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ELCDismissedEnvironment & Land Case 423 of 2017· [2023] KEELC 17615 (KLR)

Mbiriri v Kigo & 2 others

Environment and Land Court of Kenya
25 May 2023
12,434 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 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

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Executive summary

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The plaintiff, a long-standing licensed miner, sued for a permanent injunction, a declaration that the defendants lacked authority to confer mining rights over the 'Riziki' mining locations (1970-1977) in Taita Taveta, and general and exemplary damages, after finding the 1st and 2nd Defendants mining on his locations under a consent issued by the 3rd Defendant, the registered owner of the 14,591-hectare ranch land. The 1st and 2nd Defendants claimed they had the landowner's consent and agreement of 2015/2017; the 3rd Defendant asserted indefeasible private title and denied the plaintiff ever obtained its consent. The court framed three issues: merit, entitlement to reliefs, and costs. It held that minerals are public land vested in the national government in trust for the people under Articles 61 and 62 of the Constitution and Section 6 of the Mining Act 2016; that mining rights over private land require the registered owner's consent under Section 37; and that no person may mine without a statutory permit. The plaintiff's registrations had lapsed (last valid to 2009, business permit to 31st December 2017), he never obtained the landowner's consent, and the defendants likewise held no statutory licences. The suit was dismissed in its entirety; interim orders were vacated so that no mining may occur until statutory compliance; a declaration issued vesting the Riziki minerals in the National Government administered by the National Land Commission; and each party was ordered to bear its own costs since none succeeded.

Key legal issues

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01

Whether the Plaintiff was entitled to a permanent injunction protecting his claimed mining rights

Holding

No - the injunction was refused because the Plaintiff had no valid subsisting permits for 2017 and never obtained the landowner's consent

Reasoning

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.

p. 16
02

Ownership of minerals found on private land

Holding

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

Reasoning

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.

p. 17
03

Whether any party held valid mining rights over the Riziki locations

Holding

None of the parties had the requisite permits, licences or consents under the Mining Act 2016

Reasoning

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.

p. 19
04

Costs

Holding

Each party to bear their own costs because none succeeded

Reasoning

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.

p. 20

Legal principles established

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  • 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

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  1. 1.Judgment entered that the suit filed by the Plaintiff through a Plaint dated 20th November, 2017 is unmeritorious and hence dismissed
  2. 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. 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. 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. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40(1) and (2), 60 to 62(1)(f), 61, 62(3), 63, 64, 66(2), 69, 71
  • Mining ActCap. 306 (repealed Act), Sections 7(1)(m); Mining Act 2016 Sections 6, 10, 32(3b), 36, 37(1),(2),(3), 38, 79, 136, 139(1), 142, 152, 202, 203
  • Civil Procedure ActCap. 21, Section 27(1)
  • Civil Procedure Rules, 2010Order 11; Sections 1A, 3 & 3A; Order 40 Rules 6 & 7
  • Land Registration ActNo. 3 of 2012, Sections 24, 25(1), 26
  • Environment Management and Co-ordination ActSection 58 (EIA/NEMA requirement)
  • Gold Mines Development Loans Actmentioned as part of mining legal framework
  • Continental Shelf Actmentioned as part of mining legal framework
  • Former Constitution of KenyaSections 117 to 119 (Trust Land)

Cases cited (16)

  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    [2020] eKLR

    Test for granting mandatory injunctions differs from Giella v Cassman Brown

  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR

    Threshold for mandatory injunction higher than prohibitory injunction

  • Kenya Breweries Limited v Washington Okeyo
    (2002) EA 109

    Principles governing grant of mandatory injunctions per Halsbury's Laws

  • Jay Super Power Cash and Carry Limited v Nairobi City Council and 20 others
    CA 111/2002

    Trespasser should give way; wrongdoer cannot keep what he has taken because he can pay

  • Sharif Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR

    Courts reluctant to grant mandatory injunctions at interlocutory stage but will act where wrong is prima facie established

  • Andrew Kamau Mucuha v Ripples Limited
    Civil Appeal 19 of 1998

    Mandatory injunctions not granted interlocutorily absent special circumstances and clear cases

  • Nation Media Group & 2 others v John Harun Mwau
    (2014) eKLR

    Special circumstances and higher standard required for interlocutory mandatory injunctions

  • John Gitonga Kihara v Kasingau/Kasigau Ranching (D.A)
    1994

    Distinguished by Plaintiff; relied on by 3rd Defendant on expiry of consent/bare licence

  • Kenya Wildlife Service v Abraham M'ngai M'itumit
    Meru High Court Civil Appeal 48 of 2020

    There should be a remedy for the wrong suffered

  • Titus Musau Ndome v Cabinet Secretary, Ministry of Mining & 2 others
    [2017] eKLR

    Claim to mine without landowner's consent is illusory and unsupported

  • Kasiagu Ranching (D.A) Ltd v John Gitonga Kihara & Others

    Bare licence confers no property interest and is revocable at licensor's will (Salmond on Torts)

  • Muthoni Kihara & Another v Commissioner of Mines and Geology & Another
    [2017] eKLR

    Commissioner had no power to renew licence by merely notifying landowner; adopted by the court

  • Elizabeth Chemutai Chepkwony v Janeth Chepkoech & Another
    [2019] eKLR

    Rights of registered landowner protected under Land Registration Act

  • Jabir Rai Singh v Tarchalans Singh
    (2014) eKLR

    Costs follow the event

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd

    Principles on costs following the event

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Ano
    (2016) eKLR

    Principles on costs

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

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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, "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.