Mining R US Ltd v Cabinet Secretary, Ministry of Mining, Blue Economy and Maritime Affairs & another

acting under their authority, from harassing, intimidating, threatening, obstructing, evicting, arresting, removing, or otherwise adversely dealing with the petitioner’s agents, personnel, operations, property, or activities in Turkwel Area West Pokot County under Cadastral Area Numbers PL/2025/0599 and PL/2025/6761. 4. That pending the hearing and determination of the petition, a conservatory order do issue restraining the respondents from processing, allocating, granting, transferring, assigning, licensing, or conferring any rights over the subject cadastral area to any third party other than the petitioner and from interfering in any manner whatsoever with the petitioner’s proprietary and business interests or mining activities therein. 5. That pending the hearing and determination of the petition, a mandatory order do issue compelling the 1st respondent forthwith to restore and reinstate the petitioner’s prole, application records, cadastral visibility and date in respect of Application Numbers PL/2025/0599 and PL/2025/6761, and to provide functional portal access to the petitioner for compliance, monitoring, and further documents uploads. 6. That the Ocer Commanding Station (OCS), Marich Police Station, be directed to supervise and enforce compliance with the orders of this court and ensure maintenance of peace. 7. That this honorable court be pleased to issue such further or other conservatory, preservatory, interim or consequential orders as it may deem just and expedient for the ends of justice and protection of constitutional rights. 8. That the costs of this application be provided for. 3. The petitioner is described as a duly incorporated limited liability company as per the attached copy of CR 12 and a certicate of incorporation marked AAJ-(1) and (2) respectively, whose board resolution authorising the deponent to plead, swear, and sue in this petition has not been attached, as required by law. 4. The petitioner’s director deposes that on 4/4/2025, it lawfully lodged or applied for prospecting or mining rights over the Turkwel Area, West Pokot County through the ocial Mining Cadastral System under the Mining Act and the applicable Regulations, by uploading the initial supporting documents, and paid the prescribed fees of Kshs. 500,000/= required by law. 5. It is deposed that the 1st respondent acknowledged and assigned the said documents an Application No. PL/2025/0599 and PL/2025/6761, attached to the adavit as annexures marked AAJ-3(a) and (b). 6. The petitioner’s director deposes that by reason of the said application, it acquired a lawful and subsisting commercial, benecial, and proprietary interest in the subject mining area and commercial mining activities at Turkwel Area, West Pokot County. 7. The petitioner’s director deposes that it then commenced its operations openly, peacefully, and in reliance upon the approvals, acknowledgements, and directions issued by the 1st respondents and has at all times acted in good faith and in compliance with the applicable legal framework. 8. The petitioner’s director deposes that while attempting to upload further documents as directed by the 1st respondent, it discovered that tis company prole, visibility, data, records, and or entries in relation to the aforesaid application, were fraudulently and secretly removed, altered, disabled, displaced, suppressed, and or interfered with on the Mining Cadastral System which is managed exclusively by https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 2

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the 1st respondent, hence denying it full access to its application records and the subject area within the mining cadastral system, thereby frustrating and jeopardizing its legal rights. 9. The petitioner’s director deposes that, further, it discovered that the cadastral area connected with Application No. PL/2025/6761 had been interfered with and reected under other purported references, namely PL/2026/0647, ML/2026/0415, Application No. 7887, MP/2026/1158, and MP/2026/1159, as per copies of screenshots attached as AAJ-(4), in favour of third parties. 10. The petitioner’s director deposes that such an occurrence demonstrates unlawful interference, irregular manipulation, or fraudulent alteration of the petitioner’s mining records and cadastral interest, which was done without notice, fair hearing, or lawful justication. 11. Further, the petitioner’s director deposes that upon learning of the said fraudulent activities, the petitioner promptly reported or initiated steps to report the same to the relevant authorities and sought clarication from the oces of the 1st respondent, but got no satisfactory explanation or notication of any rejection, suspension, cancellation, revocation, or adverse decision aecting the said application. 12. The petitioner’s director deposes that at all material times, it had a legitimate expectation that its application would be processed fairly and transparently, in accordance with the Constitution, the Mining Act, the Fair Administrative Action Act, and the rules of natural justice. 13. The petitioner’s deponent therefore terms the acts of the respondents as arbitrary, unlawful, and procedurally unfair administrative conduct violating Article 47 of the Constitution. 14. The petitioner’s director deposes that the removal, suppression, displacement, and threatened transfer of its duly acknowledged mining interests amount to threatened and arbitrary deprivation of property or interests contrary to Article 40 of the Constitution, which have exposed it to imminent risk of losing the benet of its application and the subject mining area to third parties through unlawful allocation or licensing. 15. The petitioner’s director avers in the petition that it has invested substantial funds, time, manpower, contractual commitment, logistical resources, and operational capital in pursuit of the said mining rights after conducting public participation in the subject area. 16. The petitioner’s director deposes that it has also entered into or undertaken stakeholders' engagements, community consultations, site mobilisation, logistical arrangements, and commenced mining activities with the aim of lawful commercial exploration and prot as per the annexed complaint letter dated 18/3/2026 marked AAJ-(5). 17. Further, the petitioner’s director deposes that its investments and ongoing operations stand to be rendered futile unless the subject matter is preserved through conservatory orders; otherwise, the 1st respondent will proceed to illegally process, allocate, transfer, grant a license, alienate, or otherwise deal with the subject mining rights in favour of purported third parties to the applicant’s grave prejudice. 18. The petitioner’s director deposes that the imminent loss or damage will arise notwithstanding that the petitioner has overriding prior interests that are under imminent danger of being extinguished or defeated should the purported third parties be issued with such rights. 19. Despite directions that the petition and the application be served upon the respondents, only the 1st respondent has opposed the petition. In the adavit in reply sworn by Mr. Mutwiwa, the Secretary of Mining, the petition is termed misconceived, misleading, premature, legally untenable, and intended to misrepresent the statutory mineral rights administration framework established under the Mining Act, 2016. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 3

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20. The 1st respondent states that under the provisions of the Mining Act, 2016, the State Department for Mining is mandated to regulate and administer mineral rights in a transparent, accountable, and orderly manner in the public interest through the Online Mining Cadastre (OMC) system. 21. The 1st respondent deposes that the Online Mining Cadastre system is an electronic mineral rights administration platform used to submit, process, and manage mineral rights applications and does not in itself confer proprietary rights or automatic entitlement to mineral rights upon an applicant. 22. It is deposed that the issuance of an application number upon submission through the Online Mining Cadastre merely signies receipt of an application for evaluation and processing and does not amount to the grant, allocation, or conferment of mineral rights under the Mining Act, 2016. 23. The 1st respondent deposes that under the Mining Act, 2016, the Mining (Licence and Permit) Regulations, 2017, an applicant for a Prospecting Licence is required to submit mandatory statutory documentation, including: a. Proof of payment of prescribed fees, b. Certicate of incorporation and CR 12, c. Valid Tax Compliance Certicate, d. Coordinates and maps of the proposed area, e. Programme for prospecting operations, including the budget and minimum expenditure commitment, f. Environmental Rehabilitation and Restoration Plan, including budget, g. Proof of technical and nancial capability, h. Duly lled landowners’ consent(s), and i. Proposals for employment, training, and procurement of local goods and services. 24. It is deposed by the 1st respondent that pursuant to Section 37 of the Mining Act, 2016, mineral rights applicants are required to obtain consent from the lawful owner or lawful occupier of private land before undertaking prospecting or mining operations over such land. 25. The 1st respondent deposes that the requirement for duly lled landowner’s consent(s), accompanied by GPS Coordinates and proof of land ownership, is therefore a mandatory statutory requirement intended to ensure compliance with the Mining Act, 2016, and protection of private and community land rights. 26. The 1st respondent deposes that all prospecting license applicants are processed through a structured statutory workow within the Online Mining Cadastre before any mineral right can be granted, deferred, rejected, or removed. 27. It is deposed that the process commences with the applicant identifying an area of mineral interest within the Online Mining Cadastre and independently and electronically lodging an application, whereafter an application reference number is issued, whose purpose is purely to track and process, and not as proof of grant or conferral of mineral rights. 28. The 1st respondent deposes that, thereafter, licensing ocers undertake a preliminary completeness check and review the application against the statutory requirements, using the applicable technical guidelines. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 4

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29. The 1st respondent deposes that the Online Mining Cadastre automatically transmits the said notices and notications to the applicant’s email address and portal account and later gives the applicant a system-generated upload link through which he may upload and submit the mining documentation within the prescribed timelines. 30. The 1st respondent deposes that where an applicant complies with the notice and successfully uploads the required documents within the prescribed timelines, the application proceeds for further technical review and evaluation, which, once prepared internally, is transmitted to the State Department for Mining Technical Committee (SDM-TC) for technical evaluation, which it conducts against the requirements prescribed by the Act and its Regulations. 31. The 1st respondent deposes that following completion by SDM-TC, it transmits its observations and recommendations to the Mineral Rights Board (MRB) for consideration and advises the Cabinet Secretary. It is deposed that the Mineral Rights Board may grant, defer, reject, or otherwise deal with the application as per the Act. 32. The 1st respondent deposes that where the applicant fails to comply with any notice or lapse of compliance if notice issued to him by the Mineral Rights Board to regularize deciencies or out of an incomplete application, the SDM-TC and the MRB may proceed to remove the application from the Online Mining Cadastre, which leaves the subject application area in an open status and available under the Online Mining Cadastre for application by other interested applicant under the Act. 33. The 1st respondent deposes that where an applicant fully complies with all statutory requirements, the application is processed for approval by the Cabinet Secretary. The 1st respondent deposes that even after approval by the Cabinet Secretary, a prospecting license only crystallises upon completion of the statutory process, including gazettement, issuance of an oer letter, and payment of the requisite fees (License fees), issuance of the license, stamping, and registration within the Online Mining Cadastre system. 34. The 1st respondent deposes that the petitioner herein submitted two prospecting license applications, namely PL/2025/0599 Appl. No. 6191 with the following particulars: a. Application dated 12/4/2025, paid fees, Mineral Interest-Group C - Precious Metal Group (Gold), Applied Area 229.9563 km2 (1070) Cadastral Blocks, Map Reference: Turkana County and West Pokot, and requested duration - 3 years. (b) Mining Appl. PL.2025/0621 - Appl. No. 6761, on application dated 4/4/2025, fee paid on 4/4/2025, Mineral of Interest Group C - Precious Metal Group (Gold), applied area 199.11.49 km2 (926 Cadastral Blocks). Map Reference: Turkana County and West Pokot for the requested duration of 3 years. 35. The 1st respondent deposes that the two applications were subjected to technical evaluation during the 66th meeting of the SDM-TC on 1/8/2025, where the committee observed that the applications were part of a large batch of related applications by six entities sharing common shareholders, directors, and similar supporting documentation, who had lodged 15 mineral right applications as per the Online Mining Cadastre, comprising of 13 prospecting licenses and two mining licenses application as per attached annexures marked TMI-(a)-(g), yet under the Act a person shall not hold more than ten prospecting licenses concurrently. 36. The 1st respondent deposes that the scale, pattern, and multiplicity of the applications submitted across related entities raised legitimate regulatory concerns regarding speculative acquisition and hoarding https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 5

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of mineral rights without demonstration of technical and nancial capability commensurate with the acreage applied. 37. The 1st respondent deposes that similarly, Application No. PL/2025/0621/Appl. No. 6761 had not met the minimum statutory requirements for the grant of a prospecting license as per Section 72 of the Mining Act, for lack of a valid VAT certicate, a prospecting operation programme, duly lled landowners’ consent(s), GPS coordinates of the concerned area, and proof of nancial capability commensurate with the several applications by the related entities. 38. The 1st respondent deposes that Appl. No. PL.2025/0599/Appl. No 6791 had no Environmental Rehabilitation and Restoration Plan with a budget, a prospecting operation plan, duly completed landowners’ consent forms with GPS coordinates, or proof of nancial capacity. 39. The 1st respondent deposes that the applications were forwarded to the 98th meeting of the Mineral Rights Board on 21/8/2025, together with the SDM-TC report and recommendation. 40. It is deposed that the said board made recommendations to the Cabinet Secretary to reject the applications for their referenced deciencies as per a copy annexed as TM-(2), an advisory for rejection dated 22/8/2025. 41. The 1st respondent deposes that a 7-day notice was issued to the petitioner through the Online Mining Cadastre, requiring it to lodge, upload, and submit the missing documents as per the notice dated 25/9/2025, through registered email annexed as TM-(3), warning the applicant that non-compliance may lead to removal from the Online Mining Cadastre system, according to 7 days opportunity or neglected to upload the requested documentation, and upon it expiry the upload link issued to the petitioner through the Online Mining Cadastre system automatically lapsed and the application remain incomplete. 42. The 1st respondent deposes that thereafter, the petitioner’s applications were reviewed in the 99th Mineral Rights Board meeting, which, on 11/11/2025, considered that the applications remained incomplete. Despite the issuance of 7 days’ notice, it recommended the removal of incomplete applications from the Online Mining Cadastre system, as per the established mineral rights administration procedures. 43. It is deposed that the eect of the foregoing was that the respondents were free to subject the areas within the cadaster system for lawful administration and consideration of applications by other applicants in accordance with the Act, to other eligible persons or entities, based on a rst-come, rstserved principle applicable in the process of the mineral rights administration framework. 44. The 1st respondent deposes that subsequently E.A. Northwest Mining Co. Ltd, Gevoid Solutions Limited, and Sustaina Mining Limited independently lodged respective applications within the Online Mining Cadastre system, long after the petitioner’s application had already undergone statutory evaluations and had been rejected and removed from the Online Mining Cadastre system, over the identied areas. 45. The 1st respondent deposes that its department does not allocate, assign, or handpick mineral areas for applicants within the cadastre system, and that it is only the applicant who independently identies areas of mineral interest through the Online Mining Cadastre portal, ascertains whether such areas are free and available, and thereafter electronically lodges applications for consideration. 46. The 1st respondent deposes that the Ministry’s role is regulatory and administrative in nature. 47. Further, it is deposed that the Ministry’s roles include receiving applications, maintaining cadaster records, verifying area availability, conducting evaluations, and processing applications as per the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 6

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48. The 1st respondent deposes that the petitioner had also lodged another related application through a company known as Gold Coins Mining Ltd, PL/2025/0638, which, unlike the previous ones, in which it responded to a similar notice issued and uploaded the requested documentation and was successfully recommended for approval upon compliance, as per Gazette Notice dated 29/5/2026 marked as TM(5). 49. It is deposed that the aforesaid successful application clearly shows that notices issued in the Online Mining Cadastre system are functional and properly transmit notices, and therefore the applicant had access to the Online Mining Cadastre, its email as registered communication was operational and eective, and that those applicants who met the law were accorded further processing. 50. The 1st respondent deposes that the petitioner was selective in compliance and neglected to regularise documentation. 51. The 1st respondent maintains that the petitioner lacks proprietary or exclusive rights over public land and cannot claim such rights merely on account of lodging incomplete applications through the Online Mining Cadastre system. 52. The 1st respondent deposes that the Ministry acted in line with the law and its regulations; hence, none of the petitioner’s alleged constitutional rights were violated. 53. Further, the 1st respondent deposes that to grant the reliefs sought would undermine the statutory mineral rights administration framework and prejudice the orderly management of mineral resources by compelling the Ministry to process incomplete applications contrary to the law, especially when the petitioners have approached the court with non-material disclosure of facts. 54. The petitioner relies on oral as well as written submissions, isolating three issues for the court’s determination. On a prima facie case, it is submitted that this court, under Article 23(3)(C) of the Constitution, has the power to grant conservatory orders in proceedings seeking to enforce the Bill of Rights. 55. The petitioner submits that the conceptual origin of conservatory orders was discussed in Attorney General -vs--Sumair Bansraj [1985] WIR 286, as an order to maintain status quo maintenance to hold the scales of justice evenly, as in a dispute between man and state. Reliance is also placed on Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & Others SC Civil Appl. No. 5 of 2014 [2014] eKLR and on the distinction between conservatory orders and ordinary injunctions. 56. On the principles of conservatory orders, the petitioner relies on Martin Nyaga Wambora -vs- Speaker of the County Assembly of Embu & Others [2014] eKLR, Nkunja -vs- Magistrates and Judges Vetting Board & Another [2016] eKLR and BOM Uhuru Secondary School -vs- City County Director of Education & Others [2015]. 57. The petitioner submits that in exercising such discretion, the court has to consider whether the grievance raised is genuine, legitimate, and serious as opposed to vague, or reckless, as held in Suleiman -vs- Amboseli Resort Ltd [2004] 2KLR 589 and Centre for Human Rights and Democracy & Others -vs- Magistrates and Judges Vetting Board & Another Constitutional Petition No. 11 of 2012. 58. The petitioner submits that it has established a prima facie or an arguable case, as it has fully complied with the statutory application procedure set out in Section 136 of the Mining Act by submitting all the particulars required and paying the prescribed fees which the 1st respondent under Section 137 of the Act, acknowledged receipt, giving rise to a lawful, subsisting and protectable proprietary and commercial interest within the meaning of Article 40 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 7

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59. The petitioner submits that despite compliance, its record was removed, altered, and displaced from the Mining Cadastre System. 60. It is submitted that the Cadastral area concerned with the application number PL/2025/6761 was reected under ve other purported reference numbers, all without notice of rejection under Section 137(2) of the Act, all this being done without a hearing or written reasons under Article 47(2) of the Constitution. 61. The petitioner submits that the unexplained administrative conduct discloses, on the face of it, a breach of the petitioner's right to fair administrative action under Article 47 of the Constitution and a threatened arbitrary deprivation of property under Article 40 of the Constitution. 62. The petitioner submits that the conduct complained of also discloses a violation of the doctrine of legitimate expectation, which arises where a public body, through its conduct, representation, or established practice, induces a reasonable expectation that a benet will be conferred or retained. 63. The petitioner submits that by accepting its fees, issuing application numbers, and directing further compliance steps, the 1st respondent induced a legitimate expectation that the applications would be processed lawfully and that no adverse action would be taken without due process, an expectation rooted in the constitutional principle of the rule of law and the predictability of government dealings with the public. 64. Reliance is placed on the Republic -vs- Cabinet Secretary of Agriculture, Livestock, Fisheries & Cooperative & Another; State Corporations Advisory Committee (SCAC) & Another Ex Parte Stephen Ndichu Kinuthia [2021] eKLR. 65. The petitioner submits that the danger or prejudice, as held in Wambora (supra), must be real and imminent rather than speculative. The petitioner submits that screenshots attached to the supporting adavit show the rejection of the cadastral area connected with and reected under ve separate alternate reference numbers on the Mining Cadastral System, which demonstrates evidence of an active and ongoing administrative process capable of culminating in allocation to a third party at any time. 66. On nugatory aspect, the petitioner submits that should the 1st respondent be permitted in the interim to nalise the processing or allocation of the cadastral area under any of the ve alternate reference numbers, right could vest in third party who is not before the court and unwinding such an allocation, after that fact, when perhaps the third party will have commenced operations or incurred expenditure, the court will be presented with a fait accompli, rendering any eventual judgment in the petition hollow and unenforceable victory, yet it seeks orders inter alia; of certiorari and mandamus. 67. The petitioner submits that the substratum of the petition is the petitioner’s priority interest in a specic, dened, and non-substantial cadastral area, which, if allocated elsewhere, will destroy the substratum and render the petition an academic exercise incapable of yielding any eective relief. 68. The petitioner submits that the risk faced by it is reinforced by its substantial investments in reliance on the acknowledged applications of nancial, contractual, logistical, and operational resources, together with stakeholder and community engagement already undertaken in the Turkwel Area. 69. On public interest, the petitioner submits that Article 10 of the Constitution binds the respondents as State Organs to regard national values and principles in which the unexplained alteration of records on a public mining cadaster system, and the apparent re-routing of an acknowledgement application under multiple other reference numbers without disclosure, strikes at the heart of those national values https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 8

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and principles, which undermines public condence in the administration of the country’s mineral resources, which the respondents instead have acted to the contrary. 70. The petitioner submits that such acts as those by the respondents expose investors, stakeholders, and the community to arbitrary and unaccountable administrative conduct. 71. The petitioner submits that the annexure AAJ-(5) to the supporting adavit shows a letter dated 18/3/2026 and highlights the Turkwel Area communities' position, the risk of conict in case of allocation to other parties, as highlighted by the area Member of Parliament, and the public participation already conducted by the petitioners. 72. The petitioner submits that issuance of conservatory orders will not in any way prejudice the respondents, who remain at liberty upon nal determination of the petition to process the subject application lawfully, transparently, and in line with the Constitution and the Mining Act. 73. The petitioner submits that public interest is accordingly best served by preserving the subject matter until the rights and obligations of the parties are conclusively determined. 74. In the supplementary submissions following leave of the court to address the issues raised in the 1st respondent’s replying adavit, the petitioner emphasises that the respondents have now admitted that there were applications submitted to them, which have currently been removed from the online portal. 75. The petitioner submits that at this stage, the court should not nally resolve conicts of fact disclosed on adavit, which is a preserve of the trial court, where the deponents of the adavits and makers of the documents can be cross-examined. 76. The petitioner submits that the 1st respondent’s adavit does not extinguish its case but instead contradicts it, making the same a trial issue and not a basis for dismissing the application. The petitioner submits that the alleged statutory notice is a contested fact as it was never served upon the petitioner, as alleged in paragraph 47 of the replying adavit. 77. The petitioner submits that the email used to send the notice, as alleged in paragraphs 33 and 34 of the replying adavit, is associated with a dierent company and not the petitioner company. The petitioner submits that a statutory notice transmitted to a third-party email discloses a live and material factual dispute going to the heart of Article 47 of the Constitution. 78. The petitioner submits that no reasoned rejection under Section 137(2) of the Mining Act was made and that TM-(3) is not a decision rejecting the application accompanied by written reasons in line with Article 47(2) of the Constitution and Section 137(2) of the Mining Act. 79. The petitioner submits that, though the 1st respondent, in paragraph 78 of the adavit, conrms that no approval, oer letter, gazettement, licences, stamping, or registration has ever been issued, there is no demonstration that a nal, reasoned, and communicated rejection has ever been issued either. 80. The petitioner submits that the status of the application before its removal from the online portal remains as pleaded in the petition, as its administrative termination was without a hearing and written reasons. 81. The petitioner submits that the issue of related entities to it is a merits issue and not a knock-out answer to the petition, and so is the alleged engagement by the petitioner in speculative multiplicity of applications for mining licences. The petitioner submits that even if true, common shareholding does not, without more, extinguish the petitioner’s own distinct corporate personality or its own statutory right to a lawful and reasoned determination of its own application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 9

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82. The petitioner submits that the explanation for the ve alternative reference numbers is itself the dispute and not its resolution, and cannot therefore be a narrative of a lawful removal followed by rst-come, rst-served, which calls for interrogating the underlying Board Minutes and timelines relied upon. 83. The petitioner submits that DOM ASM and the third-party applicants raise further disputed facts, including the timing of the alleged 31/10/2025 designation relative to the petitioner’s own 4/4/2025 application and the circumstances under which the ve companies came to apply over the same area, which matters shall be best determined at the hearing. 84. The petitioner insists that it has met the threefold test to demonstrate that its claim under Articles 40 and 47 of the Constitution remains live, contested, and not defeated. The petitioner submits that if the conservatory orders are not conrmed pending trial, the respondents shall, as conrmed in the adavit, focus on competing third-party interests. 85. The petitioner submits that any further processing or allocation in the interim would render the petitioner’s prayers for certiorari and mandamus academic before the disputed facts are ever tested. 86. The petitioner submits that public interest is best served by preserving the status quo so that the serious and mutually contradictory allegations now before the court, concerning notice, process, integrity, and the multiplicity of related applicants, are resolved through the trial process rather than a one-sided adavit led and answered within the same court sitting. 87. The issue calling for my determination is whether, based on the petition and the response by the 1st respondent, the court should issue conservatory orders in the manner framed by the petitioner. The jurisdiction to grant conservatory orders falls under Article 23 of the Constitution and Rule 22 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules). 88. The jurisdiction, principles, and threshold to grant conservatory orders were discussed and set out in Gatirau Peter Munya -vs- Dickson Mwenda Kithinji (supra). The court said that a conservatory order is a constitutional relief specically provided under Article 23 of the Constitution, grantable as a matter of judicial discretion. 89. The court held that conservatory orders have a more decided-public law connotation for they are orders that facilitate ordered functionary within public agencies, as it is meant to secure the enforcement of the provision of the Constitution and to uphold the adjudicatory authority of the court, so that the authority conferred on the court is not exercised in vain, hence, the need to keep the subject matter in dispute in situ. 90. In Dock Workers Union & another -vs- Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated)) [2024] KESC 66 (KLR) (8 November 2024) (Ruling), the court held that the nature and the principle to be considered before the court could grant a conservatory or temporary injunction includes an arguable appeal case which is not frivolous, if the orders are granted, the case or appeal will be rendered nugatory, and that it is in the public interest that the conservatory orders be granted. 91. An arguable point or case was described as one that need not succeed but one that ought to be argued fully at the hearing. On the nugatory aspect, the court cited Stanley Kangethe Kinyanjui -vs- Tony Keter & 5 Others [2013] eKLR, which means that what is sought to be preserved, if allowed to happen, is reversible, and if it is not reversible, whether damages will reasonably compensate an aggrieved party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 10

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92. The court, on the third ground, said that in considering an application for conservatory orders, it cannot ignore the impact of such orders beyond the parties to the case, should the order be granted or denied. The court held that it had an obligation to make a general inquiry into where the public interest lay, considering the parties' respective rights, since conservatory orders have a public law connotation. 93. From the foregoing jurisprudence, what is clear is that the an applicant for conservatory orders must tender evidence showing a prima facie case, that unless such orders are issued acts likely to destroy the subject matter of the proceedings and or foist upon the court to a situation of complete helplessness or render nugatory any judgment or order of the court will denitely arise as held as held by the Nigerian Court of Appeal in United Cement Co. of Nigeria -vs- Dangote Industries Ltd & Another CA/A/165/2005. 94. The burden, therefore, is on the petitioner herein, as held in Fose -vs- Minister for Safety of Security [1977] 2 ACC 6, to demonstrate that the prayers of temporary injunction as framed are required to protect and enforce the constitution, its goals, principles and values, are in public interest and would protect and enforce the petitioner’s rights and freedoms in the Bill of Rights. See David Ndii & Others -vs- Attorney General & Others Petition No. 628 of 2020 Consolidated with Petition Nos. 397, E400, E401, E402, E416 and E426 of 2020 and 2 of 2021. 95. In BOM Uhuru Secondary School -vs- City County Director of Education & Others [2015] eKLR, the court pronounced on the threshold that an applicant must demonstrate an arguable prima facie case with a likelihood of success at the hearing and that, in the absence of conservatory orders, he is likely to suer prejudice. 96. The court also said that in granting or not granting, the said orders, it must decide whether or not it will be enhancing the constitutional values and objects of the specic rights or freedoms in the Bill of Rights and whether if the conservatory orders are not granted the petition or its substratum will be rendered nugatory, and lastly, public interest and the relevant material facts must be considered in exercising the discretion or whether to grant or deny the conservatory orders. 97. The petitioner has urged the court at this stage not to delve into the merits of the petition, more so when there is no replying adavit opposing the application for conservatory orders, and that, from the response to the petition, admission has been made that its applications indeed were removed from the online portal. The fact that the application for conservatory orders is unopposed does not absolve the petitioner from meeting the threshold set by law. Similarly, it does not stop the court from looking at the reply on record regarding the petition. 98. I agree with the petitioner, that as held in Law Society of Kenya -vs- Attorney General & Another; Judicial Service Commission (Interested Party) [2020] KEHC 10496 (KLR), a court should not delve into detailed analyses of facts or law on the merits of the petition, but has to consider whether the petitioner has established a prima facie case to warrant interim orders of protection, to secure the substratum of the petition, to avoid rendering the petition nugatory or to become a mere academic exercise. 99. The petitioner has also submitted that it has met the public interest component to be entitled to conservatory orders. Public interest is dened in Black’s Law Dictionary, 9th Edition, as the general welfare of the public that warrants the recognition and protection of, or something in which the public as a whole has a stake. 100. Turning to the elements, a prima facie case is more than an arguable case; it has to have the potential of arguability, as well as the likelihood of success at the hearing. It must be beyond a speculative basis as held in Muslims for Human Rights (MUHURI) & 2 others -vs- Attorney General & 2 others https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 11

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[2011] KEHC 4291 (KLR) and in Centre for Rights Education and Awareness (CREAW) & 7 others -vs- Attorney General [2011] KEHC 4297 (KLR). See also Patrick Musumba -vs- National Land Commission & Others [2015] eKLR, Satrose Ayuma & Others -vs- Registered Trustees of the Kenya Railways Sta Retirement Benet Scheme & Others, Petition No. 65 of 2010, and Martin Nyaga Wambora -vs- Speaker of the County Assembly of Embu & Others [2014] eKLR. 101. In assessing whether a prima facie case is established, the court must look at all the relevant material facts and avoid immaterial matters set out in the petition. The court must also look at the credentials of the applicant, the prima facie correctness of the information provided, whether the grievances are genuine, legitimate, deserving, and nally whether the grievances and allegations are grave and serious or merely vague and reckless as held in Centre of Human rights and Democracy & Others -vs- Judges and Magistrates Vetting Board & Others HCCP No. 11 of 2011 as well as in Suleiman -vs- Amboseli Resort Ltd [2004] 2 [KLR] 589. 102. Applying the foregoing case law to the instant application, the petitioner alleges that it lodged its application on the Kenya Mining Cadastre Portal, which the respondents tampered with. Though the petition has generally pleaded that it had met the procedures and conditions governing application for mining rights or permits, the rst respondent in the replying adavit to the petition has set out the statutory and regulatory process of mineral registration in Kenya. 103. It follows that Kenya has a self-registration online process where an applicant creates a form and registers online to create an account if he or she does not hold mineral rights by digitally uploading proof of identity, and if applying for a company authorisation letter signed by a director or representative of the company The goal of the portal is to provide an electronic platform for all stakeholders in the mining sector in Kenya to engage directly with the Ministry of Mining. 104. Before using the cadastre portal, an applicant has to register for access. Thereafter, a person without a license or permit for mineral rights must use the self-registration online form to submit their particulars and supporting documents. 105. Payments and payment logs are also reected in the portal and are done or submitted online. Contact details, support, and portal queries, including a telephone number, email, fax, and website, are provided on the portal. 106. According to the 1st respondent, the Mining Act 2016 and its attendant Regulations have introduced a modern, sector-responsive, legal, regulatory, and institutional framework, seeking to provide transparent, accountable stakeholder engagement, environmental and social sustainability, and equitable benet-sharing of mineral resources or proceeds. 107. From the court’s reading of the Act, mining rights include a prospecting license, retention license, mining license, prospecting permit, mining permit, and an artisan permit. A mining area means an area covered by a mining license. Restrictions on the acquisition of mineral rights are applicable unless one has been granted a permit or license. 108. To actualise the Act the following subsidiary legislations have been put in place namely Legal Notices No. 87 and 88/2017, 153/2016, 106/2024, 3/2026, 148/2017, 83 and 82/2017, 81/2017,150/2017, 149/2017, 149/2017, 85/2017, 84/2017,80/2017, 42/2024,1 51/2017, and 152/2017. All these Regulations, in my view, have expanded the licensing regime to cater for the issuance of large-scale, small-scale, and artisanal mineral rights. 109. A party seeking the aforesaid permits or licences must play by the laws, its rules, and regulations. Sections 10 and 11 of the Mining Act require that it demonstrate technical capacity, expertise, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 12

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experience, and nancial capacity. The general powers of the Cabinet Secretary are spelt out in Sections 12-15 of the Act. 110. Compliance with the conditions relating to mineral rights and requirements of the Act falls within the Director of Mines under Section 20 of the Act. 111. The role of the Mineral Rights Board is set out in Section 31 of the Act. It includes the grant, rejection, retention, renewal, suspension, revocation, variation, assignment, trading, tendering, or transfer of a mineral rights agreement. 112. Mineral rights applications are covered by Section 34 of the Act. It is only after receipt of the application that the Cabinet Secretary can publish a notice of the pending application in a newspaper at the applicant’s expense. 113. Objections to the application are heard and determined by the Cabinet Secretary through the Mineral Rights Board. 114. Consent of the registered owner, in private land and community land, is a condition precedent to the issuance of a license or permit. 115. Sections 56 and 57 of the Act relate to the priority of application and the treatment of applications. 116. Sections 72 and 10 of the Act relate to applications for prospecting licences and mining licences to the Cabinet Secretary. Sections 105 and 130 of the Act grant the Cabinet Secretary powers to issue a notice of refusal of a mining license. Section 136 relates to an application for a mining permit. 117. The 1st respondent has conceded that there was indeed an unsuccessful or incomplete application, which the petition was notied to regularise in vain, leading to the removal of the same from the online portal, a process termed as lawful, regular, and sanctioned by law for those who, despite notice, fail to comply. 118. The 1st respondent in the replying adavit, as well as the petitioner, seems to agree that the registration process is self-initiated and online. From the replying adavit and the online portal itself, which the court has looked at, the ow chart of the process includes submission of the application, rst review by the ministry, approval by the ministry, pre-approval by the Secretary of Mines, premises inspection, and granting of a license or permit as regards a dealer's license. 119. The 1st respondent has deposed that for a mining license, after approval by the cabinet secretary, the mineral review board advises the secretary, evaluates the same issues as a gazette notice, receives comments and objections, listens to the objections, and eventually issues the license. 120. From my reading and interpretation of the law and the regulations, which the 1st respondent and the petitioner rely upon, it is only after an application is lodged in full compliance with the requirements, and its eventual processing and approval or otherwise, that an unsuccessful applicant can either be heard to say that it has not been accorded a fair hearing, or fair administrative action. 121. Article 159 of the Constitution, as read together with Section 9 of the Fair Administrative Action, relates to an aggrieved party resorting to alternative dispute resolution as the rst port of call before rushing to a constitutional court. The Mining Act and its regulations have built dispute resolution mechanisms. 122. The 1st respondent alleges that it communicated to the petitioner about the incompleteness of its applications in vain. There is no evidence that the applicant, after the 7-day notice, met the requirements for application for either a prospecting, mining, or dealing license or permit under the Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 13

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123. Statutory and procedural compliance is a condition precedent to an applicant alleging a breach of statutory, let alone constitutional, rights. The petitioner submits that it did not receive such notices, yet the email used appears to belong to the petitioner’s director. 124. The name “Abdi” as the director appears as a common denominator in the certicates of registration of all the multiple companies said to have applied for the permits or licences. Enquiries, if any, over the progress of the applications that may have been made, or follow-ups with the respondents, are equally missing. 125. The court, other than the application, is asked to issue conservatory orders to forestall interference with the cadastral area, for the petition will suer grave loss or damage if the said rights are allocated to third parties by the respondents. 126. The documents attached to the supporting adavit do not refer, specify or relate to any approval to conduct mining activities in relation to a dened parcel of land, with dened size, acreage, features in the cadastral area where the alleged operations, investments, equipment, personnel over mining or prospecting activities are going on in area land belonging, possessed, occupied, by the petitioner through either purchase or lease, as alleged in paragraphs 6 and 7 of the supporting adavit, for the applicant to invoke or allege breach, threats or infringement of the right to own property under Article 40 of the Constitution. 127. Other than making spurious and wild allegations that the 1st respondent has tampered with the online Mining Cadastre System, the petitioner has not provided any substantiation by way of tangible and cogent evidence to support paragraphs 8, 9, 10, 11, and 12 of the supporting adavit. 128. Under the Act, each license or permit application for mining carries distinct statutory requirements, timelines, and payments. There is no evidence of any ocial communication of receipt of the alleged complete applications after the notice to remedy the same was made by the 1st respondent, or enquiries for non-processing of the same, to support paragraphs 13 and 14 of the supporting adavit. 129. The 1st respondent states that the petition is suering from non-disclosure of material facts. Disclosure of material facts at the interlocutory stage is key. The petitioner did not disclose the information now set out in the replying adavit, yet it is clear that communication was sent to the petitioner’s disclosed email address. Failure to make material facts disclosure in court may lead to the lifting of ex parte orders. He who comes to equity must do equity. Similarly, he who comes to court for equitable relief must make full and frank disclosure of material facts within his knowledge. The court, in the circumstances, nds no prima facie case established to grant the orders sought, which, if granted, will also amount to determining the substance of the petition at the interlocutory stage. 130. The petitioner submits that receipt of both the application and requisite fees created a legitimate expectation, now at risk of dissipation in the area identied for mining, if no conservatory orders are made against the respondents. 131. Legitimate expectation was discussed in Communications Commission of Kenya & Others -vs- Royal Media Services (K) Ltd & Others [2014] eKLR, and Fanikiwa -vs- Sirikwa Squatters Petition No. 32 (E036) and 35(E038) and Petition No. 36 (E039) of 2022. It is a doctrine based on an express, clear, and unambiguous promise, which is reasonable, given by a competent authority, in a lawful manner, and in line with the law or the Constitution. 132. A legitimate expectation cannot arise from mere hope or aspiration. The doctrine prevents capricious or arbitrary conduct by public bodies. Any interaction with public bodies by the petitioner cannot https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 14

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per se give rise to a binding promise, especially if there is no compliance with the statutory application process. 133. The petitioner in paragraph 14 of the supporting adavit swears that it had fully complied with the law, its procedures, and regulations in submitting the application, which unfortunately has been met with arbitrary, unlawful, and procedurally unfair administrative conduct in violation of Article 47 of the Constitution. 134. It terms the acts by the respondents as unlawful, removal, suppression, displacement, and threatened transfer of its duly acknowledged mining interests, amounting to threatened arbitrary deprivation of property or interests contrary to Article 40 of the Constitution. These are very serious allegations, which unfortunately are not supported by any evidential material, more so in view of what has now been deposed by the 1st respondent. Non-compliance with the law, its procedures, and regulations cannot attract a legitimate expectation. 135. As to irreparable loss or damage, paragraphs 18, 19, and 20 of the supporting adavit speak of imminent loss or damage due to substantial investments by the petitioner in pursuing the mineral rights in the cadastral area, now likely to be given to third parties as per the new reference numbers. 136. There is no annexure detailing the nature and particulars of the said investment by way of funds, manpower, contractual commitments, logistical resources, operational capital, stakeholder engagements, and evidence of commencement of mining activities. Screenshots attached as AAJ-(4) have not complied with Section 106B of the Evidence Act. 137. Evidence of complaints or follow-ups by the petitioner to the relevant authorities regarding the issuance of such references to third parties in relation to a specic parcel of land in the Turkwel area, as alleged in paragraph 12 of the supporting adavit, is missing. 138. The law does not protect every legitimate expectation, loss, or damage, especially if it is self-inicted. It is only those legitimate expectations, losses, or damage accompanied by legal rights or interests in line with the law that are protectable by way of temporary preservatory orders. 139. In Sehmi and another -vs- Tarabana Company Limited and others (2025)KESC 21 (KLR), the court held that it was the application for renewal of the lease that ignited the legitimate expectation, given that it was addressed to an authority that had the competence to renew the lease. 140. In Attorney General & others -vs- Bao Gold Hill Limited (civil appeal application E0125 of 2025 (2025) KECA 2168 (KLR), at issue was whether the respondent's license had been unlawfully removed from the mining database portal. Conservatory orders had been issued by the trial court in the public interest. The court held that the extraction of minerals was irreversible, for it would signicantly deplete the earth's surface to the detriment of the public, which was or would be, irrecoverable. 141. On the question of public interest, Article 62 (1)(f) of the Constitution places all minerals and mineral oils as public land, vested and held by the national government in trust for the people of Kenya. 142. The respondents only exercise their trusteeship as they execute their duties and powers. They must, in doing so, enforce statutory and constitutional compliance of mining operations. To do otherwise, as held in Cortec Mining Kenya Limited -vs- Cabinet Secretary, Ministry of Mining & 9 others [2017] KECA 515 (KLR), would amount to abdicating responsibilities and be in breach of the doctrine of trusteeship. 143. The court has to consider the petitioner’s alleged rights vis-à-vis the public interest in the governance structure of mineral exploration in Kenya. The reliefs sought as framed seek to interfere with the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 15

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respondents' constitutional and statutory powers, duties, and obligations to sustainable development, utilisation, exploitation, and appropriation of minerals in Kenya. Public interest is defeated if applicants for mineral rights or permits do not follow the law. The court cannot, at this stage, grant the reliefs couched by the petitioner at the interlocutory stage. 144. The court nds that the petitioner has miserably failed to establish a prima facie case or arguable point of any breach or threatened violation of any constitutional right or interest, concerning mining or prospecting rights or permits, in relation to any parcel of land, to be entitled to any conservatory orders at this juncture. 145. Further, the court nds no evidence of any irreparable loss or damage that the petitioner has suered or is likely to suer beyond mere apprehension or fear, as held in Nguruman Ltd -vs- Jan Bonde Neilsen & Others [2014] eKLR. The balance of convenience tilts against granting the temporary injunction. 146. Above all and more importantly, the petitioner, in my considered view, has not proved that, to grant any conservatory orders at this stage, would advance any constitutional values, principles that would be in the public interest, the absence of which the petition shall be rendered nugatory. 147. The upshot is that the application dated 15/4/2026 is dismissed with costs. Any interim orders in existence are hereby vacated, discharged, or set aside forthwith. 148. Mention on 29/7/2026. 149. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 8TH DAY OF JULY 2026. In the presence of: Court Assistant - Dennis Mr. Ali Ahmed for the petitioner present No appearance for the respondents HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18740/eng@2025-07-08 16

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