020

Holding

The status quo encompasses the Plaintiff's right to continue mining on the suit location pursuant to Section 37 of the Mining Act, and the court invoked its inherent powers to extend the earlier temporary injunction orders until final determination

Reasoning

The court defined status quo by reference to Black Law Dictionary as the situation currently existing. Noting that the interim injunction orders of 2017 were compromised by consent on 19th September 2019 without clarity as to whether they had been extended, the court concluded that the status quo order replaced those interim orders. Exercising inherent powers and the oxygen rule, it extended the injunction and activated Section 37(1) and (3) of the Mining Act to allow the Plaintiff to continue mining.

p. 4
02

Statutory right to mine pending determination of the dispute

Holding

Section 37(1) and (3) of the Mining Act allows the Plaintiff to continue mining until the matter is heard and determined

Reasoning

Mr. Gaita for the Plaintiff relied on Section 37 of the Mining Act, which grants a person consent rights over mining activities on private land. The court accepted that the provision should take effect, permitting the Plaintiff to continue mining pending the full hearing and determination of the suit.

p. 4

Legal principles established

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  • Minerals and mineral oils constitute public land under Article 62 of the Constitution
  • On private land, mineral rights may only be granted with the consent of the registered proprietor under Section 37 of the Mining Act

Court orders

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  1. 1.Extension of the temporary injunction orders granted on 17th November 2017 until the matter is heard and finally determined
  2. 2.That the provisions of Section 37(1) and (3) of the Mining Act No. 12 of 2016 take effect allowing the Plaintiff to continue mining until the matter is heard and determined
  3. 3.That the matter be granted first priority and fast-tracked to be finalized in the next ninety (90) days
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4; Order 51 Rule 1
  • Environment and Land Court ActSection 13(17); Section 3(1)
  • Civil Procedure ActSections 3 and 3A
  • Constitution of KenyaArticle 62; Articles 60 to 62(1)(f), 66(2), 69 and 71; Article 159(1) and (2)
  • Mining ActSections 37(1), 37(3) and 38
  • Land Registration ActSection 101
  • Land ActSection 150
  • Gold Mines Development Loans Act
  • Continental Shelf Act
Jurisdiction invoked
Inherent powers under Section 3(1) of the Environment and Land Court Act, Section 101 of the Land Registration Act, Section 150 of the Land Act and Article 159(1) and (2) of the Constitution of Kenya

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, "Joseph Kamau Mbiriri v Robert Kiwuwa Kigo & 2 others [2022] KEELC 1260 (KLR)", Case Analysis (2022). ELC No. 423 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1260/eng@2022-02-09

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