Introduction
1. The Petitioners herein, instituted this suit/petition seeking judgment against the Respondents for among other orders, a declaration that the 1st and the 2nd Respondents have illegally set up a mine on community land.
2. The Petitioners inter alia complain that the 1st and 2nd Respondents purportedly entered into a memorandum of understanding for diatomite mining on community land without any prior authorization or following the due process of setting up mining activities on community land.
3. The Petitioners also accuse the 1st Respondent of disregarding her mandate of holding unregistered community land in trust of the community until it is registered and for having allowed the 2nd Respondent to establish and run a mining site in unregistered community land without participation and involvement of the affected community.
4. Simultaneously with the petition, the Petitioners filed the notice of motion dated 30th October, 2024 seeking to restrain the impugned dealings of the Respondents pending the hearing and determination of the petition.
5. The application is supported by the joint affidavit of the Petitioners, sworn on 3rd October, 2024 in which the averments/contentions in the petition are reiterated.
6. The 1st and 2nd Respondents filed responses to the petition and the application. The responses were filed on 4th December 2024 and 11th December 2024 respectively.
7. Through the responses, the 1st and the 2nd Respondents deny having breached the law and/or violated the rights of the Petitioners in carrying out the impugned activities.
8. In a rejoinder, the Petitioners filed a further affidavit, sworn by Cyrus Saramei on 18th December, 2024; (the deponent is not listed as one of the Petitioners or persons authorized to plead on behalf of the Petitioners). For that reason, I disregard his affidavit as it offends the law on filing of representative suits.
9. Pursuant to directions given on 19th December, 2024 the application was disposed of by way of written submissions.
Petitioners’ submissions
10. In their submissions filed on 6th January 2025, the Petitioners have identified two issues for the court’s determination. These are; whether there was adequate public participation and whether the 2nd Respondent operates an illegal mine on the community land in question.
11. For reasons to be stated in the course of this ruling, I will only address myself to the question as to whether the 2nd Respondent is operating an illegal mine on the community land. Regarding that issue, the Petitioners have submitted as follows: -
“The 1st and 2nd respondents allowed and/or permitted the operation of illegal mines on the community land for the following reasons: -
a) By a letter dated 31st May 2023, the Ministry of Mining, Blue Economy & Maritime affairs, issued a sanction of illegal mining operations by County governments permitting mining of minerals in their respective Counties which was a preserve of the Cabinet Secretary in charge of mining.
b) This notice has never been challenged
c) By another letter dated 18th September 2023, the 2nd respondent was issued with a notice for stoppage of illegal and unregulated mining operation contrary to Section 201 of the Mining Act No.12 of 2016, from the Ministry of Mining, Blue Economy & Maritime Affairs.
d) In total disregard of the notices, the 2nd respondent has proceeded to continue with the mining process despite the sanction; and
e) The Petitioners have further established that the lease agreement and the MOU was signed contrary to Section 15(5) of the Community Land Act.
12. Based on the decision in the case of Board of Trustees National Social Security Fund vs. Michael Mwaloi (2015)e KLR where the Court of Appeal cited with approval the decision in Makula International Ltd vs. His Eminance Cardinal Nsubuga & another (1982) HCB 11 thus: - “A court of law cannot sanction what is illegal, an illegality once brought to the attention of the court overrides all questions of pleadings, including any admission made thereon”, the Petitioners urge the court to allow the application for conservatory orders pending the hearing and determination of the petition.
1st Respondent’s submissions
13. In her submissions filed on 22nd January 2025, the 1st Respondent submits that the Petitioners have not made up a case for being granted the orders sought because all statutory requirements were fully met before the approval, licensing, leasing and commencing the impugned mining operations. According to the 1st Respondent, the application and the petition are based on misinformation, are an afterthought and meant to derail the progress made to the benefit of a few and not for greater public good of the community at large.
14. The 1st Respondent submits that there was inordinate, unexplained delay in bringing the petition and that the Petitioners have not demonstrated that their rights have been infringed.
15. According to the 1st Respondent, no prima facie case with probability of success has been demonstrated by the Petitioners to warrant granting the orders sought.
16. As to whether the Applicant’s will suffer irreparable loss if the orders sought are not granted, the 1st Respondent reiterates her submission that the Petitioners have not demonstrated any injury that the impugned activities have caused to warrant the impugned activities being stopped.
17. It is the 1st Respondent’s case, that she will suffer irreparable loss if the orders sought are granted in that it will lose the income (revenue) generated from the impugned activity. It may also face suits arising from closure of the mines.
18. The 1st Respondent further submits that the community will also suffer as the persons employed in the mines will lose jobs.
19. Terming the Petitioner’s claim that the impugned activities are illegal a desperate attempt to mislead the court, the 1st Respondent maintains her contention that the law was complied with in issuance of the mining license.
20. In view of the foregoing, the 1st Respondent submits that the balance of convenience tilts in favour of the Respondents.
2nd Respondent’s submissions
21. In its submissions dated 22nd December 2024, the 2nd Respondent submits that the Petitioners have not proved that they are entitled to the suit land; that the Petitioners interest to the suit land is through the 1st Respondent who holds the land (unregistered land) as a trustee for the community and that the Petitioners/Applicants have not explained what pre-authorization were needed.
22. The 2nd Respondent further submits that the Applicants have not demonstrated what authorities did not clear the 2nd respondent to carry out the impugned mining activities and that the Petitioners have not demonstrated what the land in question was being used for.
23. In a nutshell, it is the 2nd Respondent’s case that the Petitioners have not made up a case for being granted the orders sought and that granting the orders sought would be prejudicial to the Respondents and the community at large.
Analysis and determination
24. As pointed out herein above, the petition and the application for conservatory reliefs herein raises issues of both law and fact. One of the issues raised in the petition and the application is whether in engaging in the impugned dealings/activities, the Respondents complied with the applicable law and procedures.
25. According to the Petitioners, the respondents did not adhere to the applicable laws and procedures.
26. The 1st and the 2nd Respondents, through their responses to the petition and the submissions, contend that they complied with all the applicable laws and procedures. To prove that fact, they have annexed several documents detailing what they did in compliance with the applicable laws and procedures.
27. The subject matter of this suit/petition is granting of mining rights to the 2nd Respondent over unregistered community land. That being the case, the laws applicable to the dispute, both in terms of substance and procedure are the Community Land Act, 2016 and the Mining Act, 2016. In particular, the sections of those Acts regarding management and administration of unregistered community land.
28. Section 6 of the Community Land Act, 2016 provides/gives the role of County governments regarding community land. In that regard, the section provides; -
“6(1) County governments shall hold trust land in trust all unregistered community land on behalf of the communities for which it is held.
2. the respective county government shall hold in trust for a community any monies payable for compulsory acquisition of any unregistered community land.
3. …...
4…….
5…….
6. Any transaction in relation to unregistered community land shall be in accordance with the provisions of this Act and any other applicable law
7….
8. a County Government shall not sell, dispose, transfer, convert for private purposes or in any other way dispose of any unregistered land that it is holding in trust on behalf of the communities for which it is held.”
29. Section 6(8) of the Community Land Act, prohibits County governments from selling, disposing, transferring, converting for private purposes or any other way disposing of any unregistered community land it is holding on behalf of the communities for which it is held.
30. Section 6(6) of the Community Land Act, on the other hand, requires that any transaction in relation with unregistered community land within a County be done or carried out in accordance with the Act and any other applicable law.
31. In the circumstances of this case, where the impugned dealing concerns granting of mining rights to the 2nd Respondent over unregistered Community Land, the Respondents were under a legal duty to comply with the provisions of Section 38(1) of the Mining Act, 2016, which provides: -
“38(1) Prospecting and mining rights shall not be granted under this Act or any other written law over community land without the consent of: -
a….
b. The National Land Commission in relation to community land that is unregistered.”
32. It is clear from the above cited provision of the law, that the consent of the National Land Commission is mandatory before prospecting and/or mining rights can be issued in respect of unregistered community land.
33. In the circumstances of this case, whilst the Respondents claim that they complied with all laws applicable in undertaking the impugned dealings with the suit land, which land is unregistered community land, there is no indication or even mention of involvement of the National Land Commission in the process that culminated in issuance of mining rights to the 2nd Respondent.
34. Arising from the foregoing provisions of the law, which based on the material/evidence presented before this court appear to have been violated by the Respondents, I am satisfied that the Petitioners/Applicants have established a prima facie case with high probability of success.
35. Although the Respondents may suffer loss and prejudice arising out of grant of the orders sought, having determined that the Respondents may not have not complied with the law in entering into the impugned activities, it would be against public policy to allow the 2nd Respondent to continue with the impugned activities pending the hearing and determination of the petition.
36. The upshot of the foregoing is that the Petitioners /Applicants have made a case for being granted the orders sought in the notice of motion dated 30th October 2024 which orders I hereby grant them in terms of prayer 4, 5 and 6.
37. Orders accordingly.
Dated, signed and delivered, at Kabarnet this 20th day of February 2025.
Ruling read virtually in the presence of:
Mr. Kirui for the Petitioners/Applicants
Ms. Koimugul for the 1st Respondent
Mr. Matoke for the 2nd Respondent
N/A for the 3rd Respondent
Ian: Court Assistant