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ELCPartially AllowedELC EP Petition No 1 of 2024 (Consolidated with ELC EP Petition No 2 of 2024)· [2024] KEELC 4845 (KLR)

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)

Environment and Land Court
20 June 2024
6,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court in consolidated petitions Nos 1 and 2 of 2024 concerned unlicensed gold mining on land parcel Siaya/Ramba/874, alleged environmental degradation, and contempt of interim conservatory orders. The petitioners, an SACCO and community members, sought declarations and interim conservatory orders restraining the respondents from mining; a second motion sought committal of directors (Yao Youming, Ye Zhanfei and Zhou Hong Bang) for contempt. The contemnors filed a preliminary objection challenging the court's jurisdiction, arguing NECC and NET had exclusive mandate under EMCA and the Mining Act. The court held the PO met the threshold as a pure point of law but rejected the jurisdictional challenge: following the Supreme Court's Nicholus decision, which departed from Kibos, alternative statutory remedies do not bar constitutional relief, and neither NECC nor NET can adjudicate rights violations. The ELC has original and appellate jurisdiction under Article 162(2)(b) and the ELC Act. On the conservatory motion, the court found a prima facie case, that denial would stifle environmental rights and render the petition nugatory, and, given a death from a collapsed mining pit, public interest favoured relief; the motion dated 2/04/2024 was allowed with an undertaking in damages. The contempt motion failed: Rule 81.4 of the England and Wales CPR (applicable via Section 5(1) Judicature Act and Christine Wangari Gachege) requirements on personal service, penal notice and chronological facts were not met, the supporting affidavit was defective, and the photograph breached Section 106B of the Evidence Act. A conservatory order was issued pending hearing of the petitions; the contempt motion was dismissed; costs were in the cause.

Key legal issues

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01

Whether the preliminary objection met the legal threshold

Holding

The PO met the three tests - a pure point of law, facts assumed correct, capable of disposing of the suit - on the jurisdiction limb

Reasoning

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.

p. 8
02

Whether the court has jurisdiction over the petition and contempt motion

Holding

The ELC has jurisdiction; EMCA and the Mining Act do not oust it

Reasoning

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.

p. 10
03

Whether conservatory orders were warranted

Holding

Yes - all principles satisfied, including public interest given a death from a collapsed mining pit

Reasoning

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.

p. 11
04

Whether the contempt motion dated 19/04/2024 was merited

Holding

No - dismissed for non-compliance with mandatory Rule 81.4 requirements

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 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. 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. 3.The notice of motion dated 16/04/2024 in ELC EP Petition 2 of 2024 is deemed as spent
  4. 4.The notice of motion dated 19/04/2024 is dismissed
  5. 5.The grounds of the preliminary objection dated 30/04/2024 challenging this court's jurisdiction are dismissed
  6. 6.Costs shall be in the cause
  7. 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

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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, "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.