Kasigau Ranching (DA) Company Limited v Cabinet Secretary, Ministry of Petroleum & Mining & 3 others; Ngilorit (Interested Party) (Environment & Land Case 159 of 2019) [2024] KEELC 6336 (KLR)
The bottom line
#The court cancelled a mining permit issued without the landowner's consent and awarded Kasigau Ranching Kshs 28 million in damages and restoration costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff consented to the 4th defendant mining on the suit land
No valid consent within the meaning of Section 37(1) of the Mining Act was obtained; the letter of 17th September 2011 was disowned and its veracity not established.
Section 37(1) of the Mining Act prohibits granting prospecting and mining rights on private land without the express consent of the registered owner. The plaintiff's chairman (PW2) disowned the 2011 consent letter as not referring to specific acreage, area or duration, and the 4th defendant never applied to the plaintiff for consent. The 4th defendant, having not complied with Order 11 and having failed to avail the letter's author, failed to establish the letter's veracity. Consent was therefore never obtained.
Whether mining permit MP/2018/0113 was lawfully and procedurally issued
The permit was illegally issued: the renewal application did not follow Form MP3 requirements, the underlying transfer to the 4th defendant was invalid, and no landowner consent or notification under Section 34 existed.
The renewal application of 31st December 2017 omitted the mandatory attachments prescribed in Form MP3 under Regulation 69 of the Mining (Licence and Permit) Regulations 2017, including proof of fee payment, reports on mining operations and environmental remediation. Further, the chain of title was broken because David Muthui Kariuki never lawfully transferred the location from Naishorua Mining Co. Ltd to himself before purporting to transfer it to the 4th defendant, and no written approval of the 2nd defendant existed. The Cabinet Secretary also failed to suspend, revoke or cancel the permit despite the plaintiff's objections.
Whether the 4th defendant was a trespasser and what damages flow
The 4th defendant is a trespasser; trespass being actionable per se, general damages, exemplary damages and restoration costs were awarded.
The plaintiff holds an unchallenged certificate of lease over LR No. 12180, conferring indefeasible ownership and rights of possession and use under Sections 24 and 25 of the Land Registration Act. The 4th defendant's mining without consent constituted trespass under Section 3(1) of the Trespass Act. Exemplary damages were justified because the defendant's conduct was calculated to make profit exceeding compensation, and restoration costs of Kshs 13,000,000/= followed the polluter pays principle under Section 15(a)(v) of the ELC Act and Article 42 of the Constitution.
Legal principles established
#- Mining rights over private land require the express consent of the registered owner under Section 37(1) of the Mining Act; absent such consent, the permit is illegally issued.
- A transfer of mining locations not approved by the regulatory authority is invalid and confers no transferable interest.
- A registered proprietor's certificate of lease is prima facie and indefeasible evidence of ownership under the Land Registration Act.
- Trespass to land is actionable per se and no proof of specific loss is required for an award of general damages.
- The polluter pays principle obliges a party who degrades land without consent to bear the costs of rehabilitation and restoration.
Court orders
#- 1.A declaration that the mining permit registration number MP/2018/0113 was illegally issued to the 4th defendant.
- 2.An order of cancellation of mining permit registration number MP/2018/0113 dated 7th November 2018.
- 3.A declaration that the 4th defendant is a trespasser on Land Parcel LR No. 12180 and Mining Location Reference No. 149/1-10 Machungwa 'A' Kasigau Ranch; the 4th defendant to vacate and give vacant possession within ninety (90) days and in default eviction orders to issue.
- 4.General damages of Kshs 5,000,000/= against the Defendants jointly and/or severally.
- 5.Exemplary damages of Kshs 10,000,000/= against the Defendants jointly and/or severally.
- 6.Restoration and conservation damages of Kshs 13,000,000/= against the 4th defendant for rehabilitation, restoration and decommissioning of mining location No. 149/1-10, under the supervision of the National Environment Management Authority.
- 7.Costs of the suit awarded to the plaintiff against the defendants, jointly or severally.
- Jurisdiction invoked
- Environment and Land Court Act, Section 15 (original jurisdiction over land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasigau Ranching (DA) Company Limited v Cabinet Secretary, Ministry of Petroleum & Mining & 3 others; Ngilorit (Interested Party) (Environment & Land Case 159 of 2019) [2024] KEELC 6336 (KLR)", Case Analysis (2024). Not stated in judgment (plaint dated 29th August 2019, filed 4th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6336/eng@2024-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.