[2021] KECA 175 (KLR)

Basu Mining Limited v Commissioner of Mines & another; Cortec Mining Kenya Limited & 5 others (Interested parties) (Civil Appeal 187 of 2016) [2021] KECA 175 (KLR) (Environment and Land) (5 November 2021) (Judgment)

Neutral citation number: [2021] KECA 175 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal 187 of 2016

HM Okwengu, F Sichale & S ole Kantai, JJA

November 5, 2021

Between

Basu Mining Limited

Appellant

and

Commissioner of Mines

1st Respondent

The Attorney General

2nd Respondent

and

Cortec Mining Kenya Limited

Interested party

Cabinet Secretary, Ministry of Mining

Interested party

national Environment Authority

Interested party

Kenya Forest Service

Interested party

National Museums of Kenya

Interested party

County Government of Kwale

Interested party

(Being an appeal from the judgment of the Environment and Land Court of Kenya at Nairobi (Mutungi J) dated 20th March, 2015) IN (Nairobi Milimani ELC MISC APPL NO. 359 of 2014 (Formerly MISC APPL NO. 331 of 2013 J/R))

Judgment

1. On 24 th March 2015, Basu Mining Limited filed an appeal against the judgment of Mutungi J dated 20th March 2015.

2. The appeal stems from judicial review proceedings that had initially been filed at Milimani Law Courts Judicial Review Division on 23rd September 2013, in which the appellant had sought inter alia, orders of Certiorari to issue to remove and bring before the honourable court for purposes of quashing any proceedings, authority, decision and or order of the 1st respondent and or their officers, servants, agents, subordinates and or employees granting and or issuing the special mining licence No. 351 issued to Cortec Mining Kenya Limited (the 1st interested party herein).

3. The matter was heard by Mutungi J who in a judgment delivered on 20th March, 2015, dismissed the same holding inter alia that:"the applicant’s application for declaratory orders within the present judicial review proceedings was incompetent and could not be granted.”

4. The appellant was aggrieved with the findings of the learned judge and in a memorandum of appeal dated 28th** July, 2016, it listed 10 grounds of appeal faulting the learned judge for holding that the ex-parte applicant and the other parties did not address the court on judicial review issues; for treating prayers (a), (b), (c) and (d) of the notice of motion as having been abandoned by the applicant; failing to give effect to the consent judgment entered into between the parties; failing to make a determination with regards to the issues arising from and the prayers (a),(b),(c) and (d) sought in the suit; failing to arrive at a determination of the appellant’s leasehold and the validity thereof based on the pleadings and the evidence placed before the court and in construing that failure as against the appellant and to its prejudice; failing to apprehend that the judge was sitting, and could only sit as a judge of the Environment and Land Court and not as a judge of the High Court in the judicial review division; failing to apprehend that as a judge of the Environment and Land Court, he was and could only hear the matter in view of his jurisdiction as a land court hearing a land case; failing to take into consideration the fact that the parties, with the consent of the court had waived the process of viva voce evidence and had instead opted to rely on affidavit evidence filed on record and based upon which the court ought to have arrived at a determination on all matters before it both of law and fact and finally, failed in dismissing the appellant’s prayers with costs to the respondents.

5. The brief facts in this appeal are as follows: the appellant’s case was that it was the registered owner of the land the subject matter of the special mining license No. 351 by virtue of a 33 year grant of lease issued to them by the County Council of Kwale (the 6th interested party). The appellant further contended that the 1st respondent’s actions and any alleged powers he purports to exercise under the Mining Act, Cap 306 of the Laws of Kenya and the Mining Act itself or the provisions thereof are in contravention of the applicant’s guaranteed rights under Article 40 as read with Articles 258, 259 and 260 of the Constitution and that the provisions of the Mining Act, Cap 306 under which such authority is alleged to be exercised is null and void to the extent of such inconsistency.

6. It was submitted for the appellant that contrary to the learned judge’s holding, the appellant and the other parties did address the court on the judicial review issues and that the learned judge erred in holding that they had not done so and that the fact of the matter was that not only were judicial review issues pleaded, but they were submitted on in writing, the submissions were relied on and the court was addressed on the same and even informed that a consent had been arrived at between the parties in relation to the very same judicial review issues that the learned judge proceeded to ignore.

7. It was argued that there was no justification in law why the learned judge failed, refused and or neglected to record or give effect to the consent judgment entered into between the appellant, the 1st respondent, the 2nd respondent and the 2nd interested party; that the learned judge erred in law in failing to arrive at a determination of the appellant’s leasehold and the validity thereof, based on the pleadings and evidence placed before him; and that the learned judge misdirected himself and erred when he held that the appellant ought to have led viva voce evidence when no party had asked for the same nor did the court on its own motion.

8. Finally, it was submitted that the learned judge erred in failing to apprehend that he was sitting and could only sit as a judge of the Environment and Land Court and not as a judge of the High Court in the judicial review division.

9. On the other hand, it was submitted for the respondents that the appellant’s appeal in respect to prayers (a) (b) (c) and (d) was for all intents and purposes moot because the licence to Cortec (1st interested party) did not exist and was not available for quashing and that the decision of the superior court to dismiss the judicial review application by the 1st Interested Party effectively determined the judicial review application by the appellant since there was no licence to be quashed when the minister’s decision was upheld and that as such the appeal in respect to prayers (a) (b) (c) and (d) was moot and that the superior court’s decision was correct in all respects. In addition that the appellant was essentially seeking a determination of rights over the land it claimed to have a lease over, which lease instrument was challenged and denied by the County Government of Kwale (the 6th interested party), and that the learned judge correctly held that declarations could not issue in judicial review matters and that the superior court correctly found that the quest to have section 4 of the Mining Act declared unconstitutional would require to be considered in a petition.

10. Finally, the respondents maintained that in exercising its discretion, the superior court did not misdirect itself in the matter or arrive at a wrong decision, nor was the decision as a whole clearly wrong.

11. For the 6th interested party it was submitted that the learned judge did not err in holding that the appellant did not address the court on judicial review nor err in treating prayers (a), (b), (c) and (d) of the notice of motion as having been abandoned by the appellant since on 2nd December 2014, the appellant’s advocate submitted that the consent had dealt with all the issues bordering on judicial review and therefore elected not to submit on the same; that the appellant’s submissions filed on 4th June 2014, only addressed the issues of violation of the Constitution and the Mining Act with no reference to judicial review matters; and that the appellant having indicated that the consent dispensed with all the issues on judicial review and such issues having been omitted in the submissions, it was not for the court to revive the same and make a determination.

12. With regard to whether the learned judge erred in law in failing to record and give effect to the consent judgment between the parties, the 6th Interested Party submitted that the consent was not filed and as such there was no valid consent; that the learned judge did not err in failing to arrive at a determination of the appellant’s leasehold and the validity thereof, as the notice of motion before the trial judge sought orders in the nature of judicial review aimed at quashing the decision to grant special mining licence No. 351 to the 1st respondent; and that the issue of the leasehold came at the submission stage and the submissions did not constitute evidence.

13. Finally, it was submitted that the learned judge did not err in failing to apprehend that he could only sit as a judge of the Environment and Land Court and not as a judge of the High Court in the judicial review division since under Section 13 (7) (b) of the Environment and Land Act , the Environment and Land Court has the jurisdiction to grant prerogative orders which connote judicial review orders on mining issues as was the case in this matter and that accordingly, the trial judge was within his powers to handle the matter before him like any other judge of the superior court would.

14. The appeal came up before us for plenary hearing on 23rd February 2021. Mr. Taib , learned counsel represented the appellant whilst Mr. Ogosso, learned counsel appeared for the 1st and 2nd respondents as well as the 2nd interested party.The 3rd interested party on the other hand intimated to court that they would not participate in the appeal. There was no representation for the 1st, 4th, 5th and 6th interested parties.

15. We have anxiously considered the record, the rival written submissions by the parties, the authorities relied upon and the law.The appeal before us is a first appeal. Our mandate as a first appellate court is as set out in Selle vs. Associated Motor Boat Co. of Kenya & others[1968] EA 123 wherein it was stated:"1) an appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955) 22 EACA 270”.

16. In our considered opinion, the grounds of appeal can be summarized into four main grounds of appeal as follows:"i. Whether the learned judge erred in fact in holding that the appellant and the other parties did not address the court on the judicial review issues and/or treating payers (a), (b), (c) and (d) of the notice of motion as having been abandoned by the appellant.ii. Whether the learned judge erred in law in failing to record and or give effect to the consent judgment entered into between the parties.iii. Whether the learned judge erred in law in failing to arrive at a determination of the appellant’s leasehold and the validity thereof based on the pleadings and the evidence placed before the court.iv. Whether the learned judge erred in failing to apprehend that he was sitting and could only sit as a judge of the Environment and Land Court and not as a judge of the High Court in the judicial review division”

17. With regard to the first issue and as to whether the learned judge erred in fact in holding the appellant and the other parties did not address the court on the judicial review issues and/or treating prayers (a), (b), (c) and (d) of the notice of motion as having been abandoned by the appellant: a cursory perusal of the record shows that when the parties appeared before the trial court on 2nd December 2014, Mr. Taib learned counsel for the appellant stated as follows:“We have a consent with the respondent for the grant of prayers (a), (b), (c), and (d) of the judicial review application. The consent to bind the exparte applicant, 1stand 2nd respondent and the 2ndinterested party.” (Emphasis supplied).

18. It is instructive to note that save for the appellant generally stating that they had entered into a consent with the respondent for the grant of prayers (a), (b), (c), and (d) of the judicial review application, the exact terms/ nature of the consent were not stated. At page 586 of the proceedings Mr. Taib for the appellant further intimated to court as follows:"our consent with the respondents virtually takes away all the judicial review issues What is left for the court determine is the breach of constitutional rights and the declarations sought.”(Emphasis ours)

19. From the above two passages it is evident and contrary to the appellant’s contention that the appellant did not address the court on the issues of judicial review that had been raised in the matter and the appellant was indeed categorical that: what is left for the court to determine is the breach of constitutional rights and the declarations sought”.

20. Indeed, a careful perusal of the record shows that the appellant never addressed the trial court on the judicial review issues that had been raised in the matter.

21. The trial court while rendering itself on this matter at page 5 of the judgment stated thus:"when this matter came up for highlighting of the submissions by the parties on 2nd December 2014, Mr. Taib advocate who was appearing for the exparte applicant Basu Mining Limited with Mr. Ochieng Advocate informed the court that the exparte applicant had reached a consent with the 1st and 2nd// respondent and the 2nd interested party for the grant of prayers (a). (b). (c) and (d) of the judicial review application. It is not apparent what prompted this eventuality but it is imaginable that it is because all the parties had exhaustively canvassed the judicial review aspects of the matter during the hearing of the application by Cortec Mining Kenya Ltd in ELC 195 of 2014 which was heard first and at any rate the court was going to make a determination of those issues in the judgment in that suit. Mr. Havi advocate for the 1stinterested party objected to the consent in the manner proposed by the consenting parties but the point is that the exparte applicant and the other consenting parties did not address the court on the judicial review issues. The court in the premises treats the prayers sought in the notice of motion under prayers (a), (b), (c) and (d) as having been abandoned by the applicant and will make no determination to those particular issues and prayers.”

22. In our view, the appellant having clearly and categorically intimated to court that the only issue that was left for the determination of the court was breach of constitutional rights and declaration sought, we see no reason to fault the learned trial judge for failing to make a finding on the issue of judicial review.

23. It is indeed trite law that parties are bound by their pleadings. Sir Jack Jacob in an article entitled “The Present Importance of Pleadings” published in (1960) Current Legal Problems and which article was quoted with approval by the Supreme Court of Malawi in Malawi Railways Limited v Nyasulu [1998] MWSC 3 states of the importance of pleadings:"As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

24. As was submitted by the 6th interested party and in our opinion rightly so, the appellant having indicated that the consent dispensed with all the issues on judicial review and such issues having been omitted in the submissions it was indeed not for the court to revive the same and make a determination on the same. Consequently, nothing turns on this point.

25. The next question is whether the learned judge erred in law in failing to record and or give effect to the consent judgment entered into between the parties. As we had alluded to earlier, when the matter came up for hearing on 2nd December 2014, Mr. Taib learned counsel for the appellant intimated to court that they had a consent regarding the grant of prayers (a), (b), (c), and (d) of the judicial review application and that the consent was to bind the appellant, 1st respondent, 2nd respondent and the 2nd interested party. Mr. Havi for the 1st interested party opposed the consent being made an order of the court as the same would infringe on the rights of the 1st interested party. It is imperative to note that the terms of the consent were not stated to court. It is not clear if the orders sought were being conceded or otherwise. Similarly, no written consent was filed with the court and neither did the parties request the judge to record the same for adoption by the court.

26. The Black’s Law Dictionary 10thEdition by Bryan Garner defines a consent judgment in the following terms:"a settlement that becomes a court judgment when the court sanctions it. In effect an agreed judgment is merely a contract acknowledged in open court and ordered to be recorded but it binds the parties as fully as other judgment.”

27. From the circumstances of this case, the 1st interested party having opposed the purported consent between the parties and the same having not been filed in court, it is our considered opinion that there was no valid consent judgment which the learned judge could give effect to. The learned judge having found that the proposed consent would be prejudicial to the 1st interested party, who in any event had opposed the same, it is our considered view that there was no valid consent which the court could give effect to and we have no reason to fault the trial judge’s finding on this. Consequently, nothing turns on this issue.

28. The other issue raised by the appellant is whether the learned judge erred in law in failing to arrive at a determination of the appellant’s leasehold and the validity thereof based on the pleadings and the evidence placed before the court.

29. Save for the judicial review prayers that were sought in the motion as prayers (a), (b), (c), and (d), the appellant had further sought the following orders:e)A declaration that the 1st respondent’s actions in issuing the special (mining) licence to the 1st interested party and any alleged powers to this end that he purports to exercise under the Mining Act, Cap. 306 of the Laws of Kenya, which have resulted in or may result in the ex-parte applicant’s interests in relation to the land the subject matter of such actions are in contravention of the applicant’s guaranteed rights under Article 40 as read with Articles 258, 259 and 260 of the constitution.f.A declaration that the 1st respondent’s actions in issuing the special (Mining) licence to the 1st interested party and any alleged powers to this end that he purports to exercise under the Mining Act, Cap. 306 of the Laws of Kenya, which have resulted in or may result in the ex-parte applicant’s interests and rights in relation to the land the subject matter of such actions are in contravention of the applicant’s guaranteed rights under Articles 19, 20, 21, 22, 23, 40, 47, 62, 64, 71, 227, 258, and 260 of the constitution.g.A declaration that the provisions of the Mining Act, Cap. 306 in as fa as they tend to or derogate in any manner whatsoever from the full rights of the exparte applicant over their land, and Section 4 thereof in particular are inconsistent with and are as such in contravention of the constitution and are therefore null and void to the extent of such inconsistency.”

30. From the above, it is clearly evident that the issue of the validity of the appellant’s leasehold or otherwise was not one of the issues for determination by the court.

31. Turning to the issue of leasehold, the appellant contended that it had a lease agreement dated 29th September 2008 issued by the 6th interested party. The 6th interested party on the other hand disputed this fact. As was correctly observed by the trial judge, the validity of the lease or otherwise could not have been done in judicial review proceedings. It is now a settled principle that judicial review remedies are not available in matters where facts are contested. In the case of Funzi Island Development Limited & 2 Others v County Council of Kwale & Others [2014] eKLR, Karanja JA rendered herself thus:"I would only wish to comment on the suitability of the subject matter herein being disposed of by way of Judicial Review. I do not entertain any doubt whatsoever that the High court was properly seized of this matter in its Judicial Review jurisdiction as the primordial issue for determination before the Court was the legality of the allocation of the parcel of land in question. It is common ground that the subject matter herein is property worth a substantial amount of money. There were also serious and weighty arguments, for instance, whether the property in question was Trust Land or not; whether it was forest land or not; whether it formed part of Funzi Island or it formed part of the foreshore which could not be set aside for allocation.In my view, a court sitting in its civil jurisdiction would have been better suited to hear all these issues and make its ruling on the same. As we all appreciate, a court sitting on Judicial Review exercises a sui genesis jurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues, like excessive jurisdiction, rather than the merits of the case. It is also very restrictive in the nature of the remedies or reliefs available to the parties.Unlike in England, Canada and India (see House of Lords decisions, O’REILLY VS MACKMAN [1983] QBD page 237; O’Rouke vs Camden London Borough Council [1998] A.C. 188 and Stovin vs Wise [1996] 3 ALL ER 801, Anns vs Marton London Borough Council [1978] A.C. 728 Rajkot Municipal Corporation vs Manjulben Jayantilal Nakum [1997] SCC 552 111 79; our Judicial Review process is not broad enough to accommodate a party who is not just aggrieved by the process but who may also want to ventilate other issues arising from the matter, or lay a claim for compensation or damages against some of the parties in the suit.In my view, a matter such as this ought to have been fully heard as a civil claim where all the parties would have had an opportunity to bring all their legal ammunition in support of their claim. That way, issues of fraud as envisaged under the Registration of Titles Act (R.T.A), and other disputed facts would have been fully canvassed and conclusive determinations made on the same.”

32. As was rightly observed by the trial judge and the lease having been contested by the 6th interested party, it is our considered opinion that the judge was right in holding that the appellant needed to adduce evidence to establish its claim over the land which could not have been done in judicial review proceedings. Consequently, this ground of appeal must as well fail.

33. Finally, the learned judge was faulted for failing to apprehend that he was sitting and could only sit as a judge of the Environment and Land Court and not as a judge of the High Court in the judicial review division. Contrary to this contention by the appellant, nothing could be further from the truth. Section 13 of the Environment and Land Act outlines the jurisdiction of the court as follows:13 Jurisdiction of the Court1. The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) b of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes-a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land; ande.any other dispute relating to environment and land.3. Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and health environment under Articles 42, 69 and 70 of the Constitution.4. In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court5. Deleted by Act No. 12 of 20126. Deleted by Act No. 12 of 20127. In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including-a.interim or permanent preservation orders including injunctions;b.prerogative orders;c.award of damages;d.compensation;e.specific performance;f.restitution; org.declaration; orh.costs”

34. From the above Section, it is evidently clear that the Environment and Land Court has the jurisdiction to hear and preside over judicial review proceedings involving land disputes and as such, the contention by the appellant to the contrary is certainly without basis and a misdirection on part of the appellant.

35. Interestingly, the appellant had sought judicial review orders in the same court that he is now contending could not sit as a judicial review court. In our view, nothing turns on this point.

36. The upshot of the foregoing is that this appeal is devoid of merit.Accordingly, it is hereby dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 5THDAY OF NOVEMBER, 2021. HANNAH OKWENGU....................................................JUDGE OF APPEALF. SICHALE.......................................................JUDGE OF APPEALS. ole KANTAI.........................................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR