[Appeal from the conviction and sentence by Hon. M. W. Njagi, Senior Principal Magistrate,
dated 3rd November 2021 in Nairobi Chief Magistrate's Criminal Case No. 1087 of 2017]
1. The appellant was convicted for abuse of office contrary to section 101 as read together with section 102A of the Penal Code. He was fined Kshs. 500,000 in default to serve one year's imprisonment.
2. The particulars in the amended charge sheet were-
That on or about 7th March 2013 at the Ministry of Environment and Mineral Resources Headquarters Nairobi within Nairobi City, being a person employed in the public service as a commissioner of mines, arbitrarily issued M/S Cortec Mining Kenya Limited Company with Special Mining Licence No. 351 in abuse of the authority of his office.
3. Being aggrieved, he filed a petition of appeal dated 17th November 2021 raising 35 grounds. The grounds were too lengthy, argumentative and repetitive. On 2nd October 2025, I granted the appellant general leave under section 350 of the Criminal Procedure Code to amend the pleadings. Leave was also granted to prepare and serve a complete record of appeal.
4. The fresh grounds of appeal and amended record of appeal are now dated 24th October 2025 and 21st January 2026 respectively.
5. The amended petition raises nine grounds, which may be compressed into four: Firstly, that the trial court was biased against the appellant and relied on inadmissible hearsay (Grounds 1, 2, 6–8); secondly, that the court misinterpreted section 17 of the Mining Act and section 58 of the Environmental Management & Co-ordination Act, 1999 (hereafter EMCA), and that accordingly, there was no proof of arbitrary conduct (Grounds 3–4); thirdly, that the appellant enjoyed immunity from prosecution under section 11 of the Mining Act for all acts done in good faith (Ground 5); and, fourthly, that there was no proof of mens rea (Ground 9).
6. The appeal is contested by the republic through grounds of opposition dated 29th October 2025. It is a generic attack contending that the charge was proved beyond any reasonable doubt; and, that the sentence handed down was well deserved.
7. Learned counsel for the appellant lodged final submissions dated 28th May 2026 together with a bundle of authorities and a case digest. The republic relied on submissions dated 15th April 2026.
8. On 18th June 2026, I heard further arguments from both learned counsel for the appellant and the republic.
9. This is a first appeal to the High Court. I have thus examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Pandya v Republic [1957] E.A. 336; Okeno v Republic [1972] E. A. 32; Njoroge v Republic [1987] KLR 19; Kiilu & Another v Republic [2005] 1 KLR 174.
10. The prosecution called ten witnesses. Moses Njiru Njeru (PW1) was an inspector of mines from August 1998 to March 2016 when he migrated to the Kenya Chamber of Mines. On 4/8/2008 he received an application dated 22/5/07 for a special licence (exclusive prospecting licence) to prospect for minerals within Kwale County (exhibit 1) from one Harie Kinosthe Ndungu (PW8).
11. By then the applicant had already been issued with the prospecting right No. 8258 dated 15/5/2007 produced as exhibit 1(a). In PW1’s view, the application was incomplete for want of certain documents including the consent from Kwale County Council and land owner’s consent.
12. On 2/11/2007 the then Commissioner of Mines and Geology Lojomong Biwott (PW9) informed the applicant, Cortec Mining Kenya Limited, that it would be considered for a free area of approximately 1180 sq kms, excluding the Mrima Hill nature reserve. The history of how the company got the initial Special Prospecting License No. 256 (hereafter SPL 256) can be gleaned from this witness.
13. He said that he received the application for an explosive prospecting license from Anderson and Njiri Kamau to prospect for rare minerals. He advised them to get a “local person who had prospecting rights” and suggested his colleague who had been retrenched, Hanie Kinosthe Ndung'u (PW8).
14. When the application was placed before the Prospecting and Mining Licensing Committee (hereafter the PMLC Committee) on 17/9/07 it was deferred for want of land owner consent and consent from Kwale County Council. Those documents were subsequently availed and he advised the applicants that they would be considered for an area of approximately 1180 square kms excluding Mrima Hills which was a nature reserve. Following the publication of the relevant notice in the Kenya Gazette on 30/11/07, and there being no objection, the special prospecting license No. 256 (exhibit 3) was issued on 4/4/08 for a period of two years.
15. PW1 said the prospecting license was renewed twice. The renewal for an additional 3 years was made by the appellant who was then then the acting Commissioner of Mines and Geology (exhibit 4).
16. On 24/9/12 the appellant wrote to the company informing it that its special license No. 256 covering the Mrima Hill area of Kwale County stood revoked unless they showed cause within 21 days. The reason was that it had come to the knowledge of the Department of Mines and Geology that the company continued to trade with the license through issuance of shares to third parties without the written consent of the Commissioner as required by section 21(1) of the Mining Act (2012).
17. Following a letter from the company’s lawyers attaching a list of shareholders or directors, the appellant suspended any punitive action pending further investigation.
18. PW1 said that on 7/3/13 the appellant issued the Special Mining License No. 351 for Loninga which reduced the mining area within the initial Special Prospecting License No. 256. PW1 added that under the Mining Act (2012) there was no license known as Special Mining License and hence there was no way of knowing what documentation was required. PW2 declined to witness the license; the appellant then asked his secretary (PW5) to witness it. He added that the Special Mining License No. 351 was revoked by the cabinet secretary on 5/8/2013.
19. Raymond Mutie Mutiso (PW2), was the Chief Superintendent Inspector of Mines. By dint of the office, he was a member of PMLC committee. The committee's meeting held on 31/1/13, found that the Special Prospecting License No. 256 was irregular and recommended that it be revoked subject to consultations with the Head of Public Service.
20. That version was reiterated by Gideon Kiptoo Melly (PW3), a Senior Superintendent Inspector of mines, and who recorded the minutes. It was reinforced by David Irungu Murobi (PW7) who also attended the meeting. The latter was now stationed at Madini House as Inspector of Mines. According to PW2, PW3 and PW7, the licence was later revoked by Hon. Najib Balala, the Cabinet Secretary in the newly created Ministry of Mining.
21. On 6/3/13 the appellant called PW1 and PW2 and informed them he intended to grant the Special Mining License to the company. PW2 advised him that the Act did not provide for such a license and only provided for a Mining Lease or Special Mining Lease, the latter under section 55 for a term of 5 to 21 years and the former under section 39 for a term of up to 5 years.
22. He added that the Special Prospecting License No. 256, the platform upon which the current application was made, was to be revoked and the decision had not been rescinded. He and PWI thus advised the appellant against issuing the special license for 21 years under section 17. That nevertheless the accused went ahead and prepared the special mining licence. When PW2 declined to witness it, the appellant instructed his secretary (PW5) to do so.
23. Agnes Wanjiku Wamburo (PW5) was the secretary in the office of Commissioner of Mines and Geology. Her duties included typing and witnessing execution of licences. On 7/3/13 she signed the Special Prospecting License No. 251 as a witness after the appellant had executed and sealed it.
24. Like I stated, PW8 was Harie Kinosthe Ndung’u. In early 2010, he was approached by one Robert Mathew to secure a mining licence for a company, Kingdom Minerals, which later rebranded to Cortec Mining Kenya Limited. From that stage he dealt with one David Anderson, the Managing Director.
25. PW8 paid Kshs. 2,000 to the Commissioner, procured the consent of Kwale County Council and secured the prospecting rights. He claimed that acting on behalf of the company, he applied for a prospecting license and the special license No. 256 which was granted on 4/4/08 for a period of two years. He was emphatic that the company did not regularise the paper work which PW8 had done in his individual name.
26. Dickson Munene Njora (PW6) was the Principal Compliance and Enforcement Officer at the National Environmental Management Authority (NEMA). On 16/6/12 he attended a public hearing for the company’s proposed mining project. Thereafter, NEMA issued conditions for approval of EIA license Reference NEMA/PR/5/2/794 dated 8/7/13. He said that the conditions were not met and that when SML351 was revoked the said conditions became null and void.
27. When the appellant was placed on his defence, he testified that in 2008, and at the time SPL 256 was issued, he was a Provincial Geologist based at Nakuru. He was appointed Acting Commissioner of Mines and Geology on 17/8/2010 and confirmed to the position on 23/5/12.
28. He said the company completed prospecting and exploration during his tenure as Commissioner of Mines and Geology and applied for the mining lease via the application (Defence exhibit 15). He granted the licence under section 17 of the Mining Act on 7/3/2013. He added that although the company had not been granted an EIA certificate, the mining license was conditional, and required it to carry out the EIA before commencing mining.
29. In his view, section 58(1) of the EMCA envisaged “mutual approvals and licenses by other authorities in force in Kenya” which informed the grant of the licence and “bearing in mind that actual mining was not to commence before compliance with that condition”. His interpretation was that there was no conflict between section 17(2)(b) and 3 of the Mining Act (2012) and section 58 of EMCA.
30. He made an explosive allegation that while in a meeting with a representative of the company, he called the Cabinet Secretary, Hon. Najib Balala, who demanded a bribe of Kshs. 80 million in default of which the license would be cancelled. On 25/7/13 the Permanent Secretary in the ministry asked the accused to prepare a brief on all the mining licenses that had been issued since January 2013. He later learnt that the Cabinet Secretary had announced his interdiction at a press conference.
31. He testified that section 11 of the Mining Act (2012) protected him against civil and criminal proceedings. He added that the Public Service Commission did not support his interdiction and reinstated him by the letter produced as exhibit 30.
32. Like I stated, his sole witness was Ali Daud Mohammed (DW2) and who fully adopted his written witness statement (Def. exhibit 41). He is a former Permanent Secretary in the then Ministry of Environment and Mineral Resources. In a letter dated 16/3/2013 (Def.exh3) addressed to the director NEMA, he opined that the position taken by NEMA “goes contrary to Government position and has no environmental justification whatsoever”.
33. I will move straight to the crux of this appeal: The submissions by learned counsel for the appellant both at the lower court and in this appeal is four-pronged: Firstly, that the Commissioner had the power and final discretion to grant Special Mining Licence No. 351. Secondly, that SML 351 met all the legal requirements; or, that the EIA could be procured before commencement of the actual mining. Thirdly, that a reading of section 17 of the Mining Act (2012) mirrored against section 58 of EMCA showed that the EIA licence was not a condition precedent; and, that Regulation 4(2) of the Environmental (Impact Assessment and Audit) Regulations, 2003 were subservient to the two statutes. Fourthly, that the entire prosecution was a vindictive witch hunt by the line cabinet secretary.
34. It is gainsaid that the appellant was the Commissioner of Mines and Geology; and, that under the Mining Act (2012), he had final authority and power to grant prospecting licenses. I also agree that the recommendations of the Prospecting and Mining Licensing Committee (hereafter the PMLC Committee) were not necessarily binding on him.
35. The key consideration is whether he abused that power by issuing the company with Special Mining Licence No. 351. Paraphrased, had the company met all conditions precedent? In short, his discretion could not operate in a complete vacuum. Despite his immense power, he could not just wake up one morning and grant such an impactful licence. This is particularly so in light of articles 60 and 61 of the Constitution that I will discuss shortly.
36. From the uncontroverted evidence of PW1, PW2 and PW3 I find that there was a clear chain of processes: Once an application was lodged, it would be placed before the Commissioner of Mines and Geology, who would mark it to the head of mines section and who would in turn mark it to the Inspector of Mines who in turn would peruse it for completeness and send the file to the registry. For mining applications, there would be verification on the ground to ascertain the land area and suitability for mineral extraction.
37. The company’s initial application SPL No. 256 lacked key documentation: They included the consent of Kwale County Council and that of the land owner. It is thus not surprising that on 17/10/07, the PMLC Committee deferred the application to give the applicant time to avail the missing documents.
38. Although PW2 testified that PW8 obtained the consent of Kwale County Council on his own, the Commissioner (appellant) produced a copy of the consent showing that PW8 submitted the application for an exclusive prospecting license as an agent for Cortec Mining Company. But the problem is that the certificate of incorporation (MFI 11A) shows the company was incorporated on 4th July 2007 two months after PW8 had paid for the consent.
39. That is why PW2 insisted that the Special Prospecting License No. 256 issued to Cortec Mining Company Limited was irregular and it was resolved to revoke it.
40. In the meantime, the earlier special license No. 256 became a big boon to the company and it traded with the license by issuing lucrative shares to third parties without the written consent of the Commissioner required by section 21(1) of the Mining Act. On 24/9/12 the appellant wrote to Cortec informing it that its special prospecting license No. 256 covering the Mrima Hill area of Kwale County was now revoked for a period of 21 days. The company’s lawyers refuted those allegations and the suspension was lifted.
41. I stated earlier that Harie Kinosthe Ndung'u (PW8) had an axe to grind with the company. I took his evidence with caution because he blamed the company for reneging on its promise to grant him shares and for giving his job away to expatriates. My fears were reinforced because he wrote to the Commissioner sometime in December 2012 seeking that the license be cancelled.
42. That said, the fact remains that in early 2010, he was approached by one Robert Mathew to secure a mining licence for a company, Kingdom Minerals, which later rebranded to Cortec Mining Kenya Limited. The company never regularized the earlier paperwork to PW8. So much so that the “application” now before the appellant for a special mining licence was founded on the original documents presented by PW8 on 22/5/07 on behalf of the company using the prospecting right granted to him as an individual. Furthermore, the company had applied for a special mining lease under section 55 of the Act in 2012.
43. I am alive that when the appellant was placed on his defence, he produced a copy of the consent showing that PW8 submitted the application for an exclusive prospecting license as an agent for Cortec Mining Company. As I observed, the problem is that the certificate of incorporation (MFI 11A) shows that the company was incorporated on 4th July 2007 two months after PW8 had paid for the consent.
44. Additionally, the Environmental Impact Assessment (hereafter EIA) was missing. As late as 26th March 2013, PS Ali Mohamed (DW2) was still piling pressure on NEMA to approve the EIA. Furthermore, both PW1 and PW2 expressed doubts whether the Mining Act (2012) provided for a Special Mining Licence.
45. My reading of the applicable Mining Act (which has since been amended in 2016) shows there were only two types of licences in the case, a position confirmed by PW1, PW2 and PW3: Mining Lease for 5 to 21 years under section 55 or Special Mining Lease under section 39 for 5 years. But I am alive that under section 17 (2) (b) special licences could be granted for areas that were previously closed but now re-opened by notice in the Gazette. In that case an exclusive prospecting licence could be issued under section 18.
46. But it seems to me that the appellant was determined to go ahead notwithstanding that Cortec Mining had not applied for such a license anyway. I say so because in 2012, the company had applied for a special mining lease under section 55 of the Act but which seems to have been declined. On 6/3/13 the appellant informed PW1 and PW2 that he was going to issue a special Mining Licence anyway. It is then not surprising that on 7th March 2013, PW2 declined to witness the execution of the licence.
47. The appellant had to turn to his secretary, Agnes Wanjiku Wamburo (PW5). There was nothing wrong with her attestation. But it seriously worries me that the appellant intended, and proceeded to issue a Special Mining Licence which was foreign to the statute for a term of 21 years, at an annual fee of only Kshs 500,000 and in the absence of a mandatory EIA certificate.
48. The company’s licence entitled it to mine niobium and rare earths for a fixed royalty of 3% and 5% respectively. I disagree with the appellant that no prior EIA licence was required for this kind of huge undertaking. I am fortified by the express provisions in the Second Schedule of the EMCA. I find that the grant of the special mining licence for such a gigantic project encompassing Mrima Hills, which was gazetted as a forest or nature reserve was highly irregular and unlawful.
49. Section 58 (1) as read with 58 (2) of the EMCA provides as follows-
(1) Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.
(2) The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.
50. Regulation 4(2) of the Environmental (Impact Assessment and Audit) Regulations, 2003 (hereafter the Regulations) on the other hand provide that no licensing authority “shall issue a licence for any project for which an environmental impact assessment is required…unless the applicant produces to the licensing authority a licence of environmental impact assessment”.
51. Needless to say, the Regulations under EMCA are subservient to the statute. I have weighed section 58 of EMCA above against section 17 of the Mining Act (2012). The appellant's submission that there is no conflict between section 17 of the Act and section 58 of EMCA is difficult to sustain. The colonial fiat under sections 11 and 17 of the old Mining Act must now be tempered by EMCA and brought into conformity with the Constitution. The Sixth Schedule, Rule 7 of the Constitution is emphatic on that point.
52. In this case there was no authorisation to the proponent to forego the submission of the EIA study. I am also fortified in that finding because the former Commissioner of Mines and Geology Lojomong Biwott (PW9) was clear in his evidence in chief that granted the nature of the intended mining and area in question, an EIA was a must before the grant of the license. There is also authority from the Court of Appeal in Cortec Mining Kenya Limited v The Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR. That also answers grounds 3 to 4 of the petition.
53. So, was the appellant acting in good faith or entitled to enjoy the indemnity under section 11 of the Mining Act? My answers are negative. That provision only bars any civil or criminal proceeding against the Commissioner for anything done in “good faith in execution of his duty”. He raised the issue at the trial court through Def. Exh. 22 (pp.436–442, Vol. I) and Def. Exh. 32 (pp.490–500, Vol. I and pp.1–7, Vol. II) as well as his written submissions. As I will discuss shortly, the appellant was well aware that the application by the company was defective but went full steam to grant it.
54. The appellant may have drawn some comfort from the positive reviews and attention that the project generated within the political class over the years; and, the 81 legal and technical documents he had reviewed before issuing SML 351 (Def. Ex. 31, pp.488–489, Vol. I). Furthermore, the Permanent Secretary wrote three weeks later that SML 351 was in furtherance of national policy. The Public Service Commission had also reinstated the appellant and restored his salary.
55. The learned trial magistrate did not make specific reference to section 11 of the Act. My considered view is that on the totality of the prosecution’s case, the appellant did not act in good faith and could not then benefit from the protection of section 11 of the Act. He was moving against the tide of solid advice of the PMLC committee including that of PW1 and PW2. Of course, it was not binding. But he was prepared to grant an unknown Special Mining License under section 17 contrary to the provisions providing for a Mining Lease for 5 to 21 years under section 55 or for 5 years under section 39. Furthermore, there was recommendations to revoke SPL No. 256 which was the foundation for the SPL 351.
56. He did not seem to have regard for the fact that a long-term license of 21 years for a project of this magnitude required an EIA license. He knew or ought to have known from his long employment in the sector, that Mrima Hill was gazetted as a forest or nature reserve, and for which consent of Kwale County was required.
57. The application itself was founded on the initial SPL 256 which had gaps I dealt with earlier. More importantly, SPL 256, the platform upon which the special mining licence was founded, was to be revoked and the decision had not been rescinded. Even more disturbing was that Cortec had not formally applied for a special mining licence. But the appellant told PW1 and PW2 that he would go ahead anyway. He was a man in a hurry at a time of political transition; the general election having just taken place. Taken together, all these events point to a clandestine or ulterior motive. I thus find mens rea for abuse of his office was proved to the required standard.
58. I stated at earlier that this is a first appeal which places me squarely in the shoes of the trial court. It is not lost on me that the appellant was a public officer on the material date of 7th March 2013. Under articles 60 and 61 of the Constitution, all minerals and mineral oils as defined by law are public land. The appellant, in conduct of his office, was required to act in the public interest and adhere to the national values and principles of governance in article 10.
59. On the totality of the prosecution evidence and my analysis of the law and procedures, I readily find that the applicant intentionally acted arbitrarily to the prejudice of the republic and hence abused his office when he granted the company the so-called Special Mining Licence on 7th March 2013. It was a long-term license spanning 21 years for 142.159 hectares of land at Mrima Hills, which was gazetted as a forest or nature reserve and without the required Environmental Impact Assessment Licence. When combined with what I stated in paragraphs 52, 53, 55, 56 and 57 of this judgment, I find that he had a clear criminal intent and which fully unites with the actus reus for this offence.
60. That finding is sufficient to dispose of this appeal. But to be fair to all the parties and the detailed submissions made in this matter, I will briefly address the other aspects of this appeal.
61. I will deal with grounds 1 – 2, 6, 7 and 8 of the appeal together. Firstly, the appellant's case is that his rights to a fair trial were violated. He is aggrieved by the trial court’s reliance on exhibits 17 and 18: the Kenya Chamber of Mines (A letter authored by Adiel Gitari at p.342, Vol. I) and the then Cabinet Secretary's (Najib Balala’s) complaint letter at (pp.343–344, Vol. I), which all triggered the investigation in this case.
62. In view of the fact that none of the two recorded a statement or testified (a fact freely admitted by PW10), I find that the evidence constituted hearsay and was not properly admitted under the Evidence Act. It was thus a misdirection by the learned trial magistrate to make extensive references to the two documents as the basis for the investigations. See generally R v Githunguri [1986] KLR 223.
63. The better course would have been to state that according to the investigating officer (PW10), the investigations were triggered by a complaint from those two persons in the letters already marked for identification.
64. Before I leave the matter, I find that the evidence of PW10, who merely gave a summary of what the investigators and the DPP did before charging the accused, was not pivotal to the conviction. He did not carry out any independent investigations beyond recording witness statements and forwarding the file to the DPP for action. The point to be made is that investigative shortcomings of this kind do not, without more, found a ground to quash the conviction.
65. Furthermore, the conviction by the lower court was not based on those two letters. Rather it was founded on the evidence of other key witnesses who took to the stand. Paraphrased, with or without those letters, and as I have already concluded earlier, the conviction was well founded in this case.
66. The broader claim that the trial court operated a wholesale “double standard”, admitting the prosecution's hearsay while rejecting some eighty pages of defence material on an identical objection, is not fully made out. The typed ruling on the objection to production of the defence's DMFIs at pp.163–169 of the record shows a considerably more differentiated exercise than the appellant's submissions suggest.
67. For instance, DMFIs 1, 4, 5, 6, 8, 12, 12(a), 12(b), 15, 22, 27, 29 and 30 were admitted, principally because their provenance was undisputed or because they had come from the prosecution itself during pre-trial. DMFIs 1(a)–1(b), 7, 9, 10(a)–10(b), 11, 14, 17(a)–17(b), 18, 19(a)–19(c), 20, 20A–20B, 21, 23–25, 26, 28 and 31 were declined as uncertified photocopies, unsigned or undated documents, material not authored or addressed to the appellant, or, for photographs and electronic material, for want of the certificate required under sections 78 and 106B of the Evidence Act.
68. I find that the learned trial magistrate made a reasoned, document-by-document application of ordinary authentication rules. Fundamentally, I would be hard pressed to say she displayed outright bias or that the appellant was denied a fair trial enshrined in articles 25 and 50 of the Constitution.
69. The appellant is aggrieved that the learned trial magistrate did not analyse the evidence of PW8 and PW9. A judgment is a summary and cannot possibly analyse every detail of each witness’s testimony. In this case, the trial court gave a detailed summary of the evidence of all the 10 witnesses for the prosecution and the two defence witnesses in the first nine pages of the typed judgment (pp 213-222 Vol. I) of the record. What follows after that is the analysis by the learned trial magistrate of the key and material evidence to the charge.
70. It is true for example, that PW9, the appellant's own predecessor as Commissioner of Mines and Geology, said in cross-examination that section 17 of the Mining Act and section 58 of EMCA permitted exactly what the appellant did, and that section 58 prevailed over the subsidiary Regulations. He was fully entitled to that opinion. But I have already made a finding on this issue.
71. The learned trial magistrate accepted in her judgment (page 228 Vol I) that issuing licences was the preserve of the appellant. However, the licence in this case required an Environment Impact Assessment certificate as a condition precedent. She went further to cite the applicable precedent from the Court of Appeal in Cortec Mining Kenya Limited versus The Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR and adapted in the ICSID case No. ARB/15/29 Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited (claimants) and Republic of Kenya (Respondent)
72. I fully concur with those findings. The truth, as I have discussed earlier in this judgmen
[...truncated]
dated 3rd November 2021 in Nairobi Chief Magistrate's Criminal Case No. 1087 of 2017]
1. The appellant was convicted for abuse of office contrary to section 101 as read together with section 102A of the Penal Code. He was fined Kshs. 500,000 in default to serve one year's imprisonment.
2. The particulars in the amended charge sheet were-
That on or about 7th March 2013 at the Ministry of Environment and Mineral Resources Headquarters Nairobi within Nairobi City, being a person employed in the public service as a commissioner of mines, arbitrarily issued M/S Cortec Mining Kenya Limited Company with Special Mining Licence No. 351 in abuse of the authority of his office.
3. Being aggrieved, he filed a petition of appeal dated 17th November 2021 raising 35 grounds. The grounds were too lengthy, argumentative and repetitive. On 2nd October 2025, I granted the appellant general leave under section 350 of the Criminal Procedure Code to amend the pleadings. Leave was also granted to prepare and serve a complete record of appeal.
4. The fresh grounds of appeal and amended record of appeal are now dated 24th October 2025 and 21st January 2026 respectively.
5. The amended petition raises nine grounds, which may be compressed into four: Firstly, that the trial court was biased against the appellant and relied on inadmissible hearsay (Grounds 1, 2, 6–8); secondly, that the court misinterpreted section 17 of the Mining Act and section 58 of the Environmental Management & Co-ordination Act, 1999 (hereafter EMCA), and that accordingly, there was no proof of arbitrary conduct (Grounds 3–4); thirdly, that the appellant enjoyed immunity from prosecution under section 11 of the Mining Act for all acts done in good faith (Ground 5); and, fourthly, that there was no proof of mens rea (Ground 9).
6. The appeal is contested by the republic through grounds of opposition dated 29th October 2025. It is a generic attack contending that the charge was proved beyond any reasonable doubt; and, that the sentence handed down was well deserved.
7. Learned counsel for the appellant lodged final submissions dated 28th May 2026 together with a bundle of authorities and a case digest. The republic relied on submissions dated 15th April 2026.
8. On 18th June 2026, I heard further arguments from both learned counsel for the appellant and the republic.
9. This is a first appeal to the High Court. I have thus examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Pandya v Republic [1957] E.A. 336; Okeno v Republic [1972] E. A. 32; Njoroge v Republic [1987] KLR 19; Kiilu & Another v Republic [2005] 1 KLR 174.
10. The prosecution called ten witnesses. Moses Njiru Njeru (PW1) was an inspector of mines from August 1998 to March 2016 when he migrated to the Kenya Chamber of Mines. On 4/8/2008 he received an application dated 22/5/07 for a special licence (exclusive prospecting licence) to prospect for minerals within Kwale County (exhibit 1) from one Harie Kinosthe Ndungu (PW8).
11. By then the applicant had already been issued with the prospecting right No. 8258 dated 15/5/2007 produced as exhibit 1(a). In PW1’s view, the application was incomplete for want of certain documents including the consent from Kwale County Council and land owner’s consent.
12. On 2/11/2007 the then Commissioner of Mines and Geology Lojomong Biwott (PW9) informed the applicant, Cortec Mining Kenya Limited, that it would be considered for a free area of approximately 1180 sq kms, excluding the Mrima Hill nature reserve. The history of how the company got the initial Special Prospecting License No. 256 (hereafter SPL 256) can be gleaned from this witness.
13. He said that he received the application for an explosive prospecting license from Anderson and Njiri Kamau to prospect for rare minerals. He advised them to get a “local person who had prospecting rights” and suggested his colleague who had been retrenched, Hanie Kinosthe Ndung'u (PW8).
14. When the application was placed before the Prospecting and Mining Licensing Committee (hereafter the PMLC Committee) on 17/9/07 it was deferred for want of land owner consent and consent from Kwale County Council. Those documents were subsequently availed and he advised the applicants that they would be considered for an area of approximately 1180 square kms excluding Mrima Hills which was a nature reserve. Following the publication of the relevant notice in the Kenya Gazette on 30/11/07, and there being no objection, the special prospecting license No. 256 (exhibit 3) was issued on 4/4/08 for a period of two years.
15. PW1 said the prospecting license was renewed twice. The renewal for an additional 3 years was made by the appellant who was then then the acting Commissioner of Mines and Geology (exhibit 4).
16. On 24/9/12 the appellant wrote to the company informing it that its special license No. 256 covering the Mrima Hill area of Kwale County stood revoked unless they showed cause within 21 days. The reason was that it had come to the knowledge of the Department of Mines and Geology that the company continued to trade with the license through issuance of shares to third parties without the written consent of the Commissioner as required by section 21(1) of the Mining Act (2012).
17. Following a letter from the company’s lawyers attaching a list of shareholders or directors, the appellant suspended any punitive action pending further investigation.
18. PW1 said that on 7/3/13 the appellant issued the Special Mining License No. 351 for Loninga which reduced the mining area within the initial Special Prospecting License No. 256. PW1 added that under the Mining Act (2012) there was no license known as Special Mining License and hence there was no way of knowing what documentation was required. PW2 declined to witness the license; the appellant then asked his secretary (PW5) to witness it. He added that the Special Mining License No. 351 was revoked by the cabinet secretary on 5/8/2013.
19. Raymond Mutie Mutiso (PW2), was the Chief Superintendent Inspector of Mines. By dint of the office, he was a member of PMLC committee. The committee's meeting held on 31/1/13, found that the Special Prospecting License No. 256 was irregular and recommended that it be revoked subject to consultations with the Head of Public Service.
20. That version was reiterated by Gideon Kiptoo Melly (PW3), a Senior Superintendent Inspector of mines, and who recorded the minutes. It was reinforced by David Irungu Murobi (PW7) who also attended the meeting. The latter was now stationed at Madini House as Inspector of Mines. According to PW2, PW3 and PW7, the licence was later revoked by Hon. Najib Balala, the Cabinet Secretary in the newly created Ministry of Mining.
21. On 6/3/13 the appellant called PW1 and PW2 and informed them he intended to grant the Special Mining License to the company. PW2 advised him that the Act did not provide for such a license and only provided for a Mining Lease or Special Mining Lease, the latter under section 55 for a term of 5 to 21 years and the former under section 39 for a term of up to 5 years.
22. He added that the Special Prospecting License No. 256, the platform upon which the current application was made, was to be revoked and the decision had not been rescinded. He and PWI thus advised the appellant against issuing the special license for 21 years under section 17. That nevertheless the accused went ahead and prepared the special mining licence. When PW2 declined to witness it, the appellant instructed his secretary (PW5) to do so.
23. Agnes Wanjiku Wamburo (PW5) was the secretary in the office of Commissioner of Mines and Geology. Her duties included typing and witnessing execution of licences. On 7/3/13 she signed the Special Prospecting License No. 251 as a witness after the appellant had executed and sealed it.
24. Like I stated, PW8 was Harie Kinosthe Ndung’u. In early 2010, he was approached by one Robert Mathew to secure a mining licence for a company, Kingdom Minerals, which later rebranded to Cortec Mining Kenya Limited. From that stage he dealt with one David Anderson, the Managing Director.
25. PW8 paid Kshs. 2,000 to the Commissioner, procured the consent of Kwale County Council and secured the prospecting rights. He claimed that acting on behalf of the company, he applied for a prospecting license and the special license No. 256 which was granted on 4/4/08 for a period of two years. He was emphatic that the company did not regularise the paper work which PW8 had done in his individual name.
26. Dickson Munene Njora (PW6) was the Principal Compliance and Enforcement Officer at the National Environmental Management Authority (NEMA). On 16/6/12 he attended a public hearing for the company’s proposed mining project. Thereafter, NEMA issued conditions for approval of EIA license Reference NEMA/PR/5/2/794 dated 8/7/13. He said that the conditions were not met and that when SML351 was revoked the said conditions became null and void.
27. When the appellant was placed on his defence, he testified that in 2008, and at the time SPL 256 was issued, he was a Provincial Geologist based at Nakuru. He was appointed Acting Commissioner of Mines and Geology on 17/8/2010 and confirmed to the position on 23/5/12.
28. He said the company completed prospecting and exploration during his tenure as Commissioner of Mines and Geology and applied for the mining lease via the application (Defence exhibit 15). He granted the licence under section 17 of the Mining Act on 7/3/2013. He added that although the company had not been granted an EIA certificate, the mining license was conditional, and required it to carry out the EIA before commencing mining.
29. In his view, section 58(1) of the EMCA envisaged “mutual approvals and licenses by other authorities in force in Kenya” which informed the grant of the licence and “bearing in mind that actual mining was not to commence before compliance with that condition”. His interpretation was that there was no conflict between section 17(2)(b) and 3 of the Mining Act (2012) and section 58 of EMCA.
30. He made an explosive allegation that while in a meeting with a representative of the company, he called the Cabinet Secretary, Hon. Najib Balala, who demanded a bribe of Kshs. 80 million in default of which the license would be cancelled. On 25/7/13 the Permanent Secretary in the ministry asked the accused to prepare a brief on all the mining licenses that had been issued since January 2013. He later learnt that the Cabinet Secretary had announced his interdiction at a press conference.
31. He testified that section 11 of the Mining Act (2012) protected him against civil and criminal proceedings. He added that the Public Service Commission did not support his interdiction and reinstated him by the letter produced as exhibit 30.
32. Like I stated, his sole witness was Ali Daud Mohammed (DW2) and who fully adopted his written witness statement (Def. exhibit 41). He is a former Permanent Secretary in the then Ministry of Environment and Mineral Resources. In a letter dated 16/3/2013 (Def.exh3) addressed to the director NEMA, he opined that the position taken by NEMA “goes contrary to Government position and has no environmental justification whatsoever”.
33. I will move straight to the crux of this appeal: The submissions by learned counsel for the appellant both at the lower court and in this appeal is four-pronged: Firstly, that the Commissioner had the power and final discretion to grant Special Mining Licence No. 351. Secondly, that SML 351 met all the legal requirements; or, that the EIA could be procured before commencement of the actual mining. Thirdly, that a reading of section 17 of the Mining Act (2012) mirrored against section 58 of EMCA showed that the EIA licence was not a condition precedent; and, that Regulation 4(2) of the Environmental (Impact Assessment and Audit) Regulations, 2003 were subservient to the two statutes. Fourthly, that the entire prosecution was a vindictive witch hunt by the line cabinet secretary.
34. It is gainsaid that the appellant was the Commissioner of Mines and Geology; and, that under the Mining Act (2012), he had final authority and power to grant prospecting licenses. I also agree that the recommendations of the Prospecting and Mining Licensing Committee (hereafter the PMLC Committee) were not necessarily binding on him.
35. The key consideration is whether he abused that power by issuing the company with Special Mining Licence No. 351. Paraphrased, had the company met all conditions precedent? In short, his discretion could not operate in a complete vacuum. Despite his immense power, he could not just wake up one morning and grant such an impactful licence. This is particularly so in light of articles 60 and 61 of the Constitution that I will discuss shortly.
36. From the uncontroverted evidence of PW1, PW2 and PW3 I find that there was a clear chain of processes: Once an application was lodged, it would be placed before the Commissioner of Mines and Geology, who would mark it to the head of mines section and who would in turn mark it to the Inspector of Mines who in turn would peruse it for completeness and send the file to the registry. For mining applications, there would be verification on the ground to ascertain the land area and suitability for mineral extraction.
37. The company’s initial application SPL No. 256 lacked key documentation: They included the consent of Kwale County Council and that of the land owner. It is thus not surprising that on 17/10/07, the PMLC Committee deferred the application to give the applicant time to avail the missing documents.
38. Although PW2 testified that PW8 obtained the consent of Kwale County Council on his own, the Commissioner (appellant) produced a copy of the consent showing that PW8 submitted the application for an exclusive prospecting license as an agent for Cortec Mining Company. But the problem is that the certificate of incorporation (MFI 11A) shows the company was incorporated on 4th July 2007 two months after PW8 had paid for the consent.
39. That is why PW2 insisted that the Special Prospecting License No. 256 issued to Cortec Mining Company Limited was irregular and it was resolved to revoke it.
40. In the meantime, the earlier special license No. 256 became a big boon to the company and it traded with the license by issuing lucrative shares to third parties without the written consent of the Commissioner required by section 21(1) of the Mining Act. On 24/9/12 the appellant wrote to Cortec informing it that its special prospecting license No. 256 covering the Mrima Hill area of Kwale County was now revoked for a period of 21 days. The company’s lawyers refuted those allegations and the suspension was lifted.
41. I stated earlier that Harie Kinosthe Ndung'u (PW8) had an axe to grind with the company. I took his evidence with caution because he blamed the company for reneging on its promise to grant him shares and for giving his job away to expatriates. My fears were reinforced because he wrote to the Commissioner sometime in December 2012 seeking that the license be cancelled.
42. That said, the fact remains that in early 2010, he was approached by one Robert Mathew to secure a mining licence for a company, Kingdom Minerals, which later rebranded to Cortec Mining Kenya Limited. The company never regularized the earlier paperwork to PW8. So much so that the “application” now before the appellant for a special mining licence was founded on the original documents presented by PW8 on 22/5/07 on behalf of the company using the prospecting right granted to him as an individual. Furthermore, the company had applied for a special mining lease under section 55 of the Act in 2012.
43. I am alive that when the appellant was placed on his defence, he produced a copy of the consent showing that PW8 submitted the application for an exclusive prospecting license as an agent for Cortec Mining Company. As I observed, the problem is that the certificate of incorporation (MFI 11A) shows that the company was incorporated on 4th July 2007 two months after PW8 had paid for the consent.
44. Additionally, the Environmental Impact Assessment (hereafter EIA) was missing. As late as 26th March 2013, PS Ali Mohamed (DW2) was still piling pressure on NEMA to approve the EIA. Furthermore, both PW1 and PW2 expressed doubts whether the Mining Act (2012) provided for a Special Mining Licence.
45. My reading of the applicable Mining Act (which has since been amended in 2016) shows there were only two types of licences in the case, a position confirmed by PW1, PW2 and PW3: Mining Lease for 5 to 21 years under section 55 or Special Mining Lease under section 39 for 5 years. But I am alive that under section 17 (2) (b) special licences could be granted for areas that were previously closed but now re-opened by notice in the Gazette. In that case an exclusive prospecting licence could be issued under section 18.
46. But it seems to me that the appellant was determined to go ahead notwithstanding that Cortec Mining had not applied for such a license anyway. I say so because in 2012, the company had applied for a special mining lease under section 55 of the Act but which seems to have been declined. On 6/3/13 the appellant informed PW1 and PW2 that he was going to issue a special Mining Licence anyway. It is then not surprising that on 7th March 2013, PW2 declined to witness the execution of the licence.
47. The appellant had to turn to his secretary, Agnes Wanjiku Wamburo (PW5). There was nothing wrong with her attestation. But it seriously worries me that the appellant intended, and proceeded to issue a Special Mining Licence which was foreign to the statute for a term of 21 years, at an annual fee of only Kshs 500,000 and in the absence of a mandatory EIA certificate.
48. The company’s licence entitled it to mine niobium and rare earths for a fixed royalty of 3% and 5% respectively. I disagree with the appellant that no prior EIA licence was required for this kind of huge undertaking. I am fortified by the express provisions in the Second Schedule of the EMCA. I find that the grant of the special mining licence for such a gigantic project encompassing Mrima Hills, which was gazetted as a forest or nature reserve was highly irregular and unlawful.
49. Section 58 (1) as read with 58 (2) of the EMCA provides as follows-
(1) Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.
(2) The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.
50. Regulation 4(2) of the Environmental (Impact Assessment and Audit) Regulations, 2003 (hereafter the Regulations) on the other hand provide that no licensing authority “shall issue a licence for any project for which an environmental impact assessment is required…unless the applicant produces to the licensing authority a licence of environmental impact assessment”.
51. Needless to say, the Regulations under EMCA are subservient to the statute. I have weighed section 58 of EMCA above against section 17 of the Mining Act (2012). The appellant's submission that there is no conflict between section 17 of the Act and section 58 of EMCA is difficult to sustain. The colonial fiat under sections 11 and 17 of the old Mining Act must now be tempered by EMCA and brought into conformity with the Constitution. The Sixth Schedule, Rule 7 of the Constitution is emphatic on that point.
52. In this case there was no authorisation to the proponent to forego the submission of the EIA study. I am also fortified in that finding because the former Commissioner of Mines and Geology Lojomong Biwott (PW9) was clear in his evidence in chief that granted the nature of the intended mining and area in question, an EIA was a must before the grant of the license. There is also authority from the Court of Appeal in Cortec Mining Kenya Limited v The Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR. That also answers grounds 3 to 4 of the petition.
53. So, was the appellant acting in good faith or entitled to enjoy the indemnity under section 11 of the Mining Act? My answers are negative. That provision only bars any civil or criminal proceeding against the Commissioner for anything done in “good faith in execution of his duty”. He raised the issue at the trial court through Def. Exh. 22 (pp.436–442, Vol. I) and Def. Exh. 32 (pp.490–500, Vol. I and pp.1–7, Vol. II) as well as his written submissions. As I will discuss shortly, the appellant was well aware that the application by the company was defective but went full steam to grant it.
54. The appellant may have drawn some comfort from the positive reviews and attention that the project generated within the political class over the years; and, the 81 legal and technical documents he had reviewed before issuing SML 351 (Def. Ex. 31, pp.488–489, Vol. I). Furthermore, the Permanent Secretary wrote three weeks later that SML 351 was in furtherance of national policy. The Public Service Commission had also reinstated the appellant and restored his salary.
55. The learned trial magistrate did not make specific reference to section 11 of the Act. My considered view is that on the totality of the prosecution’s case, the appellant did not act in good faith and could not then benefit from the protection of section 11 of the Act. He was moving against the tide of solid advice of the PMLC committee including that of PW1 and PW2. Of course, it was not binding. But he was prepared to grant an unknown Special Mining License under section 17 contrary to the provisions providing for a Mining Lease for 5 to 21 years under section 55 or for 5 years under section 39. Furthermore, there was recommendations to revoke SPL No. 256 which was the foundation for the SPL 351.
56. He did not seem to have regard for the fact that a long-term license of 21 years for a project of this magnitude required an EIA license. He knew or ought to have known from his long employment in the sector, that Mrima Hill was gazetted as a forest or nature reserve, and for which consent of Kwale County was required.
57. The application itself was founded on the initial SPL 256 which had gaps I dealt with earlier. More importantly, SPL 256, the platform upon which the special mining licence was founded, was to be revoked and the decision had not been rescinded. Even more disturbing was that Cortec had not formally applied for a special mining licence. But the appellant told PW1 and PW2 that he would go ahead anyway. He was a man in a hurry at a time of political transition; the general election having just taken place. Taken together, all these events point to a clandestine or ulterior motive. I thus find mens rea for abuse of his office was proved to the required standard.
58. I stated at earlier that this is a first appeal which places me squarely in the shoes of the trial court. It is not lost on me that the appellant was a public officer on the material date of 7th March 2013. Under articles 60 and 61 of the Constitution, all minerals and mineral oils as defined by law are public land. The appellant, in conduct of his office, was required to act in the public interest and adhere to the national values and principles of governance in article 10.
59. On the totality of the prosecution evidence and my analysis of the law and procedures, I readily find that the applicant intentionally acted arbitrarily to the prejudice of the republic and hence abused his office when he granted the company the so-called Special Mining Licence on 7th March 2013. It was a long-term license spanning 21 years for 142.159 hectares of land at Mrima Hills, which was gazetted as a forest or nature reserve and without the required Environmental Impact Assessment Licence. When combined with what I stated in paragraphs 52, 53, 55, 56 and 57 of this judgment, I find that he had a clear criminal intent and which fully unites with the actus reus for this offence.
60. That finding is sufficient to dispose of this appeal. But to be fair to all the parties and the detailed submissions made in this matter, I will briefly address the other aspects of this appeal.
61. I will deal with grounds 1 – 2, 6, 7 and 8 of the appeal together. Firstly, the appellant's case is that his rights to a fair trial were violated. He is aggrieved by the trial court’s reliance on exhibits 17 and 18: the Kenya Chamber of Mines (A letter authored by Adiel Gitari at p.342, Vol. I) and the then Cabinet Secretary's (Najib Balala’s) complaint letter at (pp.343–344, Vol. I), which all triggered the investigation in this case.
62. In view of the fact that none of the two recorded a statement or testified (a fact freely admitted by PW10), I find that the evidence constituted hearsay and was not properly admitted under the Evidence Act. It was thus a misdirection by the learned trial magistrate to make extensive references to the two documents as the basis for the investigations. See generally R v Githunguri [1986] KLR 223.
63. The better course would have been to state that according to the investigating officer (PW10), the investigations were triggered by a complaint from those two persons in the letters already marked for identification.
64. Before I leave the matter, I find that the evidence of PW10, who merely gave a summary of what the investigators and the DPP did before charging the accused, was not pivotal to the conviction. He did not carry out any independent investigations beyond recording witness statements and forwarding the file to the DPP for action. The point to be made is that investigative shortcomings of this kind do not, without more, found a ground to quash the conviction.
65. Furthermore, the conviction by the lower court was not based on those two letters. Rather it was founded on the evidence of other key witnesses who took to the stand. Paraphrased, with or without those letters, and as I have already concluded earlier, the conviction was well founded in this case.
66. The broader claim that the trial court operated a wholesale “double standard”, admitting the prosecution's hearsay while rejecting some eighty pages of defence material on an identical objection, is not fully made out. The typed ruling on the objection to production of the defence's DMFIs at pp.163–169 of the record shows a considerably more differentiated exercise than the appellant's submissions suggest.
67. For instance, DMFIs 1, 4, 5, 6, 8, 12, 12(a), 12(b), 15, 22, 27, 29 and 30 were admitted, principally because their provenance was undisputed or because they had come from the prosecution itself during pre-trial. DMFIs 1(a)–1(b), 7, 9, 10(a)–10(b), 11, 14, 17(a)–17(b), 18, 19(a)–19(c), 20, 20A–20B, 21, 23–25, 26, 28 and 31 were declined as uncertified photocopies, unsigned or undated documents, material not authored or addressed to the appellant, or, for photographs and electronic material, for want of the certificate required under sections 78 and 106B of the Evidence Act.
68. I find that the learned trial magistrate made a reasoned, document-by-document application of ordinary authentication rules. Fundamentally, I would be hard pressed to say she displayed outright bias or that the appellant was denied a fair trial enshrined in articles 25 and 50 of the Constitution.
69. The appellant is aggrieved that the learned trial magistrate did not analyse the evidence of PW8 and PW9. A judgment is a summary and cannot possibly analyse every detail of each witness’s testimony. In this case, the trial court gave a detailed summary of the evidence of all the 10 witnesses for the prosecution and the two defence witnesses in the first nine pages of the typed judgment (pp 213-222 Vol. I) of the record. What follows after that is the analysis by the learned trial magistrate of the key and material evidence to the charge.
70. It is true for example, that PW9, the appellant's own predecessor as Commissioner of Mines and Geology, said in cross-examination that section 17 of the Mining Act and section 58 of EMCA permitted exactly what the appellant did, and that section 58 prevailed over the subsidiary Regulations. He was fully entitled to that opinion. But I have already made a finding on this issue.
71. The learned trial magistrate accepted in her judgment (page 228 Vol I) that issuing licences was the preserve of the appellant. However, the licence in this case required an Environment Impact Assessment certificate as a condition precedent. She went further to cite the applicable precedent from the Court of Appeal in Cortec Mining Kenya Limited versus The Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR and adapted in the ICSID case No. ARB/15/29 Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited (claimants) and Republic of Kenya (Respondent)
72. I fully concur with those findings. The truth, as I have discussed earlier in this judgmen
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