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ELCDismissedEnvironment and Land Petition E001 of 2023· [2023] KEELC 21802 (KLR)

Cheseret Arap Korir v Karebe Gold Mining Ltd & Equatorial Land Holdings Limited

Environment and Land Court
29 November 2023
MMM. N. Mwanyale
4,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to hear a landowner's constitutional claim against a gold miner because the same dispute was already pending in an ordinary civil suit.

What this practically means

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Executive summary

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The Petitioner, Cheseret Arap Korir, filed a constitutional petition at the Environment and Land Court at Kapsabet alleging that Karebe Gold Mining Ltd and Equatorial Land Holdings Limited violated his property rights under Article 40 of the Constitution by continuing gold mining on his parcels Nandi/Chemase/974 and Nandi/Legmet/224 after a 10-year mining lease expired in 2019, without his consent as landowner as required by Regulation 23 of the Mining (Licences and Permits) Regulations 2017. He sought a declaration of violation, a permanent injunction, compensation, mesne profits and costs. The Respondents filed a preliminary objection on res judicata and sub judice grounds, which was dismissed on 22 June 2023 as requiring interrogation of facts; the Petitioner then withdrew his interlocutory application and the petition proceeded by written submissions. The Respondents argued the petition failed the Anarita Karimi Njeru specificity threshold and that no evidence of trespass, house cracks or hearing impairment attributable to blasting was adduced. The court framed four issues and, having perused the record of Kapsabet ELC No. 009 of 2022 (Karebe Gold Mining & Another v Cheseret Arap Korir & Another), found the Petitioner had pleaded the same issues of lack of consent and illegal mining licences, and similar reliefs, in his defence and counterclaim in that pending suit. Noting that the Ministry of Petroleum and Mining - which issued the impugned licences - was a party to the civil suit but not the petition, and applying the Supreme Court's principle of constitutional avoidance in Communication Commission of Kenya v Royal Media Services, the court held the dispute should be resolved in the civil suit under the Mining Act. The petition was dismissed with each party bearing its own costs. The Petitioner's further affidavit and submissions filed out of time and without leave were not considered.

Key legal issues

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01

Whether the petition was sub judice the pending civil suit Kapsabet ELC No. 009 of 2022

Holding

Yes - the same issues of lack of consent and allegedly illegal mining licences, and similar reliefs, were already pleaded in the Petitioner's defence and counterclaim in the civil suit

Reasoning

The court perused the record of Kapsabet ELC No. 009 of 2022 and found the Petitioner's defence and counterclaim pleaded the same issues of lack of consent and illegal mining licences, and sought similar reliefs save for a geophysics investigation prayer. The Ministry of Mining, a necessary party on the licence validity question, was a party to the civil suit but not to the petition.

p. 8
02

Whether the court should determine the constitutional questions raised

Holding

No - the court applied the principle of constitutional avoidance since the dispute could be wholly resolved in the civil suit on the Mining Act and its regulations

Reasoning

Relying on Communication Commission of Kenya v Royal Media Services, the court held that where a dispute can be resolved on another basis - here interpretation and application of the Mining Act and regulations in the pending civil suit where the Ministry of Mining is a party - the constitutional question should not be reached. The petition therefore had to fail.

p. 8
03

Whether the petition met the constitutional pleading threshold (Anarita Karimi Njeru)

Holding

Not determined - the court declined to consider the second and third issues after finding the petition sub judice and applying constitutional avoidance

Reasoning

Although the Respondents argued the petition failed the Anarita Karimi Njeru specificity threshold, the court did not rule on this issue, holding that once the petition was found sub judice and the avoidance principle applied, the second and third issues for determination would not be considered.

p. 9

Legal principles established

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  • A court will not determine a constitutional issue where the matter may properly be decided on another basis (principle of constitutional avoidance)
  • A party should not clothe an ordinary civil dispute already pending before the court with a constitutional armour during the pendency of the civil suit

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 2(1)
  • Constitution of KenyaArticle 2(2)
  • Constitution of KenyaArticle 2(4)
  • Constitution of KenyaArticle 3
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticles 19, 20, 21, 22(e), 23, 24, 28, 40(1)(2), 43(1)(b)
  • Mining (Licences and Permits) Regulations, 2017Regulation 23
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 21 rule 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1)
  • Mining Actnot specified

Cases cited (7)

  • Mukisa Biscuit case

    Definition of a preliminary objection as a pure point of law

  • Anarita Karimi Njeru v Republic
    (1979) eKLR

    Constitutional petitions must be pleaded with reasonable precision - provision infringed and manner of infringement

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No 290 of 2012

    Petition citing constitutional articles without particulars of infringement fails the Anarita Karimi Njeru threshold

  • Trusted Society for Human Rights Alliance v Attorney General & others
    Nairobi High Court Petition No. 229 of 2012

    Pleading with particularity in constitutional petitions

  • Kenya Youth Parliament & 2 others v AG and another
    Nairobi Constitutional Petition No. 101 of 2011

    Constitutional pleading threshold

  • Githunguri Dairy Farmers Cooperative Society v The Attorney General & 2 others
    HCCP No. 257 of 2015

    Constitutional pleading threshold

  • Communication Commission of Kenya v Royal Media Services
    (2014) eKLR

    Principle of constitutional avoidance - court will not determine a constitutional issue where the matter may be decided on another basis

Jurisdiction invoked
Articles 19, 20, 21, 22(e), 23, 24, 28, 40(1)(2) and 43(1)(b) of the Constitution of Kenya (enforcement of Bill of Rights)

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, "Cheseret Arap Korir v Karebe Gold Mining Ltd & Equatorial Land Holdings Limited", Case Analysis (2023). Environment and Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21802/eng@2023-11-29

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