Kenyan Case Law

These are decided Kenyan Cases on extractives.

Case Law Status Subject Decision Link

Peter Makau Musyoka & 19 others (Mui Coal Basin Local Community) vs  Permanent Secretary Ministry of Energy & 14 others [2014] eKLR

Decided

Public participation, coal exploration at the Mui Basin in Kitui County

This matter relates to two Constitutional Petitions respecting the prospecting for and extraction of coal deposits in the Mui Basin in Kitui County.  The first Petition was initially brought by six members of the Mui Coal Basin Land Community on their own behalf and that of other members of the Mui Community. The petitioners sought relief the Community they represent based on five main grounds including Alleged contravention of Article 10 of the Constitution in the award of the tender to explore, exploit, or develop the Mui Coal Basin Blocks C and D. They alleged that the award was done in secrecy, and in a manner devoid of public participation as envisaged in the Constitution. The court found that the public participation program designed for the Coal Mining Project met the threshold for purposes of public participation subject to continuing engagement with the public. It also noted the difficulty is assessing whether there was adequate public participation.

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Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others Environment and Land Case 195 of 2014

Decided

  • Public Interest,
  • Judicial review,
  • Issuance of mining licenses.

On the 5th day of August 2013 the Cabinet Secretary for mining made a public announcement on the media purporting to revoke the Cortec’s Special (Mining) License. Cortec Mining then sought orders to have the orders of the cabinet secretary quashed. The Court held that the Minister was right and was entitled to act in the manner he did in public interest once he was satisfied the Commissioner of Mines had in issuing the license to the Applicant acted in violation of the law. This was because under section 4 of the Mining Act minerals are vested in the Government and as such should be dealt with as a national resource for the benefit of all.

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Pasred Youth Group/Forum & other petitioners as named in the schedule annexed   v   Attorney General  & 5 others [2015] eKLR

 

Decided

  • The right to participate in cultural life under Article 44 of the Constitution
  • Right to information held by the State under Article 35 of the Constitution
  • Issues relating to rights of persons living in Community Land as defined in Article 63 of the Constitution

The Petitioners alleged that sometime in November 2014, it came to their attention that unknown persons had set up camp in Ahagdera area within Fafi Sub-County and later, they discovered that the said persons were on an oil exploration mission.  They further alleged that the said mission was undertaken without the local community’s participation and/or consent. They pointed out whereas the Community Land Bill, 2014 is yet to be passed into law, it has outlined comprehensive steps to protect Community Land and in any event, the Trust Land Act is still in force and the land in question is held in trust for the persons who ordinarily reside in it.  That therefore any activities on that land must receive their consent. They sought orders compelling the respondents to stop the exercise until their case was fully heard. The Court held that the Petitioners had established that they had a lawful interest in the land in question. Their claims of environmental degradation were arguable as they had not been supported by sufficient evidence and since NEMA had given all the necessary licenses to Camac Energy (K) Limited no red flag had been raised. The Court also found that there was doubt as to the authenticity of the claim that the land in question is used for religious and cultural ceremonies.  This is because the nature of the ceremonies had not been stated and the bare statement to that effect was not sufficient. The court held that adequate public participation had occurred.

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Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

Final Submissions filled on a preliminary objection filed by Kenya, challenging the Jurisdiction of the court. Ruling to be granted on the 30th of January, 2017

Maritime, boarder, offshore oil and gas exploration

Somalia sued Kenya in August 2014 before the ICJ seeking a determination of the actual flow of a sea boundary between the two countries. Mogadishu wants the Court to help determine whether the borderline should flow eastwards as demanded by Kenya or diagonally to the south from the land border. Kenya filed a preliminary objection, stating that Somalia did not adhere to the terms of the agreement to have the matter negotiated out of court. The Court retreated to deliberate on the issue. Pending final determination of the Preliminary Objection

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African Commission on Human and People's Rights Vs The Republic of Kenya

Decided

The right;

  • To life
  • To property
  • to natural resources,
  • development,
  • religion and
  • culture 

This case is of fundamental importance for indigenous peoples in Africa, and particularly in the context of the continent-wide conflicts seen between communities, sparked by pressures over land and resources. Ultimately the Court ruled on the crucial role of indigenous peoples in the conservation of land and natural resources, and consequently, the mitigation of climate change in a region currently ravaged by drought and famine.

The Ogiek, whom were the victims in this landmark case, live in the Mau Forest Complex in the Rift Valley of Kenya. They are one of the last remaining forest-dwelling communities and among the most marginalized indigenous peoples in Kenya. They alleged violations to their rights by the Kenyan government under the African Charter on Human and Peoples’ Rights, to which Kenya is a signatory

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