Base Titanium has lost its appeal to stop the petition filed against it by villagers of Mivumoni B in Kwale, accusing it of pollution during its activities in the county.
The villagers, Michael Kiswili and 65 others, filed a petition on February 10, 2022, against Base Titanium before Justice Addraya Dena.
Justice Dena dismissed the application and stated that the villagers were seeking a declaration that their rights to a clean and healthy environment had been denied.
She said the villagers had a right of redress under Article 162(2)(b) of the Constitution as read with sections 12(2)(a)(e), (3), and (7) of the Environment and Land Court Act.
Base appealed, saying the authority over such dispute rests with the Cabinet Secretary, Mining, and courts can exercise appellate jurisdiction from a decision made by the CS.
The appellant Justices, Agnes Murgor, K. Laibuta, and Ngenye Macharia, have dismissed the appeal, saying issues raised by villagers fell within the original jurisdiction of the ELC.
They said section 3(3) of the Environmental Management and Coordination Act (EMCA) is instructive, as it grants any person who claims that their right to a clean and healthy environment has been violated the right to apply to the ELC for redress by specifically stating.
“Having analysed the afore-cited judicial authorities, we come to the inescapable conclusion that the ELC has jurisdiction to determine the constitutional issues raised before it,” said Justice Murgor.
The judges said that what the villagers were seeking to enforce was their right to a clean and healthy environment.
The judges added that the villagers did not raise their complaint to make the mining company stop its mining activities.
Justice Murgor said that the petition having raised constitutional issues, the CS Mining ultimately became divested of jurisdiction to adjudicate over the dispute.
“We underscore the principle that constitutional petitions, among other reliefs a petitioner may seek, concern declarations of infringement of rights. They are special, and the mandate to determine them is conferred upon the courts by the Constitution and the relevant statutes enacted thereunder and, in this instance, the ELC Act,” said Justice Murgor.
Kiswili filed a petition dated March 18, 2020, seeking the court to declare that the mining company has denied the villagers’ right to a clean and healthy environment.
Kiswili asked the court to order environmental restoration against the mining company. The villagers also applied to have NEMA revoke Base Titanium’s Environmental Impact Assessment License.
The villager said that since the 1950s, they had resided in Mivumoni “B” village, also known as the ‘Nora Buffer Zone.
In 2016, they say, the Commissioner of Mines and Geology issued a mining license to Base Titanium Limited to mine and extract titanium and related products within Kwale.
The base titanium mining license was expected to expire in the year 2025.
Kiswili, the mining activities located less than three kilometres from their village, resulted in excessive noise and air pollution from dust and other particles, which adversely affected them.
He said that there was excessive noise during the day and at night, posing serious health risks to expectant mothers and unborn children.
Kiswili said the mining also caused ill health in young children, domestic animals, and humans from drinking water contaminated with percolated titanium dust and poor farm yields from agricultural crops, including fruits and vegetables affected by titanium dust.
He said the villagers were not concerned with the physical mining activities of the mining company but with the effect of such mining activities on their environment.
However, Base Titanium General Manager Simon Hall defended the project by stating that an EIA was unnecessary.
Hall said that in relation to its mining project, the only document that was needed was the license from the NEMA, and it denied that it was in breach of the EMCA.
