BY SAM ALFAN.
Cortec Mining Kenya has suffered a double blow after Appellate Court ruled government was right to revoke the special mining licence obtained by Canadian firm for prospecting in the controversial 142-hectare Mrima Hill Forest Reserve in Kwale County.
The foreign firm, associated with slain businessman Jacob Juma, had clandestinely obtained the 21-year licence dated March 7, 2013, in violation of laws prohibiting mining in nature reserves and forests, Appellate Judges Philip Waki, Roselyne Nambuye and Patrick Kiage held in their 25-pape judgment.
They said former Mining Cabinet Secretary Najib Balala acted within the law by invalidating the licence on August 45, 2013which was illegally issued by the former Commissioner of Mines and Geology when the government was in transition to counties. “The Commissioner acted in breach oif the Mining Act and the Constitution and in breach of the trust bestowed upon him,” the court held.
“The Cabinet Secretary was the final authority and custodian of public trust and his action was neither malicious nor unreasonable as it applied to 42 other licences issued under similar circumstances,” the three-Judge bench held.
Three key government institutions-the Kenya Forest Services, the National Museums of Kenya and the National Environment Management Agency (NEMA)-never gave mandatory approvals and were strongly opposed to the project because the site was legally out of bounds for mining activities, the court pointed out.
Cortec Mining Kenya had asserted that it had obtained all necessary approvals required by law and had spent more than Sh500million in readiness to commence prospecting natural resources from the reserve. The firm claimed to have identified large deposits of Niobum and Rare Earth Base metals worth over US$600billion.
But the State had argued that the firm had applied for the special mining licence on January 10, 2012 but the application was rejected two days later for non-compliance with various mandatory requirements. No appeal was filed against the refusal but the firm strangely acquired the licence through the back-door without any deliberations by the relevant licensing committee of the ministry, Senior State Counsel Emmanuel Bitta had explained.
The three state agencies had supported the revocation of the firm’s licence on grounds that Mrima Hill is a rich indigenous forest that has been legally protected since 1961 and is gazette as a natural heritage and national monument.
The company moved to court of appeal seeking to overturn the judgement that dismissed its case against CS Balala for stopping it’s operations prematurely in Kwale county.
Cortec claimed the judgement was flawed and failed to address the core concern