Applicant’s case;
1. It is the applicant’s case that since the year 2010, it has been involved in prospecting of minerals in Kenya vide two prospecting licenses namely: PL/2018/0202 and PL/2018/0203.
2. On 19th July, 2023, the Applicant submitted separate with the applicant applications for the renewal of its Prospecting Licenses.
3. The Respondents responded via their letters evenly dated 4th March, 2024 that were, belatedly received on 21st March, 2024, informing the Applicant that its applications had been rejected due to lack of the following documents: nonperformance, landowner consent, current CR12, valid tax compliance certificate, evidence of financial and technical resources available for the project, proposal for employment and training of Kenyan citizens and proposal for procurement of goods and services.
4. The Applicant was required to comply with Respondents' demands, in terms of providing the missing requirements, within 14 days of the date of the Respondents' letter, failure to which its applications for renewal would be removed from the online mining cadaster.
5. It is the Applicant’s case that it responded to the letters protesting against the requirements set by the Respondents. In order to address the above concerns, the Applicant, in its letter dated 24th March,2024 made a number of proposals.
6. The 3rd Respondent responded and proposed that a meeting be held between the parties, so as to deliberate on the above issues and chart away forward, with respect to the renewal of the licenses. The said meeting was scheduled on 9th April, 2024.
7. It is its case that subsequent to the above referenced meeting, the Applicant vide a letter dated 15th April, 2024, expressed its commitment to the compliance, performance, and transparency towards the whole process.
8. The Applicant, wrote to the Respondents, on 16th and 24th May, 2024, to follow up on the issues and requested for a further meeting. It argues that the Ministry of Lands and Physical Planning has never responded to the request.
9. On 27th May, 2024 it met with the Respondents and immediately thereafter, the Applicant wrote a letter dated 30th May,2024 expressing gratitude and deeply appreciating the Respondents for their time
10. The Respondents failed to take cognizant of the Applicant's requests to enlarge time within which to comply with the provisions Section 37 of the Mining Act.
11. The applicant is aggrieved that its licenses were abruptly removed from the cadaster on 9th June 2024, without any prior notice or opportunity to address potential concerns.
12. The Applicant contends that the Respondents' decision to remove the Applicant's licenses, from the portal, in the middle of the renewal process, is in bad faith, unfair, unlawful and amounts to violation of the Applicant's right to fair administrative action under the Constitution, Fair Administrative Actions Act and the Mining Act; as well the principles of natural justice.
13. On 14th June,2024, the applicant formally complained against the removal of its licenses from the online mining cadaster and demanded for the restoration for the same. The said letter did not elicit any form of response from the Respondents.
14. This has precipitated the filing of the application that is dated 1st July,2024, that is before this court for determination wherein the Applicant is seeking the following orders:
i. Spent;
ii. THAT the Applicant be granted leave to apply for: -
a. an Order of Certiorari to bring into this court and quash the decision taken by the Respondents, on 9th June 2024, to unfairly, unprocedurally, illegally and unconstitutionally remove the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 from the online mining cadaster system.
b. an Order of Prohibition directed to the Respondents prohibiting them, directly and /or through their servants and/or agents from unfairly, unprocedurally, illegally and unconstitutionally removing the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 from the online mining cadaster system.
c. an Order of mandamus directed to and compelling the Respondents to forthwith restore the Applicant's prospecting licenses: PL/2018/0202and PL/2018/0203 to the online mining cadaster system.
iii. THAT the grant of leave does operate as a stay of the Respondents' further actions geared towards revoking and/or infringing on the Applicant's mineral rights.
iv. THAT pending hearing and determination of this application, the Honourable court be pleased to issue orders restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203.
v. THAT pending hearing and determination of this application, the Honourable court be pleased to issue orders compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) to the online mining cadaster system.
vi. THAT the costs of this application be granted to the Applicant.
vii. The Applicant
15. It believes that it has made out a prima facie case that the Respondents' actions are with tainted with illegality, irrationality and procedural impropriety, in the following aspects:
i. Removal of the Applicant's prospecting licences from the online mining cadaster, without any legal basis.
ii. Unprocedural removal of the Applicant's prospecting licenses from the online mining cadaster, without any notification, whatsoever.
iii. Irrational requirements to comply with requirements that are well beyond the ones stipulated in law.
iv. Applicant's submissions in support of the application dated 1st July, 2024.
v. Purported illegal revocation of the Applicant's prospecting licences, without fair hearing and the attendant notification, contrary to provisions of Section 147 Mining Act.
16. The applicant argues that it has demonstrated an arguable case, calling for further investigation at a full inter partes hearing of the substantive application for judicial review.
17. It is persuaded that the application meets the threshold for grant of leave to apply for judicial review orders sought within the principles as enunciated in Republic v County Council of Kwale & another Ex-parte Kondo & 57 others, (supra), as follows:
“the purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for Judicial Review which are frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration.”
Respondent’s Case;
18. The 1st, 2nd and 3rd oppose the application through the Replying Affidavit of Gregory Kituku.
19. It is his case that the Cabinet Secretary received a physical application for renewal of the aforementioned Prospecting Licenses for consideration for renewal contrary to regulation 4 (2) of The Mining (License and Permit) regulations of 2017.
20. Resultantly, the applications were placed before the Mineral Rights Board for evaluation and subsequent recommendations to the Cabinet Secretary subject to their powers and mandate under section 31 (1) (a) of the Mining Act, Cap.306.
21. He argues that in considering the application the Mineral Rights Board is guided by the given parameters provided under the Mining Act and attendant regulations.
22. The requirements for renewal of a prospecting license are as follows;
“Section 36 of the Mining Act provides that the Mineral Rights Board shall in its evaluation require the applicant to seek the approval of the National Land Commission in respect to public land.
Section 37 of the Mining Act provides that a prospecting right shall not be granted under the Mining Act with respect to private land without the express consent of the registered owner, and such consent shall not be unreasonably withheld.
Section 81 further requires that the holder of a prospecting licence may apply to the Cabinet Secretary for the renewal of the prospecting licence in respect of an area of land that forms part of the prospecting area. Section 46 of the Mining Act requires that to ensure skills transfer to and capacity building for the citizens, the holder of a mineral right shall submit to the Cabinet Secretary a detailed programme for the recruitment and training of citizens of Kenya. This is a condition for the grant of a mineral right.
Section 54 mandates the Cabinet Secretary to request for additional information as may be reasonably required for consideration of the application. Subsection 54 (3) further provides that an application for the grant or renewal of a mineral right shall be deemed to be incomplete until the mineral right holder furnishes the additional information to the Cabinet Secretary.
Proof of submission and approval of environmental audit reports and application for renewal to the National Environmental Management Authority per section 82.
Section 225 (5) provides that the holder of any mineral right in respect of a large-scale operation as defined under the Mining Act shall be required, not later than 18 months following the enactment of the Act and relevant regulations, to update its mine plan concerning conditions of employment, health and safety, management of the environment to be compliant with the Mining Act and its regulations.
Section 225 (6) provides that a mineral right for prospecting, mining or dealing in minerals granted before the Act shall not be extended or renewed but where the granted Mineral Right Provided a right to apply for a renewal or extension of the right, the holder of that mineral right may apply, subject to this Act for a similar type of licence or permit as provided for under this Act on a priority basis.
Section 81(3) provides that an application for the renewal of a prospecting licence shall be made three months before the expiry of the term of the current prospecting licence.”
23. It is his case that the applicant has been operating in the Migori and Narok Counties for the last 4 decades and that the applicant was initially issued with two special licenses to undertake prospecting on 01/08/1988 as special licenses under the Repealed Mining Act, section 17 (2) (b) namely SL No. 122 and SL No.202 covering areas of 245 km2and 184.5 km respectively.
24. The said licenses were renewed over time until the 3rd of August, 2020 under new codes PL/2018/0202 for 107.9318 Km2 and PL/2018/0203 for 137.5801 Km2 respectively in line with the current Mining Act CAP 306. The two licenses were granted for a period of three years and have since expired on third of August, 2023.
25. On 4th March 2024, the applicant was informed that the Mineral Rights Board had rejected the renewal of PL/2018/0202 and PL/2018/0203.
26. The Applicant responded on 11th March 2024, questioning the request for additional information.
27. On 14th March 2024, The Cabinet secretary explained the procedure within the Mining Act under which the renewal of the prospecting licences were being considered.
28. The Respondent went ahead to request for the land owner's consents with their corresponding coordinate failure to which the Applicant would have contravened the Mining Act at the risk of being revoked form the online mining cadaster.
29. The applicant through a letter dated 24th March 2024 responded protesting the request for additional information citing that it was unfair and challenges with compliance with section 37 and 38 of the Mining Act.
30. The Ministry through a letter dated 3rd April 2024 requested for a meeting as a means of further clarifications on the raised issues.
31. A meeting was held on 27th May 2024 wherein the Applicant was given the avenue to present the requested information, the applicant failed to comply.
32. The Ministry remains unconvinced of the merit in renewing the said licenses due to non-compliance with the Mining Act as set out in the email dated 4th April, 2024.
33. The information requested in a letter dated 4thMarch, 2024 was not made available to the State Department even after the Cabinet Secretary allowed their appeal and gave them 14 days to comply hence removal from the Online Mining Cadastre.
34. Consequently, the recommendations of the Mineral Rights Board, conveyed to Mid Migori Mining by the Director of Mines in the letter dated March 4, 2024, to reject the renewal, remained valid and were enforced.
35. Following the removal of Mid Migori's licenses from the online mining cadaster, the areas remained vacant, and new mineral rights applications were lodged. These applications are currently under review in accordance with the Mining Act.
36. Under this administration's Bottom-Up Economic Agenda, the Ministry is also granting mining permits to artisanal and small-scale miners, who are in the thousands, in the same area.
37. It is his case therefore, that request for the Ministry to temporarily restore its licenses to the online mining cadaster system pending the hearing and determination is not feasible, given the presence of other legitimate applicants in the same area.
38. Should the orders sought for be granted, he argues that the nation stands to lose revenue from mineral resources, employment opportunities for affected communities and mineral right applicants who are intent on converting the natural resources to better gains for the nation.
39. The Mining Act in Section 82(3) provides that the Cabinet Secretary shall only renew a prospecting licence where the applicant demonstrates compliance with the Mining Act. That was not the position in the instant case.
Analysis and determination;
40. Upon considering the materials on record, the issues that crystallizes for determination are whether the Applicant has made our a case for the grant of the orders:
A. For leave to institute judicial review proceedings.
B. Stay orders.
The 1st issue whether leave to institute judicial review proceedings.
41. Order 53 Rule 1 of the Civil Procedure Rules 2010 provides that an Applicant must seek leave to institute judicial review proceedings.
42. In judicial review cases, the Leave procedure is meant and intended to eliminate at an early stage any applications for which are either frivolous, vexatious or hopeless.
43. In the case of Republic v County Council of Kwale & another Ex Parte Kondo & 57 others (supra), further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
44. The court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.
45. In the case of Republic v National Transport & Safety Authority & 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
46. In the instant matter, the gist of the Application before this court is that the applicant is seeking for leave to commence judicial review proceedings.
47. I am cognizant of the fact that I cannot get into the merits or the lack of merits of the parties’ respective cases. The court has looked at the procedure leading up to the cause of action, and there seems to be areas of concern which should be addressed in substantive hearing form.
48. At this stage, the court will not delve into the correctness or otherwise of the decision arrived at by the respondent. The court is more interested in the steps taken by the respondent which the court is of the view that it needs to be investigated further and deeply which can only happen at substantive hearing face of the case.
49. It is my finding that the applicant has demonstrated that it has an arguable case that requires ventilation at a substantive hearing.
On the issue of stay;
50. Given that the I have found that the applicant has made out a prima facie case, this court finds it proper and I so hold that the leave should operate as a stay of the Respondents' further actions geared towards revoking and/or infringing on the Applicant's mineral rights.
51. This court is further persuaded that there is a need to preserve the substratum of the suit pending the substantive hearing.
52. Towards achieving this this court finds it appropriate to issue an order the restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203. The failure to issue this order would mean that many miners will secure licences which will have the effect of generating a plethora future conflict platforms should the dispute get determined in favour of the Applicant.
53. This court is alive to the fact that though the Applicants’ license has been revoked and that no new licenses have been issued to any other miners as at the time of filing this suit.
54. Given that the court has issued an order to preserve the substratum of the suit pending the substantive hearing, the court finds that it can only issue an order compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) to the online mining cadaster system once it has heard both parties at the substantive stage and I so hold.
55. The applicant and the Respondents will suffer no prejudice in the circumstances.
Disposition:
56. This court is satisfied that the Applicant has made out a prima facie case warranting the grant of the leave sought.
57. This court is further persuaded that there is a need to preserve the substratum of the suit pending the substantive hearing.
58. The court finds that it cannot issue an order compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) at this stage.
Orders:
1) Leave to file judicial review proceedings is granted.
2) An order is hereby issued restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 pending the hearing and determination of this suit.
3) The prayer that pending the hearing and determination of this application, the Honourable court be pleased to issue orders compelling the Respondents to temporarily restore the Applicant's prospecting licenses (PL/2018/0202 and PL/2018/0203) to the online mining cadastre system is disallowed.
4) The applicant shall file and serve the substantive motion within 14 days of today’s date.
5) The respondent shall file and serve its responses to the application within 14 days of service.
6) The applicant shall thereafter file and serve its submissions within 10 days.
7) The respondents shall file and serve their submissions within 10 days of service.
8) The matter will be mentioned on 10thOctober, 2024 to report compliance.
9) Costs in the cause.
1. It is the applicant’s case that since the year 2010, it has been involved in prospecting of minerals in Kenya vide two prospecting licenses namely: PL/2018/0202 and PL/2018/0203.
2. On 19th July, 2023, the Applicant submitted separate with the applicant applications for the renewal of its Prospecting Licenses.
3. The Respondents responded via their letters evenly dated 4th March, 2024 that were, belatedly received on 21st March, 2024, informing the Applicant that its applications had been rejected due to lack of the following documents: nonperformance, landowner consent, current CR12, valid tax compliance certificate, evidence of financial and technical resources available for the project, proposal for employment and training of Kenyan citizens and proposal for procurement of goods and services.
4. The Applicant was required to comply with Respondents' demands, in terms of providing the missing requirements, within 14 days of the date of the Respondents' letter, failure to which its applications for renewal would be removed from the online mining cadaster.
5. It is the Applicant’s case that it responded to the letters protesting against the requirements set by the Respondents. In order to address the above concerns, the Applicant, in its letter dated 24th March,2024 made a number of proposals.
6. The 3rd Respondent responded and proposed that a meeting be held between the parties, so as to deliberate on the above issues and chart away forward, with respect to the renewal of the licenses. The said meeting was scheduled on 9th April, 2024.
7. It is its case that subsequent to the above referenced meeting, the Applicant vide a letter dated 15th April, 2024, expressed its commitment to the compliance, performance, and transparency towards the whole process.
8. The Applicant, wrote to the Respondents, on 16th and 24th May, 2024, to follow up on the issues and requested for a further meeting. It argues that the Ministry of Lands and Physical Planning has never responded to the request.
9. On 27th May, 2024 it met with the Respondents and immediately thereafter, the Applicant wrote a letter dated 30th May,2024 expressing gratitude and deeply appreciating the Respondents for their time
10. The Respondents failed to take cognizant of the Applicant's requests to enlarge time within which to comply with the provisions Section 37 of the Mining Act.
11. The applicant is aggrieved that its licenses were abruptly removed from the cadaster on 9th June 2024, without any prior notice or opportunity to address potential concerns.
12. The Applicant contends that the Respondents' decision to remove the Applicant's licenses, from the portal, in the middle of the renewal process, is in bad faith, unfair, unlawful and amounts to violation of the Applicant's right to fair administrative action under the Constitution, Fair Administrative Actions Act and the Mining Act; as well the principles of natural justice.
13. On 14th June,2024, the applicant formally complained against the removal of its licenses from the online mining cadaster and demanded for the restoration for the same. The said letter did not elicit any form of response from the Respondents.
14. This has precipitated the filing of the application that is dated 1st July,2024, that is before this court for determination wherein the Applicant is seeking the following orders:
i. Spent;
ii. THAT the Applicant be granted leave to apply for: -
a. an Order of Certiorari to bring into this court and quash the decision taken by the Respondents, on 9th June 2024, to unfairly, unprocedurally, illegally and unconstitutionally remove the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 from the online mining cadaster system.
b. an Order of Prohibition directed to the Respondents prohibiting them, directly and /or through their servants and/or agents from unfairly, unprocedurally, illegally and unconstitutionally removing the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 from the online mining cadaster system.
c. an Order of mandamus directed to and compelling the Respondents to forthwith restore the Applicant's prospecting licenses: PL/2018/0202and PL/2018/0203 to the online mining cadaster system.
iii. THAT the grant of leave does operate as a stay of the Respondents' further actions geared towards revoking and/or infringing on the Applicant's mineral rights.
iv. THAT pending hearing and determination of this application, the Honourable court be pleased to issue orders restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203.
v. THAT pending hearing and determination of this application, the Honourable court be pleased to issue orders compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) to the online mining cadaster system.
vi. THAT the costs of this application be granted to the Applicant.
vii. The Applicant
15. It believes that it has made out a prima facie case that the Respondents' actions are with tainted with illegality, irrationality and procedural impropriety, in the following aspects:
i. Removal of the Applicant's prospecting licences from the online mining cadaster, without any legal basis.
ii. Unprocedural removal of the Applicant's prospecting licenses from the online mining cadaster, without any notification, whatsoever.
iii. Irrational requirements to comply with requirements that are well beyond the ones stipulated in law.
iv. Applicant's submissions in support of the application dated 1st July, 2024.
v. Purported illegal revocation of the Applicant's prospecting licences, without fair hearing and the attendant notification, contrary to provisions of Section 147 Mining Act.
16. The applicant argues that it has demonstrated an arguable case, calling for further investigation at a full inter partes hearing of the substantive application for judicial review.
17. It is persuaded that the application meets the threshold for grant of leave to apply for judicial review orders sought within the principles as enunciated in Republic v County Council of Kwale & another Ex-parte Kondo & 57 others, (supra), as follows:
“the purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for Judicial Review which are frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration.”
Respondent’s Case;
18. The 1st, 2nd and 3rd oppose the application through the Replying Affidavit of Gregory Kituku.
19. It is his case that the Cabinet Secretary received a physical application for renewal of the aforementioned Prospecting Licenses for consideration for renewal contrary to regulation 4 (2) of The Mining (License and Permit) regulations of 2017.
20. Resultantly, the applications were placed before the Mineral Rights Board for evaluation and subsequent recommendations to the Cabinet Secretary subject to their powers and mandate under section 31 (1) (a) of the Mining Act, Cap.306.
21. He argues that in considering the application the Mineral Rights Board is guided by the given parameters provided under the Mining Act and attendant regulations.
22. The requirements for renewal of a prospecting license are as follows;
“Section 36 of the Mining Act provides that the Mineral Rights Board shall in its evaluation require the applicant to seek the approval of the National Land Commission in respect to public land.
Section 37 of the Mining Act provides that a prospecting right shall not be granted under the Mining Act with respect to private land without the express consent of the registered owner, and such consent shall not be unreasonably withheld.
Section 81 further requires that the holder of a prospecting licence may apply to the Cabinet Secretary for the renewal of the prospecting licence in respect of an area of land that forms part of the prospecting area. Section 46 of the Mining Act requires that to ensure skills transfer to and capacity building for the citizens, the holder of a mineral right shall submit to the Cabinet Secretary a detailed programme for the recruitment and training of citizens of Kenya. This is a condition for the grant of a mineral right.
Section 54 mandates the Cabinet Secretary to request for additional information as may be reasonably required for consideration of the application. Subsection 54 (3) further provides that an application for the grant or renewal of a mineral right shall be deemed to be incomplete until the mineral right holder furnishes the additional information to the Cabinet Secretary.
Proof of submission and approval of environmental audit reports and application for renewal to the National Environmental Management Authority per section 82.
Section 225 (5) provides that the holder of any mineral right in respect of a large-scale operation as defined under the Mining Act shall be required, not later than 18 months following the enactment of the Act and relevant regulations, to update its mine plan concerning conditions of employment, health and safety, management of the environment to be compliant with the Mining Act and its regulations.
Section 225 (6) provides that a mineral right for prospecting, mining or dealing in minerals granted before the Act shall not be extended or renewed but where the granted Mineral Right Provided a right to apply for a renewal or extension of the right, the holder of that mineral right may apply, subject to this Act for a similar type of licence or permit as provided for under this Act on a priority basis.
Section 81(3) provides that an application for the renewal of a prospecting licence shall be made three months before the expiry of the term of the current prospecting licence.”
23. It is his case that the applicant has been operating in the Migori and Narok Counties for the last 4 decades and that the applicant was initially issued with two special licenses to undertake prospecting on 01/08/1988 as special licenses under the Repealed Mining Act, section 17 (2) (b) namely SL No. 122 and SL No.202 covering areas of 245 km2and 184.5 km respectively.
24. The said licenses were renewed over time until the 3rd of August, 2020 under new codes PL/2018/0202 for 107.9318 Km2 and PL/2018/0203 for 137.5801 Km2 respectively in line with the current Mining Act CAP 306. The two licenses were granted for a period of three years and have since expired on third of August, 2023.
25. On 4th March 2024, the applicant was informed that the Mineral Rights Board had rejected the renewal of PL/2018/0202 and PL/2018/0203.
26. The Applicant responded on 11th March 2024, questioning the request for additional information.
27. On 14th March 2024, The Cabinet secretary explained the procedure within the Mining Act under which the renewal of the prospecting licences were being considered.
28. The Respondent went ahead to request for the land owner's consents with their corresponding coordinate failure to which the Applicant would have contravened the Mining Act at the risk of being revoked form the online mining cadaster.
29. The applicant through a letter dated 24th March 2024 responded protesting the request for additional information citing that it was unfair and challenges with compliance with section 37 and 38 of the Mining Act.
30. The Ministry through a letter dated 3rd April 2024 requested for a meeting as a means of further clarifications on the raised issues.
31. A meeting was held on 27th May 2024 wherein the Applicant was given the avenue to present the requested information, the applicant failed to comply.
32. The Ministry remains unconvinced of the merit in renewing the said licenses due to non-compliance with the Mining Act as set out in the email dated 4th April, 2024.
33. The information requested in a letter dated 4thMarch, 2024 was not made available to the State Department even after the Cabinet Secretary allowed their appeal and gave them 14 days to comply hence removal from the Online Mining Cadastre.
34. Consequently, the recommendations of the Mineral Rights Board, conveyed to Mid Migori Mining by the Director of Mines in the letter dated March 4, 2024, to reject the renewal, remained valid and were enforced.
35. Following the removal of Mid Migori's licenses from the online mining cadaster, the areas remained vacant, and new mineral rights applications were lodged. These applications are currently under review in accordance with the Mining Act.
36. Under this administration's Bottom-Up Economic Agenda, the Ministry is also granting mining permits to artisanal and small-scale miners, who are in the thousands, in the same area.
37. It is his case therefore, that request for the Ministry to temporarily restore its licenses to the online mining cadaster system pending the hearing and determination is not feasible, given the presence of other legitimate applicants in the same area.
38. Should the orders sought for be granted, he argues that the nation stands to lose revenue from mineral resources, employment opportunities for affected communities and mineral right applicants who are intent on converting the natural resources to better gains for the nation.
39. The Mining Act in Section 82(3) provides that the Cabinet Secretary shall only renew a prospecting licence where the applicant demonstrates compliance with the Mining Act. That was not the position in the instant case.
Analysis and determination;
40. Upon considering the materials on record, the issues that crystallizes for determination are whether the Applicant has made our a case for the grant of the orders:
A. For leave to institute judicial review proceedings.
B. Stay orders.
The 1st issue whether leave to institute judicial review proceedings.
41. Order 53 Rule 1 of the Civil Procedure Rules 2010 provides that an Applicant must seek leave to institute judicial review proceedings.
42. In judicial review cases, the Leave procedure is meant and intended to eliminate at an early stage any applications for which are either frivolous, vexatious or hopeless.
43. In the case of Republic v County Council of Kwale & another Ex Parte Kondo & 57 others (supra), further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
44. The court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.
45. In the case of Republic v National Transport & Safety Authority & 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence is low and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
46. In the instant matter, the gist of the Application before this court is that the applicant is seeking for leave to commence judicial review proceedings.
47. I am cognizant of the fact that I cannot get into the merits or the lack of merits of the parties’ respective cases. The court has looked at the procedure leading up to the cause of action, and there seems to be areas of concern which should be addressed in substantive hearing form.
48. At this stage, the court will not delve into the correctness or otherwise of the decision arrived at by the respondent. The court is more interested in the steps taken by the respondent which the court is of the view that it needs to be investigated further and deeply which can only happen at substantive hearing face of the case.
49. It is my finding that the applicant has demonstrated that it has an arguable case that requires ventilation at a substantive hearing.
On the issue of stay;
50. Given that the I have found that the applicant has made out a prima facie case, this court finds it proper and I so hold that the leave should operate as a stay of the Respondents' further actions geared towards revoking and/or infringing on the Applicant's mineral rights.
51. This court is further persuaded that there is a need to preserve the substratum of the suit pending the substantive hearing.
52. Towards achieving this this court finds it appropriate to issue an order the restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203. The failure to issue this order would mean that many miners will secure licences which will have the effect of generating a plethora future conflict platforms should the dispute get determined in favour of the Applicant.
53. This court is alive to the fact that though the Applicants’ license has been revoked and that no new licenses have been issued to any other miners as at the time of filing this suit.
54. Given that the court has issued an order to preserve the substratum of the suit pending the substantive hearing, the court finds that it can only issue an order compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) to the online mining cadaster system once it has heard both parties at the substantive stage and I so hold.
55. The applicant and the Respondents will suffer no prejudice in the circumstances.
Disposition:
56. This court is satisfied that the Applicant has made out a prima facie case warranting the grant of the leave sought.
57. This court is further persuaded that there is a need to preserve the substratum of the suit pending the substantive hearing.
58. The court finds that it cannot issue an order compelling the Respondents to temporarily restore the Applicant's prospecting licences (PL/2018/0202 and PL/2018/0203) at this stage.
Orders:
1) Leave to file judicial review proceedings is granted.
2) An order is hereby issued restraining the Respondents, their servants and/or agents from convening any meeting for purposes of processing and/or issuing any mineral rights in areas covered by the Applicant's prospecting licenses: PL/2018/0202 and PL/2018/0203 pending the hearing and determination of this suit.
3) The prayer that pending the hearing and determination of this application, the Honourable court be pleased to issue orders compelling the Respondents to temporarily restore the Applicant's prospecting licenses (PL/2018/0202 and PL/2018/0203) to the online mining cadastre system is disallowed.
4) The applicant shall file and serve the substantive motion within 14 days of today’s date.
5) The respondent shall file and serve its responses to the application within 14 days of service.
6) The applicant shall thereafter file and serve its submissions within 10 days.
7) The respondents shall file and serve their submissions within 10 days of service.
8) The matter will be mentioned on 10thOctober, 2024 to report compliance.
9) Costs in the cause.