https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1000

Krystalline Salt Limited & 3 others v Cabinet Secretary Ministry of Mining and Petroleum & another (Civil Appeal E044 of 2023) [2026] KECA 1000 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1000 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E044 of 2023 SG Kairu, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Krystalline Salt Limited 1st Appellant Kurawa Industries Limited 2nd Appellant Malindi Salt Works Limited 3rd Appellant Kensalt Salt Limited 4th Appellant and The Cabinet Secretary Ministry Of Mining And Petroleum………………...1St Respondent The Attorney General 1st Respondent The Attorney General 2nd Respondent (Being an appeal from the Judgment of the Environment and Land Court of Kenya at Malindi (M. A. Odeny, J.) dated 12th January 2023 in ELC Cause No. 14 of 2021) Judgment 1.This appeal arises from the judgment of the Environment and Land Court (ELC) at Malindi (M. A. Odeny, J.) delivered on 12th January 2023. In that judgment, the ELC partially allowed the appellants‟ Constitutional Petition dated 12th July 2021 and quashed, by an order of certiorari, the 1st respondent‟s decision contained in letters dated 12th May 2021 addressed to the appellants demanding their full compliance with the requirements of the Mining Act, 2016 (the Mining Act). However, the ELC dismissed the appellants‟ prayers in the petition for declarations: that the Act does not govern the extraction, sale, export or other dealings with edible sea salt; that the appellants are not under an obligation to comply with the provisions of the Act; that the appellants are not required to obtain fresh approvals for their activities under the Act; and that attempts by the 1st respondent to terminate, revoke or interfere with the appellants’ edible salt extraction rights without due process and without compensation constitutes a violation of Articles 40, 27, 47, 209 and 210 of the Constitution. 2.Also rejected by the court was the appellants‟ prayer for a permanent injunction barring the respondents from revoking, cancelling, suspending, or altering the appellants‟ edible salt extraction rights contained in their respective leases until expiry of the leases. 3.The factual background in brief is that, based on Grants from the Government of Kenya made under the Registration of Titles Act (repealed), the appellants (as grantees) hold leasehold interests ranging from terms of 50 to 99 years. The commencement dates of the terms varied, the earliest having commenced on 1st July 1975. The Grants are over large parcels of land known as Land Reference Numbers 13427, 10755, 13332, 21196 and 12333. 4.A special condition common to the Grants, namely, Special Condition No. 5, provides that “the land and the buildings shall only be used for extraction of salt and housing for essential staff.” Other relevant conditions in the Grants stipulated that, should the appellants close their operations of extraction of salt, the land would automatically revert to the Government without payment of compensation; that during the term of the leases, the appellants would pay to the Commissioner of Lands royalties on salt extracted at the rate of Kshs. 2.0 per metric ton or Kshs. 160,000.00, whichever is the higher; and that the appellants shall not transfer, sublet, charge or part with possession of the land. 5.In the year 2016, Parliament enacted the Mining Act, which commenced on 27th May 2016. By letters dated 15th June 2019, the Principal Secretary (PS), Ministry of Petroleum and Mining drew the attention of the appellants to the requirements of the Act. In particular, the PS pointed out to the appellants “the First Schedule which specified salt as a mineral under the administration of the Act” and that they (the appellants) were required to formalize their salt extraction operations by acquiring the necessary licences under the Mining Act; that, under Section 171 thereof, the appellants were required to obtain an export permit for any consignment of salt. 6.Subsequently, by letters to the appellants dated 12th May 2021, the Acting Director of Mines in the then Ministry of Petroleum and Mining wrote to the appellants thus:“We had advised you to formalize your salt extraction operations by acquiring the necessary licenses as provided under the Mining Act 2016 and to always obtain an export permit for any export consignment of salt.To date you have not formalised your salt extraction operations and you don't obtain an export permit for your salt consignments during export. You have operating (sic) unauthorized operations and the related offences and fines are specified in Section 202(1) of the Mining Act. In this regard you have been given thirty (30) days from the date of this letter to formalize your unauthorized operations.By a copy of this letter the Kenya Revenue Authority (KRA) has been advised not to allow any salt export without any export permit from the Ministry of Petroleum and Mining.” 7.That communication precipitated the filing by the appellants of Constitutional Petition before the ELC in July 2021 that culminated with the impugned judgment. Having considered the petition, the respondents‟ response by way of replying affidavit, and the rival submissions, the learned Judge of the ELC held that contrary to the appellants‟ claims, their proprietary rights over the aforementioned parcels of land had not been violated; that it was within the mandate of the respondents under the Mining Act to regulate extraction of edible sea salt by the appellants; that the Act does not extinguish the appellants‟ rights, but brings the regulation of the appellants‟ activities within the ambit of the Mining Act; that the non-compliance by the appellants with the provisions of the Act was based on a mistaken belief that “edible salt” was not within the ambit of the Act; and that there was no double regulation of the appellants‟ right to harvest salt. The Judge concluded that the appellants:“…rights under Article 40 of the Constitution have not been violated as no rights have been taken away from the [appellants]. The [appellants] still have the rights to extract the edible salt from their respective parcels of land and the remainder of their leases will not be affected save for being regulated vide the Mining Act where the Cabinet Secretary has the mandate to prescribe rates of royalties to be paid and be guided by law. The [appellants] were paying royalties under the old regime under the Commissioner of Lands and now they will pay within the ambit of the Mining Act regulations.” 8.The Judge held that the commencement of the Act did not extinguish the appellants‟ leases “but they must be regularized within the Act.” The Judge then concluded that, having found that edible salt is regulated by the Act and that the appellants were operating legally within the framework of the Registration of Titles Act:“…the letters dated 12th May 2021 by the respondent for compliance are hereby quashed and that the respondent is at liberty to start a fresh process for compliance to bring the [appellants] within the purview of the Mining Act bearing in mind that the [appellants] were within their rights to extract the salt in a previous regulating regime.” 9.Beyond quashing the letters of 12th May 2021, the ELC, as already mentioned, dismissed the other prayers in the petition and hence the present appeal. 10.We heard the appeal on 9th October 2025. Learned counsel Mr. J. Arwa appeared with Mr. Ometo for the appellants while learned counsel Ms. Lutta appeared for the respondents. Counsel highlighted their respective written submissions. 11.Expounding on the grounds of appeal set out in the Memorandum of Appeal, counsel for the appellants submitted that the appellants‟ salt-harvesting rights are protected under Article 40 of the Constitution, which prohibits the arbitrary deprivation of private property without due process and compensation. It was urged that the leasehold interests under the leases were granted specifically for salt extraction and not for any other purpose, and that compelling the appellants into the Mining Act regime effectively terminates these existing leases; that the Mining Act introduced new conditions and limitations, such as the requirement for annual licenses, and that the effect is to deprive the appellants of their property without compensation in violation of Article 40(3) of the Constitution. 12.It was submitted further that Parliament cannot expropriate private property without giving the property owner the opportunity to be heard and that, in the present case, the appellants‟ rights under Articles 47 and 50 of the Constitution were violated as they were not accorded an opportunity to be heard. 13.It was submitted further that the appellants are wrongly being subjected to two regulatory regimes in that they are required, under the grants under the Registration of Titles Act, to pay royalties to the Commissioner of Lands and follow specific land-use conditions; that failure to do so results in the automatic forfeiture of the land while under the Mining Act, they are required to pay different royalties to the Ministry of Mining and seek fresh permits. 14.Furthermore, it was urged that edible sea salt does not fall under the legal definition of a "mineral" as governed by the Mining Act; that the Mining Act defines minerals as substances derived from rocks through excavation; that edible sea salt is harvested from seawater and involves no excavation or rock-based extraction; and that Section 7 of the Act expressly excludes certain salts customarily taken by the community, and the First Schedule only includes "construction and industrial salt," and not edible salt. 15.It was submitted that, under Section 162(1) of the Mining Act, all obligations under the old law continue to exist, and that under Section 225, existing rights should be preserved until expiry of the leases, and that the learned Judge erred in her interpretation of the Act. 16.Counsel concluded by urging that the learned Judge erred in failing to consider the substantive issues that arose from the attempted migration of the appellants to the Mining Act and urged this Court to set aside the judgment of the ELC. 17.Opposing the appeal, counsel for the respondents submitted that the appeal lacks merit, and that the decision of the ELC should be upheld. It was urged that contrary to the claim by the appellants, their rights under Article 40 of the Constitution have not been violated. It was urged that the Mining Act does not, as contended by the appellants, terminate their leases but rather regularizes and regulates their activities; that the main change is the regulatory framework under which royalties are paid, moving from the old system under the Commissioner of Lands to the new regime under the Mining Act; that the appellants‟ rights to extract salt, not having been taken away as the appellants claim, the question of entitlement to compensation does not arise. 18.Regarding the argument by the appellants that edible sea salt falls outside the scope of the Mining Act, it was submitted that the Act applies to all minerals listed in the First Schedule, which includes "salt" classified under the„construction and industrial minerals‟ category; and that the distinction introduced by the appellants between „edible‟ and „industrial‟ salt is nonexistent under the Act. The respondents maintain that any salt extraction operation is subject to the Act's regulations. 19.According to the respondents, the claim by the appellants that they were being forced to comply with two contradictory regulatory regimes is not well founded. It was submitted that the Mining Act regime simply took over the mandate previously held by the Commissioner of Lands with regard to collection of royalties, and that the Mining Act provided an 18-month period for transition to the new regime; and, in that regard, it was submitted that due process was followed by sending numerous letters and by holding meetings with the appellants in 2021 to discuss mining permits and royalties before taking action. 20.As regards the appellants‟ argument that Section 225 of the Act saves them from the application of the Act, it was submitted that what that provision does is to preserve certain rights from repealed laws (like the old Mining Act Cap 306), but since the appellants were previously regulated under land laws rather than the old mining laws, they have no subsisting mining rights to be "continued" without regularization under the Mining Act. 21.Counsel concluded by urging that the ELC was right in finding that salt extraction is a mining operation subject to the Act and urged the Court to dismiss the appeal with costs. 22.We have considered the appeal and the submissions in keeping with our power as a first appellate court under Rule 31(1)(a) of the Court of Appeal Rules to re-appraise the material that was before the ELC with a view to drawing our own conclusions. There are six grounds of appeal as set out in the appellants‟ memorandum of appeal. Based on those grounds, the complaints against the judgment of the ELC raise three main issues. First is whether the appellants‟ right to property under Article 40 of the Constitution was violated by reason of enactment by Parliament of the Mining Act, and whether the appellants‟ interest in the leased properties was thereby terminated. The second issue is whether, on account of the enactment of the Mining Act, the appellants are thereby subjected to two contradictory and mutually exclusive regimes. The third issue is whether edible salt falls outside the ambit of the Mining Act. 23.We start with the question whether the appellants‟ constitutional rights to property were violated on account of the enactment of the Mining Act. The legislative authority of the Republic of Kenya is vested in and exercised by Parliament under Article 94 of the Constitution. Parliament is itself bound by the Constitution and is obligated to protect it. Article 40(3) of the Constitution prohibits the State from depriving a person of property or of any interest in, or right over, property of any description unless the conditions set out thereunder are fulfilled, including provision for the requirement of prompt payment of compensation. 24.It is not in dispute that the appellants hold varying leasehold interests ranging from 50 to 99-year terms over the already mentioned parcels of land based on grants issued under the since repealed Registration of Titles Act. A common special condition, condition No. 5, in all the grants as already noted is that “the land and buildings shall only be used for extraction of salt and housing for essential staff.” Special Condition 17 provided that:“The grantee shall pay to the Commissioner of Lands during manufacturing period Royalty on salt extracted at a rate of Shillings two (2/=) per metric ton or Shs. 160,000/= whichever is higher. At the end of each calendar year the grantee shall submit to Commissioner of Lands and audited certificate for salt production figure for information and verification of royalty payable.” 25.Come 2016, during the currency of the appellants‟ leasehold interests over the stated parcels that were yet to expire, Parliament enacted the Mining Act. As already stated, that Act commenced on 27th May 2016. The object of the enactment as stated in the preamble to the Act is:“An Act of Parliament to give effect to Articles 60, 62(1)(f), 66(2), 69 and 71 of the Constitution in so far as they apply to minerals; provide for prospecting, mining, processing, refining, treatment, transport and any dealings in minerals and for related purposes.” 26.Consistently with Article 62 of the Constitution under which public land includes all minerals as defined by law, Section 6(1) of the Mining Act on ownership of minerals provides that every mineral is the property of the Republic and is vested in the national government in trust for the people of Kenya.Section 6(2) of the Mining Act provides that “subsection (1) applies despite any right or ownership of or by any person in relation to any land in, on or under which any minerals are found.” A clear distinction therefore exists between the rights over land, over which the appellants are entitled by dint of the grants under RTA, and rights over minerals. Based on the foregoing, the argument by the appellants that the regulation of the mining activities in their land effectively extinguished their interest in the land lacks merit. 27.We conclude, as did the learned Judge of the ELC in paragraph 80 of the impugned judgment that:“On the issue whether the commencement of the Mining Act extinguishes the rights of the [appellants] in respect of the leases on the parcels of land that they deal in extraction of edible salt, the Act does not extinguish the rights but brings the regulation of the [appellants] activities with within the ambit of the Act.” 28.Despite the enactment of the Mining Act, the appellants still have the right to extract or harvest salt from their respective parcels of land. The question of violation of the appellants‟ constitutional right to property under Article 40 of the Constitution does not therefore arise. Having found that there was no violation of the appellants rights in that regard, the question of compensation does not arise. It is moot. 29.There is then the related question whether edible sea salt falls within or outside the ambit of the Mining Act. Under Section 4 of the Mining Act on interpretation, the word “mineral” is defined to mean:“Geological substance whether in solid, liquid or gaseous form occurring naturally in or on the earth, in or underwater, in mine waste or tailing and include the minerals specified in the First Schedule but does not include petroleum, hydrocarbon gases or groundwater…” 30.Under part A of the First Schedule, 50 different types of minerals are listed under the head of “Construction and Industrial Minerals.” In their ordinary meaning, the labels “Construction and Industrial” bear reference to the use to which the mineral might be put. Amongst the 50 different types of minerals listed thereunder is “salt”, listed as No. 42. Whereas the 50 minerals, including salt, have been placed under the general classification of “Construction and Industrial Minerals” the use to which any of those minerals might be put is in our view of no consequence. It bears repeating that any of the minerals listed under that classification may have different uses. That does not remove them from the broad and general category of minerals as defined in Section 4 of the Mining Act. We agree therefore with the holding by the learned Judge that “the Act does not differentiate “edible salt” or remove it from the ambit of the statute and that “salt is either used as edible or industrial…hence regulated within the ambit of the Mining Act 2016.” 31.Finally, there is the question whether, on account of the enactment of the Mining Act, the appellants are thereby subjected to two contradictory and mutually exclusive regimes. In that regard, the learned Judge of the ELC held that the appellants “were paying royalties under the old regime under the Commissioner of Lands and now they will pay within the ambit of the Mining Act regulations.” That holding is in our view well founded. It would be unconscionable to subject or demand of the appellants to pay royalties in respect of their mining activities twice over to different authorities. 32.All in all, the appeal is devoid of merit. It is accordingly dismissed with costs to the respondents. 33.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 29THDAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, CArb.....................................JUDGE OF APPEALDR. K. I. LAIBUTA, CArb, FCIArb.....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar