https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12682

Tata Chemicals Magadi Limited v Cabinet Secretary, Ministry of Mining, Blue Economy and Maritime Affairs & 2 others (Judicial Review E280 of 2026) [2026] KEHC 12682 (KLR) (Judicial Review) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12682 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E280 of 2026 WM Musyoka, J August 7, 2026 Between Tata Chemicals Magadi Limited Applicant and The Cabinet Secretary, Ministry of Mining, Blue Economy and Maritime Affairs 1st Respondent State Department of Mining 2nd Respondent The Attorney General 3rd Respondent Ruling 1.On 30th July 2026, the applicant placed its originating motion, dated 30th July 2026, before me, for consideration of prayer (ii), which seeks an interim prohibition order, to bar the giving effect to a letter from the 1st respondent, of 28th July 2026, for the suspension of the operations of the applicant. The contention, vide the supporting affidavit of Mr. Anthony Wanjohi, sworn on 30th July 2026, is that appropriate notices were not issued. Upon considering that application ex parte, I gave directions, that that prayer be canvassed inter partes, hence the application be served upon the respondents, with further directions on filings and a date for ruling. 2.Upon being served, the respondents have reacted to the application, vide an affidavit in reply, sworn on 4th August 2026, by Mr. Thomas Mutwiwa. The principal response is that various notices had been issued to the applicant, and the parties had had engagements, as late as 29th July 2026, on the matter. It is also averred that the applicant does no holder a current mining licence, as its application for one is still being processed. 3.Attached to that affidavit is a bundle of notices, dating back to 2023, and the latest being dated 14th May 2026, claiming accrued royalty payments arrears. There is also correspondence exchanged, on a variety of outstanding issues. There are also minutes of a meeting held on 29th July 2026, between the parties, where they allegedly agreed on a number of issues, including the continued suspension of operations, and a grace period for the applicant to come to compliance. I note, though, that one of the letters is marked without prejudice, and the respondents ought not have exhibited it in the affidavit. 4.The applicant filed a further affidavit, sworn on 5th August 2026, by Mr. Wanjohi. The allegation of owing royalties is disputed, and it is averred that the suspension of operations order was made without authority, and did not give adequate time to the applicant to respond to the contents of the stoppage letter. The engagements between the parties are conceded, but it is explained that the same comprised of mere requests to consider the rate of calculation of the royalties. It is averred that the outstanding royalties were settled. On land rates, it is averred that the court had held that the land rates in question were unconstitutional. The meeting of 29th July 2026 is conceded, but it is argued that the minutes ought to have been shared with the applicant. It is asserted that the suspension was done without proper notice. 5.Several documents are annexed to support the arguments made. There are documents to evidence payment of the royalties. There is a copy of a judgement, in CACA No. 530 of 2019, which declared payment of land rates to the County Government of Kajiado unconstitutional. 6.Parties were required to file written submissions, and they have complied. 7.The submissions by the applicant are dated 5th August 2026. Section 11 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, and rule 13 of the Fair Administrative Action Rules, are cited to argue that the court has power to grant temporary relief, and that the applicant had established a case for grant of such relief. It is argued that the matter of necessity favoured grant of the order, due to the resultant adverse consequences, in the event the order is not granted, which cannot be undone by a subsequent favourable judgement. Republic vs. National Assembly & another Ex-Parte Coalition for Reform and Democracy (CORD) [2016 KEHC 8362 (KLR), Auto Terminal Japan Limited vs. Nzai & 2 others [2025] KEHC 3304 (KLR), James Mburu Gitau t/a Jambo Merchant vs. Subcounty Public Health Officer Kiambu County [2013] KEHC 6911 (KLR) and George Philp M. Wekulo vs. The Law Society of Kenya & another Kakamega HCMISCA of 29 of 2005, are cited. 8.It is also argued that the applicant would suffer huge losses, and so would all persons who directly or indirectly benefit from its operations. Reliance Bank Limited vs. Norlake Investments Limited [2002] 1 EA 227 and Oloo vs. Kenya Posts & Telecommunications Corporation CACA No. 56 of 1991 are cited. There are also submissions around the respondents not suffering any prejudice should the orders not be granted, and that failure to stay the order would render the application nugatory. It is submitted that the applicant is seeking the prohibition of the continuing implementation of the decision. Republic vs. Senior Land Registrar of Titles Mombasa; Langat (Exparte Applicant) [2024] KEELC 4257 (KLR) and Republic vs. Cabinet Secretary for Transport & Infrastructure & 5 others Ex-parte Kenya Country Bus Owners Association (Thro Paul G Muthumbi Chairman) Samuel Njuguna Secretary Joseph Kimiri Treasurer & 8 others [2014] eKLR are cited. 9.I have seen and read written submissions by the respondents, dated 4th August 2026. It is submitted that the decision has been implemented, and that once that has happened, stay would no longer be efficacious. George Philip M. Wekulo vs. The Law Society of Kenya & another Kakamega HCMISCA of 29 of 2005, R. vs. Capital Markets Authority ex parte Joseph Mumo Kivai & another, Jared Benson Kangwana vs. Attorney General Nairobi HCCC No. 446 of 1995, Republic vs. Cabinet Secretary for Transport & Infrastructure & 5 others Ex-parte Kenya Country Bus Owners Association (Thro Paul G Muthumbi Chairman) Samuel Njuguna Secretary Joseph Kimiri Treasurer & 8 others [2014] eKLR and Munir Sheikh Ahmed vs. Capital Markets Authority [2018] eKLR, are cited. 10.I have considered the filings by both sides, inclusive of the authorities cited. The purpose of these inter partes proceedings, on prayer (ii) of the originating motion, is limited to satisfying the court that the stay sought is warranted. At this stage, the court is not required to engage with arguments on the merits of the substantive suit, but to balance the interests and rights of both sides. That would be the duty on the part of the respondents to undertake their duties in accordance with the law, and the right of the applicant not to have its operations disrupted through a decision that may be quashed in the end. 11.I note that the decision of 28th July 2026 had become effective by the time the applicant moved the court on 30th July 2026. I also note that implementation of the decision had begun in earnest, and that the parties had reached a consensus, from the meeting of 29th July 2026, on the suspension remaining in force, even has the applicant takes steps to bring itself within compliance. The impugned suspension is not permanent, but temporary. The dispute is around mining operations. Although the applicant has alluded to huge losses likely to be suffered, it has not sought to demonstrate the nature and extent of the loss alleged, nor of the adverse consequences mentioned in its submissions. I note too that the commodity, at the centre of it all, from the mining operations, has not been shown to be perishable. 12.I am not inclined to make an interim prohibition order, in terms of prayer (ii), of the originating motion, in the circumstances. Instead, I shall direct the parties to move with speed, to comply with the directions of 30th July 2026, to facilitate an expeditious disposal of the matter. Consequently, the temporary order, sought in terms of prayer (ii) of the originating motion, dated 30th July 2026, is hereby declined. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 7TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMessrs. Oraro & Company, Advocates for the applicant.The Hon. The Attorney General, for the respondentsMessrs. Matemu Katasi & Associates, Advocates for a proposed interested party.