Kenya: Cortec takes battle for mining licence to Court of Appeal

23rd March, 2015

PHOTO | FILE Cortec Kenya Limited director for Kenya Jacob Juma.

 

Cortec Kenya Limited Country Director Jacob Juma. On March 23, 2015, he took the battle for the firm’s mining licence in the Mrima Hills to the Court of Appeal. FILE PHOTO |   NATION MEDIA GROUP

By VINCENT AGOYA
More by this Author

In Summary

  • The company seeks to overturn the judgment that dismissed its case against Mr Balala for stopping its operations prematurely in Kwale County.
  • Cortec, through its Country Director Jacob Juma, claims the judgment was flawed and failed to address the core concern that “it was not given a hearing as required in law before the decision was made.”
  • He said the judge failed to address the process of striking out the licence, instead delving into areas concerning acquisition of prior consent from government oversight agencies.
  • Mr Juma has restated that the minister’s action was based on ulterior motives and not on law, and now wants the court of appeal to intervene.

A licensing dispute pitting Cabinet Secretary Najib Balala against an international mining company, Cortec Mining Kenya, is now headed for the Court of Appeal.

The company on Monday filed the appeal in which it is seeking to overturn the judgment that dismissed its case against Mr Balala for stopping its operations prematurely in Kwale County.

Mr Balala struck out Cortec’s licence after the firm claimed it had identified commercially viable mineral deposits estimated at Sh61 trillion in the Mrima Hills.

Cortec, through its Country Director Jacob Juma, claims the judgment was flawed and failed to address the core concern that “it was not given a hearing as required in law before the decision was made”.

The appellant has restated that “the minister breached Section 27 of the Mining Act by not giving them a hearing before he made the decision”.

PROTECTED HILLS

He said the judge failed to address the process of striking out the licence, instead delving into areas concerning acquisition of prior consent from government oversight agencies.

Former Commissioner of Mines L. K Biwott opened up the protected hills to Cortec for prospecting and gave the company an exclusive right to operate on November 30, 2007.

In the new case, Cortec says there is no provision in law that requires the commissioner to get consent from Nema, the National Museums of Kenya and the Kenya Forest Service, which had teamed up to oppose its application.

“The court did not address itself to the issues raised in the application for judicial review against the decision of the minister to cancel the special licence,” Mr Juma states.

He says Section 27 of the Mining Act states that in case of revocation of a prospecting right, its shall be lawful for the commissioner of mines to call upon the holder to show cause, and not the minister, within a specified time.

Failure to comply with such an order or should the cause shown not be adequate in the opinion of the minister, the appellant claims, then the licence may be summarily revoked.

ULTERIOR MOTIVE

It is the appellants’ contention that the law was not duly followed before their licence was revoked.

The suit papers indicate that Cortec had operated in Kwale for five years as per a Gazette notice of November 30, 2007 and had been renewing its licence every two years.

Mr Juma has restated that the minister’s action was based on ulterior motives and not on law, and now wants the court of appeal to intervene.

“The decision failed to take into account Cortec’s legitimate expectation that having invested in the prospecting of the mining resources and having been issued with a licence, the appellant was entitled to see its investment bear fruit,” the firm says.

Last week, Environment and Land court judge John Mutungi ruled that Mr Balala was right to revoke the licence, and criticised Mr Biwott for abdicating his duty and giving Cortec the special licence.

He said Cortec never got the nod from stakeholders as the procedure dictates.

SOURCE: http://www.nation.co.ke/news/Balala-Cortec-licence-fight-heads-to-top-court/-/1056/2663174/-/a00tb5z/-/