Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR

Key Facts

Issues

• Whether petitioners have a reasonable apprehension of compulsory land acquisition without compensation under Article 40. This includes whether the BSA's provisions for resettlement and compensation adequately address these concerns.
• Whether the concession required parliamentary ratification under Article 71, and whether the Sixth Schedule's delay in implementing legislation excuses non-compliance. This includes whether the drafters intended Article 71 to be inoperable until specific legislation is enacted.
• Whether the County Government of Kitui (established post-concessioning) must be involved in natural resource negotiations, and whether its absence fatally flawed the process. This includes whether the National Land Commission's non-participation violated constitutional obligations.
• Whether the Coal Mining Project is legally invalid for failing to follow procedures under the Public Procurement and Disposal Act, and whether petitioners should have first exhausted statutory dispute resolution mechanisms before challenging in court.
• Whether the failure to complete an EIA before concessioning rendered the project illegal under EMCA and the Constitution. This includes whether EIA is a condition precedent and whether the BSA's contractual obligations for EIA are enforceable.
• Whether the project threatens petitioners' right to a clean and healthy environment under Articles 42 and 70. This includes whether the lack of an Environmental Impact Assessment (EIA) justifies an injunction and whether the BSA's EIA requirements are sufficient.
• Whether the concessioning process was shrouded in secrecy, lacked due diligence in evaluating Fenxi's technical capacity, and failed to meet constitutional public participation thresholds. This includes whether the Liaison Committee's exclusion from contract negotiations invalidated the process.
• Whether withholding the Benefits Sharing Agreement (BSA) violated petitioners' Article 35 right to information. This includes whether the Liaison Committee (a juridical person) could claim this right and whether the BSA's delayed disclosure constituted a constitutional breach.

Holdings

• The court found the Coal Mining Project is not legally infirm for failing to follow public procurement laws, as the Petitioners did not exhaust the statutory dispute resolution mechanisms outlined in the Public Procurement and Disposal Act.
• The court dismissed claims that the lack of an Environmental Impact Assessment (EIA) rendered the project invalid, stating the EIA is a condition precedent to project commencement and not a pre-concessioning requirement.
• The court found no evidence of infringement on property rights under Article 40, though it emphasized the government must adhere to due process and compensation during compulsory acquisition.
• The court held that Article 71 of the Constitution does not currently require parliamentary ratification for the concessioning, as the enabling legislation to operationalize the provision has not yet been enacted.
• The court determined that the concessioning process did not violate Article 10 of the Constitution, acknowledging the public participation efforts including barazas, stakeholder workshops, and the Liaison Committee, though noting the need for continued engagement during the EIA phase.
• The court concluded that the Petitioners' right to information under Article 35 was not violated, as the Benefits Sharing Agreement (BSA) was eventually provided, fulfilling their request for transparency.
• The court ruled that the Kitui County Government's non-involvement in concessioning was not fatal, citing its non-existence during key negotiations and the lack of proactive engagement from the County itself.

Remedies

• The court orders that the Consolidated Petition is hereby dismissed without any order as to costs, citing the evident public nature of the case.
• The court mandates the Respondents, the Attorney General, and Fenxi Mining Industry Company Limited to continue engaging with the local community and provide reasonable opportunities for public participation during the Environmental Impact Assessment and Resettlement processes as outlined in the Benefits Sharing Agreement.

Legal Principles

• The court applied the precautionary principle in environmental cases, requiring proponents to prove environmental safety. However, in this case, the lack of concrete evidence of harm to the environment or property rights led to dismissal.
• The court emphasized that statutory dispute resolution mechanisms (Public Procurement and Disposal Act) must be exhausted before judicial review. Petitioners who failed to use these channels could not challenge the procurement process in court.
• Public participation under Article 10 of the Constitution requires reasonable opportunities for input, not universal involvement. The court cited international principles (Rio Declaration, Espoo Convention) and Kenyan jurisprudence to affirm that public participation is context-dependent and must be documented.

Precedent Name

• Doctors For Life International V The Speaker National Assembly and Others
• John Muraya Mwangi & 495 Others & 6 Others V Minister For State For Provincial Administration & Internal Security & 4 Others
• Dickson Mukwelukeni vs Attorney General & 4 Others
• R vs Ministry of Interior and Coordination of National Government & Others ex parte ZTE Corporation
• Anarita Karimi Njeru v Republic
• Narok County Council vs Transmara County Council & Another
• Kasigau Ranching (DA) Ltd vs Kihara and 4 others
• Rodgers Muema Nzioka & 2 Others Plaintiffs Vs Tiomin Kenya Limited Defendants

Cited Statute

• Environmental (Impact Assessment & Audit) Regulations, 2003
• Constitution of Kenya, 2010
• Environmental Management and Coordinating Act (EMCA)
• Mining Act
• County Government Act
• Public Procurement and Disposal Act, 2005

Judge Name

• B. Thuranira Jaden
• Joel Ngugi
• Lillian Mutende

Passage Text

• The Court held that the Petitioners' failure to exhaust the dispute resolution mechanisms under the Public Procurement and Disposal Act precluded them from challenging the procurement process in court. The judgment cited the principle that statutory regimes must be followed before judicial intervention.
• The Court ruled that the Environmental Impact Assessment (EIA) was not a pre-condition for concessioning the project but a contractual obligation under the Benefits Sharing Agreement. It emphasized that the EIA process must continue with robust public engagement.
• The Court determined that the Government's public participation efforts in the Mui Coal Project met constitutional thresholds, noting introductory letters, stakeholder workshops, and the Liaison Committee's role. It emphasized that public participation does not require universal involvement but reasonable opportunities to air views.