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ELCDismissedEnvironment & Land Petition E002 of 2022· [2023] KEELC 18436 (KLR)

Kavii v Base Titanium Limited & 2 others

Environment and Land Court
29 June 2023
ADA.E. Dena
3,726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenyans can take mining-related environmental complaints straight to the Environment and Land Court without first going through the Mining Act's compensation process.

What this practically means

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Executive summary

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This ruling by A.E. Dena J of the Environment and Land Court at Kwale determined a preliminary objection by Base Titanium Limited against a constitutional petition by Lemmy Mutua Kavii, a farmer whose land adjoins the respondent's mining operations. The petitioner alleged that mining activities caused severe environmental degradation, infringing his rights under Articles 10, 27, 28, 31, 35, 40, 42, 43, 47, 48, 69 and 70 of the Constitution, and sought declarations and damages including compensation and relocation. The 1st respondent objected that the court lacked jurisdiction because sections 153, 154, 155 and 157 of the Mining Act, 2016 vest compensation disputes in the Cabinet Secretary, that the petition offended Article 159(2), and that it was an abuse of process. The court framed a single issue: whether it had jurisdiction. It held that section 154 of the Mining Act is permissive rather than mandatory, and that section 154(c), allowing determination by a court of competent jurisdiction, preserves the ELC's original jurisdiction under section 13 of the Environment and Land Court Act and Article 162(2)(b). Relying on Agatha Jeruto Kimaswai and the recent Court of Appeal decision in NEMA v Kelvin Musyoka, the court found the substratum of the petition was the right to a clean and healthy environment, which the Mining Act cannot oust. The invitation to stay proceedings for the Cabinet Secretary was declined under Article 159(2)(b). The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether sections 153, 154, 155 and 157 of the Mining Act oust the jurisdiction of the Environment and Land Court

Holding

They do not; section 154 is permissive and section 154(c) preserves the court's jurisdiction.

Reasoning

The court read section 154 of the Mining Act as offering optional avenues for dispute resolution, including a court of competent jurisdiction. Unlike EMCA, the Mining Act does not mandate exhaustion. Section 13(1) and (3) of the Environment and Land Court Act confers original jurisdiction over environmental disputes and redress for violations of Articles 42, 69 and 70, which cannot be ousted by the Act.

p. 5
02

Whether the petition, being centred on compensation claims, should first go to the Cabinet Secretary under section 153(6)

Holding

No; the substratum of the petition is the right to a clean environment, not compensation.

Reasoning

The court found the pleaded cause of action was environmental degradation infringing constitutional rights, with compensation merely one of the reliefs. Following Agatha Jeruto Kimaswai and the Court of Appeal in NEMA v Kelvin Musyoka, the ELC retains jurisdiction over such constitutional claims notwithstanding the Mining Act's compensation mechanism.

p. 6
03

Whether proceedings should be stayed for the Cabinet Secretary to determine compensation

Holding

Stay declined.

Reasoning

The court held that justice must not be delayed under Article 159(2)(b) and, relying on the Mombasa Court of Appeal decision, declined to stay the petition in favour of the Cabinet Secretary's determination of compensation and relocation.

p. 7

Legal principles established

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  • The dispute resolution options in section 154 of the Mining Act are permissive, not mandatory, and section 154(c) preserves the original jurisdiction of competent courts including the Environment and Land Court.
  • The Mining Act does not oust the Environment and Land Court's jurisdiction under section 13(3) of the Environment and Land Court Act to redress violations of the right to a clean and healthy environment under Articles 42, 69 and 70.

Court orders

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  1. 1.The preliminary objection dated November 25, 2022 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23(1), 23(3), 24, 27, 28, 31, 35, 40, 42, 43, 47, 48, 50, 69, 70, 159(2), 162(2)(b), 165(3)(d)(ii)
  • Mining Act, 2016Sections 153, 154, 155, 157
  • Environment and Land Court ActSection 13
  • Environmental Management & Coordination ActSections 129, 129(3)

Cases cited (14)

  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others
    [2015] eKLR

    Duty to exhaust internal dispute resolution mechanisms before resorting to court

  • Benson Ambuti Adega & 2 Others v Kibos Distillers Limited & 5 Others
    [2020] eKLR

    Settled law on duty to exhaust alternative statutory remedies

  • Peter Nzeki & 14 Others v Base Titanium Limited & 4 Others
    [2021] eKLR

    Cited by 1st respondent on compensation disputes and premature approach to court

  • Afro Pride Limited v Zhongmei Engineering Group Ltd & Another
    [2019] eKLR

    Cited by 1st respondent on referral of compensation disputes to the Cabinet Secretary

  • William Odhiambo Ramogi & 2 Others v AG & 6 Others
    [2018] eKLR

    Alternative forums do not preclude High Court from hearing fundamental rights petitions in the first instance

  • East African Railways Corporation v Anthony Sefu
    [1973] EA

    Cited by petitioner on alternative forums

  • Okiya Omtatah Okoiti v Commissioner General Kenya Revenue Authority & 2 Others
    [2018] eKLR

    Cited by petitioner on exhaustion doctrine

  • Republic v Independent Electoral and Boundaries Commission & Another Exparte Coalition for Reform & Democracy & 2 Others
    [2017] eKLR

    Cited by petitioner on exhaustion of alternative remedies

  • Mercy Wangari Buku v National Environmental Authority & 3 Others
    [2021] eKLR

    Cited by petitioner on court's jurisdiction over environmental rights claims

  • County Government of Kitui v Sonata Kenya Limited & 2 Others

    Mentioned among petitioner's authorities

  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Jurisdiction must be raised and determined at the earliest opportunity; jurisdiction is everything

  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR

    Assumption of jurisdiction is regulated by the Constitution, statute and precedent

  • Agatha Jeruto Kimaswai v Attorney General & 3 others
    [2021] eKLR

    Section 129 EMCA does not oust ELC jurisdiction over Articles 42, 69 and 70 claims

  • National Environmental Management Authority v Kelvin Musyoka (Minor Suing through mother and Best friend Scholastica Khalati Shikanga) & 16 Others
    Mombasa Civil Appeal No E004 of 2020

    Section 129(3) EMCA cannot oust constitutional powers of courts; ELC has jurisdiction over environmental rights claims

Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act; Articles 23(1), 42, 69 and 70

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kavii v Base Titanium Limited & 2 others", Case Analysis (2023). Environment & Land Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18436/eng@2023-06-29

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