Mbiriri v Kigo & 2 others
The bottom line
#Kenya's Environment and Land Court dismissed a miner's suit, confirming that minerals on private land belong to the State and no one may mine without valid permits.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was entitled to a permanent injunction protecting his claimed mining rights
No - the injunction was refused because the Plaintiff had no valid subsisting permits for 2017 and never obtained the landowner's consent
The court distinguished permanent from temporary injunctions, then examined the evidence. The Plaintiff's last Certificates of Registration expired in 2009 and his Single Business Permit expired on 31st December 2017 with no proof of renewal. He vacated the site for about two years, never conducted an official search on ownership, and never obtained the registered owner's consent as mandated by Section 37 of the Mining Act 2016. The court found no special circumstances or clear case justifying the mandatory/permanent injunction.
Ownership of minerals found on private land
Minerals are public land vested in the national government in trust for the people of Kenya under Article 62 of the Constitution and Section 6 of the Mining Act 2016
The court analysed Articles 61, 62, 63 and 64 of the Constitution classifying land, held that minerals and mineral oils constitute public land vested in the national government, and read Section 6 of the Mining Act 2016 as vesting all minerals in their natural state in the national government irrespective of private ownership of the surface land. Section 37 nonetheless requires the registered owner's consent for mineral rights over private land.
Whether any party held valid mining rights over the Riziki locations
None of the parties had the requisite permits, licences or consents under the Mining Act 2016
The Plaintiff's registrations lapsed years before the alleged infringement; the 1st and 2nd Defendants produced no licences or permits under the repealed Act or the 2016 Act, relying only on the landowner's consent; and the 3rd Defendant, though registered proprietor of the land, never obtained mineral rights from the State. The court also endorsed the submission that the Commissioner could not renew licences by mere notification of the landowner.
Costs
Each party to bear their own costs because none succeeded
Applying Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, the court noted the rule compensates rather than penalises. Since no party obtained the reliefs sought, it exercised discretion to order each party to bear their own costs.
Legal principles established
#- Minerals in their natural state in Kenya are vested in the national government in trust for the people of Kenya, irrespective of private land ownership
- Prospecting and mining rights over private land require the express consent of the registered owner under Section 37 of the Mining Act, 2016
- No person may search for, prospect or mine any mineral in Kenya without a permit or licence, and private landowners must themselves obtain mining rights from the relevant authorities
- The Commissioner for Mines had no power to renew a prospecting or mining licence by simply notifying the landowner of the intention to renew
Court orders
#- 1.Judgment entered that the suit filed by the Plaintiff through a Plaint dated 20th November, 2017 is unmeritorious and hence dismissed
- 2.A declaration that the mining area known as Riziki mines in locations 1970 to 1977 belongs to the National Government of Kenya in trust of the people of Kenya and shall be administered by the National Land Commission under Article 62(1)(f)(3) and (4) of the Constitution and Sections 37(1), (2) and (3) of the Mining Act, 2016
- 3.An order that for any mining activities on the Riziki Location, the 3rd Defendant has to make appropriate application to the Ministry of Mining, Blue Economy and Maritime Affairs in accordance with Sections 37(1), (2), (3) and 38 of the Mining Act, 2016
- 4.The temporary orders granted on 17th November, 2020 and 9th February, 2022 having lapsed stand vacated and/or discharged under Order 40 Rules 6 & 7 of the Civil Procedure Rules, 2010, with no mining activities on the suit property until the directions are complied with
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over mining rights on land; powers under Sections 1A, 3 & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbiriri v Kigo & 2 others", Case Analysis (2023). Environment & Land Case 423 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17615/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.