[1998] KECA 4 (KLR)

Kasigau Ranching (DA) Ltd vKihara & 4 others

Court of Appeal, at Nairobi November 6, 1998

Tunoi, Shah & Owuor JJ A

Civil Application No 105 of 1998

(Appeal from a judgment of the High Court of Kenya at Nairobi (Mbito, J.)

dated 25th February, 1998 in HCCC No 5936 of1993)

Mining– prospecting and mining – lands excluded from prospecting and

mining - Mining Act section 7 (1) (m) and 7 (2)

The applicant was the registered owner of the parcel land known as LR

No 12180 situated at Kasigau within Taita Taveta District. The respondents

were at one point licensees of the applicant for prospecting of minerals

and precious stones, but the applicant had allegedly withdrawn the said

licence.

Having filed an appeal which contested the continued prospecting by the

respondents on the applicant’s land, the applicant sought a stay of execution

and or injunction pending the outcome of the appeal. The respondents

opposed the application by arguing that having been granted a licence

from the Department of Mines and Geology to prospect and mine on the

applicant’s land they were entitled to carry out their mining operations

regardless of the lack of consent on the part of the applicant.

Held:

1. According to section 7 (1) (m) and 7 (2) of the Mining Act, private

lands are exempted from prospecting and mining except with the consent

of the landowner and the Minister is not authorized to send persons to

private lands for the purpose of prospecting and mining without the

consent of the owners thereof.

2. The applicant had satisfied the two principles to be considered when

granting a stay or injunction under Rule 5 (2) of the Court of Appeal

Rules.

3. The status quo should be maintained by removal of the respondents

and their equipment from the applicant’s land.

Application allowed.

Cases

No cases referred to.

Statutes

1. Mining Act (cap 306) section 7 (1) (m), (2)

2. Court of Appeal Rules (cap 9 Sub Leg) rule 5 (2)(b)

Advocates

Mr Olouchfor the Respondent.

November 6, 1998, the following Ruling of the Court was delivered.

The applicant is the registered owner of all that parcel of land known as

LR No 12180 situated at Kasigau within Taita Taveta District. The

respondents were, some time ago, licensees of the applicant, for

prospecting of minerals and precious stones. The licences were withdrawn.

This court in fact, in Civil Appeal No 134 of 1994, which appeal was

between the same parties who are before us said:

“The defendants had been granted a licence which had

expired and there was no evidence of any renewal of

such licence. Upon the plaintiff withholding his consent

the defendants were clearly trespassers.”

It is clearly arguable as to whether the Department of Mines and Geology

in any way allow trespassers to continue prospecting on someone else’s

land. It is also clearly arguable as to whether the applicant could ever

become a trustee of the respondent’s alleged right to the minerals which

may be on the said parcel of land.

But Mr Oluoch for the respondent was at pains to argue, that as the

Department of Mines & Geology had granted to the respondents a licence

to mine on the property of the applicant, they were entitled to carry out

their mining operations regardless of the lack of consent on the part of the

applicant. He referred to sections 7(1)(M) and 7(2) of the Mining Act cap

306 (the Act) to support his argument. But that cannot be.

Section 7(1)(M) of the Act simply provides that private lands are excluded

from prospecting and mining except with the consent of the owner thereof.

This section does not help the respondents. On the contrary it exempts

private lands from prospecting and mining except with the consent of the

owner.

Section 7(2) of the Act authorizes the Minister to decide whether or not a

particular land is excluded under the section (from prospecting and mining)

but it does not authorize the Minister to send prospectors and miners from

going on to the land without the consent of the owner thereof.

The provisions in the Act relied upon by Mr Oluoch does not take his

argument any further but, to the contrary, the said provisions protect the

owner of land should he not want prospectors and miners on his land.

It will suffice to say, at this stage, that the intended appeal is clearly

arguable, a fact which was eventually conceded by Mr Oluoch who

however, steadfastly maintained that the intended appeal would not be

rendered nugatory in the event of success as the applicant could still sell

the land it wanted to sell to pay off the mortgage for which debt Agricultural

Finance Corporation of Kenya was threatening to sell the land. Mr Oluoch

urged that as the applicant had no rights in the minerals in the land it

could suffer no harm whilst the respondents continued prospecting thereon.

That argument is not correct. Any prospective buyer who is aware of the

presence of the respondents on the land with their temporary structures

and mining machines would shy away from buying that land as a result

whereof the applicant would not be able to sell the land exposing it to the

inevitable forced auction sale. Mr Oluoch’s argument that the applicant

only owns the top soil and therefore can suffer no harm as a result of

prospecting going on on the land is not cogent. Save for minerals the

applicant owns everything on and in the soil. If the licence to prospect is

withdrawn by the landowner the licence issued by the Commissioner of

Mines and Geology stands terminated. The commissioner cannot purport

to give permanent rights to prospectors to mine and Mr Okwach’s assertion

to the contrary is, to say the least, baseless.

The applicant has satisfied both the principles to be considered when

granting a stay or injunction under rule 5(2)(b) of the Rules of this Court.

The next issue to be decided at this stage is what status quo do we order

maintained. It must be, clearly, the status quo ante that is to say the parties

must be put back into the position they were before the judgment of the

superior court. Prior to that judgment the respondents or their agents

were restrained from entering upon, prospecting and/or mining or in any

other way dealing with the applicant’s land. That is the status quo we

would order so that those respondents who are on the applicant’s land

must remove themselves from the applicant’s land. Their belongings and

equipment must also go with them. These therefore are our orders. The

costs of this application will be costs in the appeal.