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ELCDismissedEnvironment & Land Petition 24 of 2021· [2023] KEELC 20126 (KLR)

Peter v Cabinet Secretary, Ministry of Petroleum and Mining & 7 others

Environment and Land Court
26 September 2023
NMN. A. Matheka
3,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a miner's constitutional petition because he pleaded no specifics and should have used the Mining Act's dispute process instead.

What this practically means

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Executive summary

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The Petitioner, a member of Mwatate Small Scale Miners Self Help Group, petitioned the Environment and Land Court at Mombasa alleging that the 3rd and 4th Respondents (the Regional Mines Officer and the Deputy County Commissioner) unlawfully, ultra vires and mala fides ordered his eviction from mining area MP/2018/0241 by issuing notices to vacate mining location MP/2018/0244, a different delineated area. He sought declarations of violation of Articles 10, 27, 47, 48, 60, 61 and 64, certiorari to quash the notices, an order of prohibition, and general damages. The Respondents, including Baraka Mining and Minerals Ltd (holder of mining permits MP/2018/0241 and MP/2018/0244), contended the Petitioner was mining illegally within their licensed Specified Area, that his contracts were irregularly executed by a director of unsound mind, and that he declined to regularise his position at meetings held in December 2020 and March 2021. The court, applying Anarita Karimi Njeru as reaffirmed in Mumo Matemu and Onsomu v Magoha, held that the Petitioner cited numerous constitutional Articles but pleaded no particulars and adduced no evidence of violation. It further held the claim was essentially commercial and contractual, properly cognisable under Section 156 of the Mining Act 2016 or an ordinary suit, and that dressing it as a constitutional petition was a misuse and abuse of court process. The entire Petition was dismissed with costs.

Key legal issues

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01

Whether the Petition met the Anarita Karimi Njeru threshold

Holding

It did not; the Petitioner cited many Articles but pleaded no particulars of infringement

Reasoning

The court applied Anarita Karimi Njeru as restated in Mumo Matemu and Onsomu v Magoha. Despite referencing numerous constitutional Articles, the Petitioner failed to demonstrate with precision and evidence how each right was violated, infringed or threatened by the Respondents' actions.

p. 5
02

Whether the dispute was justiciable as a constitutional petition

Holding

No; the claim was commercial/contractual and should have been brought under Section 156 of the Mining Act 2016 or an ordinary suit

Reasoning

The Petitioner himself framed the grievance as interference with freedom of contract and meddling in private matters, indicating a common law contract claim. The Mining Act 2016 prescribes a specific dispute-resolution procedure for mining rights grievances, making constitutional litigation inappropriate and an abuse of process.

p. 5

Legal principles established

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  • A constitutional petition must, with reasonable precision, identify the provisions infringed, the manner of infringement and the remedy sought
  • A party with a purely commercial or contractual grievance should not dress it in constitutional garb; doing so is an abuse of court process

Court orders

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  1. 1.The entire Petition is dismissed with costs
Jurisdiction invoked
Article 22(1) and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); Environment and Land Court jurisdiction

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, "Peter v Cabinet Secretary, Ministry of Petroleum and Mining & 7 others", Case Analysis (2023). Environment & Land Petition 24 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20126/eng@2023-09-26

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