Automated Summary
Key Facts
Rockland Kenya Limited, a mining company, challenged the refusal of an Export Permit by the Cabinet Secretary for Petroleum and Mining. The company argued that the 2017 directive requiring Export Permit applications to be submitted to the Cabinet Secretary instead of the Director of Mines was unconstitutional due to lack of public participation during its formulation. The court dismissed the conservatory orders application but expedited the main petition to determine the validity of the directive and its compliance with statutory procedures.
Issues
- The court needed to determine whether the 2017 directive issued by the Cabinet Secretary, which required export permit applications to be submitted to the Cabinet Secretary rather than the Director of Mines, usurped the statutory authority granted to the Director under Section 171(2) of the Mining Act. The Petitioner contended that this directive was invalid as it conflicted with the legislative provisions.
- The second issue was the validity of the 2017 directive as a statutory instrument under the Statutory Instruments Act. The Petitioner argued that the directive was issued without the required stakeholder participation and public consultation, making it non-compliant with Sections 5(1) and 11 of the Statutory Instruments Act.
Holdings
- The court held that public interest favors compliance with existing directives until they are declared unconstitutional. The directives are currently deemed constitutional, and their suspension would require stronger justification.
- The court dismissed the Notice of Motion dated 30th December, 2020, finding that the Petitioner had not established a case worth granting conservatory orders at the moment. The hearing of the main Petition will be expedited.
- The Petitioner failed to demonstrate that it would suffer irreparable loss if conservatory orders were not granted. The court emphasized that the loss, if any, must be ascertained during the main Petition hearing.
Remedies
- The Notice of Motion dated 30th December, 2020 is hereby dismissed.
- The Petitioner shall extract and serve a copy of this Order upon the Respondents within 21 days of this ruling.
- Directions on 2nd February, 2022.
Legal Principles
The court applied principles regarding the nature of conservatory orders, the requirement to demonstrate a prima facie case, the need to show irreparable harm without interim relief, and the importance of public interest considerations in granting such orders. It emphasized that conservatory orders are remedies in rem to preserve the status quo pending the main petition, and highlighted the caution required to avoid premature adjudication of substantive issues.
Precedent Name
- Okiya Omtatah Okoiti & Another v Nairobi City County Assembly & 5 others
- Mirugi Kariuki -vs- Attorney General
- Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others
- Mrao vs. First American Bank of Kenya Limited & 2 Others
- Judicial Service Commission vs. Speaker of the National Assembly & Another
- Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others
- Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others
- Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General
- Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another
- Republic -vs- Attorney General Law Society of Kenya (Interested Party): exparte: Francis Andrew Moriasi
- Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW)
- Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others
- Platinum Distillers Limited vs. Kenya Revenue Authority
Cited Statute
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
- Constitution of Kenya
- Mining Act, 2016
- Statutory Instruments Act
- Mining (Dealing in Minerals) Regulations, 2017
- Mining Act (repealed)
Judge Name
A.C. Mrima
Passage Text
- 40. Up until when the directives are otherwise declared unconstitutional, public interest tilts in favour of the position that the law currently in place be complied with.
- Depending on the manner in which the process is challenged, a prima-facie case may be established. In this case, the fact that the directive is impugned to be unconstitutional and there is so far no rebuttal no doubt places the Petitioner in a position of having established an arguable case. That is a prima-facie case.