Rarieda Artisinal Miners Savings and Credit Co-operative Society Ltd & 2 others v Amlight Resources Company Limited & 4 others; National Environmental Management Authority & 2 others (Interested Parties) (Environment and Planning Petition 1 of 2024 & Environment & Land Petition 2 of 2024 (Consolidated)) [2024] KEELC 4845 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped unlicensed gold mining in Siaya but threw out a contempt case over procedural mistakes.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the legal threshold
The PO met the three tests - a pure point of law, facts assumed correct, capable of disposing of the suit - on the jurisdiction limb
Applying Mukisa Biscuit and the Supreme Court's Mary Wambui Munene dictum, jurisdiction is a pure question of law to be determined from the start. Since the objection went to the court's jurisdiction and jurisdiction is everything, the PO was capable of disposing of the suit and met the threshold. The court nonetheless dismissed the jurisdictional challenge on its merits.
Whether the court has jurisdiction over the petition and contempt motion
The ELC has jurisdiction; EMCA and the Mining Act do not oust it
Following Nicholus's case, which departed from Kibos, alternative statutory remedies do not bar constitutional relief where inadequate. NECC's mandate is investigative and NET's appellate scope limited to licensing and restoration; neither can adjudicate constitutional rights violations. Article 162(2)(b) and Section 13(1) of the ELC Act confer original and appellate jurisdiction, and Section 154(c) of the Mining Act affirms access to the court.
Whether conservatory orders were warranted
Yes - all principles satisfied, including public interest given a death from a collapsed mining pit
A prima facie case was shown by admitted purchase of the property, stop orders and criminal charges; denial would stifle environmental rights; absent no licences being shown, the petition would be rendered nugatory; and human life being precious, public interest favoured the orders. The motion dated 2/04/2024 was allowed, rendering the Pet. 2 motion spent.
Whether the contempt motion dated 19/04/2024 was merited
No - dismissed for non-compliance with mandatory Rule 81.4 requirements
Section 5(1) of the Judicature Act is silent on procedure, so the England and Wales CPR Part 81 applies (per Christine Wangari Gachege). The requirements on personal service, penal notice and chronological summary of facts were not complied with; the supporting affidavit wrongly described the deponent as applicant; and the photograph breached Section 106B of the Evidence Act. Leave is also no longer required.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct and cannot be raised if any fact has to be ascertained or judicial discretion exercised
- The availability of an alternative statutory remedy does not necessarily bar resort to the ELC for constitutional relief; the ELC has jurisdiction under Articles 22, 23(3) and 162(2)(b) over alleged violations of the right to a clean and healthy environment
- The ELC has original and appellate jurisdiction over matters under EMCA and the Mining Act
- Contempt procedure under Section 5(1) of the Judicature Act follows the England and Wales Civil Procedure Rules Part 81, whose requirements in Rule 81.4 are mandatory
- Leave to institute contempt proceedings is no longer required, Rule 81.4 being silent on such leave
- Principles for grant of conservatory orders: prima facie arguable case with likelihood of success, enhancement of constitutional values, petition not rendered nugatory, irreparable harm and public interest
Court orders
#- 1.Pending hearing and determination of the petitions, a temporary conservatory order restraining the respondents, their workers, employees, agents and servants from mining, operating a gold mine or continuing with any form of mining activity, extraction of gold and/or any other mineral ore, their attendant waste on/and from land parcel No Siaya/Ramba/874 and Lamba area
- 2.The petitioners in ELC EP Petition 1 of 2024 give an undertaking in damages for any loss that may become due and payable by them as a consequence of the conservatory order
- 3.The notice of motion dated 16/04/2024 in ELC EP Petition 2 of 2024 is deemed as spent
- 4.The notice of motion dated 19/04/2024 is dismissed
- 5.The grounds of the preliminary objection dated 30/04/2024 challenging this court's jurisdiction are dismissed
- 6.Costs shall be in the cause
- 7.Applications dated 20/05/2024 and 22/05/2024 to be heard orally on 18/09/2024
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Sections 4(1) and 13(1) of the Environment and Land Court Act; Articles 22, 23(3) and 42, 69, 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rarieda Artisinal Miners Savings and Credit Co-operative Society Ltd & 2 others v Amlight Resources Company Limited & 4 others; National Environmental Management Authority & 2 others (Interested Parties) (Environment and Planning Petition 1 of 2024 & Environment & Land Petition 2 of 2024 (Consolidated)) [2024] KEELC 4845 (KLR)", Case Analysis (2024). ELC EP Petition No 1 of 2024 (Consolidated with ELC EP Petition No 2 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4845/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.