Lawyer gives secret to winning Cortec case

Lawyer Kamau Karori at a past function.[Edward Kiplimo,Standard]

A letter from a State agency is what helped the Government to win the Sh6.2 trillion mining dispute in a US based tribunal. National Environmental Management Authority (Nema) rejection of any possible mining for Niobium and Rare Earth at Mrima Hills in Kwale County was critical in sealing the fate of the case.

According to the Kenyan lead lawyer Kamau Karori who is a partner with DLA Piper and IKM Advocates, on March 22, 2013, Prof Geoffrey Wahungu, then Nema Director General wrote to Cortec denying them the licence to the mining at Mrima Hills. He instead asked them to explore alternative sites.

In his reasons that later came to save the country a possible slap of billions of shillings at the International Centre for Settlement of Investments Disputes (ICSID), Prof Wahungu argued that there were archaeologically significant sites within the project area.

“The project will be implemented within Mrima Hills within the forest which is gazetted as a nature reserve, forest reserve and a national monument and that the project will lead to massive destruction of the biodiversity,” read part of reasons Wahungu gave for the rejection of the mining licence.

Protected areas

Lawyer Karori said that victory of the case saved Kenyans tax payers cash and demonstrated an endorsement of the protected areas. Cortec Kenya Ltd had sued in Kenya in November 2017 seeking Sh200 billion compensation for loss of mining rights following cancellation of their licence by then Mining Cabinet Secretary Najib Balala in 2013.

In their suit was Cortec a firm associated with the late businessman Jacob Juma, claimed that after they were given the licence, they had planned to invest Sh44 billion in the mining of the rare earth deposits

According to Cortec, the estimated deposits for nobium and other Rare Earth metals run into Sh6 trillion billion.

Mr Karori explained that the mining licence that Cortec used to prepare its planned investment was fraudulently obtained. “Cortec mining license was void ab initio given that it did not comply with applicable legal and regulatory provisions relating to the grant of the permit under Kenyan law,” said Karori.

Karori said the ruling by ICSID had helped to create a distinction from bona-fide investment and those illegal deals that are obtained by flouting Kenyan laws.

“This is a strong message that the days of dirty deals are over, it is also an endorsement of the local legal teams and their ability to defend even the biggest of cases in the global arena,” said Karori.