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Supreme CourtDismissedPetition E040 of 2025

Base Titanium Limited v Kiswili (Acting on His Own Behalf and on Behalf of 65 others) & 3 others

Supreme Court of Kenya
15 May 2026
4,908 words in judgment
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AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Environment Court can hear mining pollution cases even if alternative dispute process exists.

What this practically means

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The Supreme Court decided that the Environment and Land Court has the power to hear cases about violations of the right to a clean and healthy environment, even when those cases arise from mining activities. The Court said that the Cabinet Secretary for Mining cannot decide constitutional issues, so people can go directly to court instead of first using the Mining Act's dispute resolution process. This means that the availability of another remedy does not block a person from seeking constitutional relief in court.

Executive summary

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The Supreme Court dismissed an appeal by Base Titanium Limited against the Court of Appeal's decision affirming the Environment and Land Court's (ELC) jurisdiction to hear a petition alleging environmental violations from mining operations in Kwale County. The 1st respondent, Michael Kiswili, had sued on behalf of residents claiming that the appellant's titanium mining activities violated their right to a clean and healthy environment under Article 42 of the Constitution. The appellant argued that under Section 155 of the Mining Act, such disputes should first be determined by the Cabinet Secretary for Mining, with the ELC only having appellate jurisdiction. The Supreme Court first overruled a preliminary objection on its jurisdiction, holding that the appeal fell within Article 163(4)(a) as it involved the interpretation of Article 162(2)(b) of the Constitution. On the merits, the Court held that the ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act to hear and determine petitions alleging violations of constitutional environmental rights, even where the dispute arises from mining operations. The Court applied the 'predominant purpose test' and found that the dominant issue was the alleged violation of constitutional rights, not a mere mining dispute. The Cabinet Secretary under Section 155 of the Mining Act cannot adjudicate constitutional violations or grant declaratory relief. The Court further held that the availability of an alternative remedy does not bar constitutional relief where the alternative is inadequate. The appeal was dismissed with costs, and the ELC petition was directed to proceed for determination on its merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the appeal?
  2. 2.Whether the Court of Appeal erred in its decision of 18th July, 2025?
  3. 3.What orders are to be issued by this Court?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear the appeal.

Holding

The Supreme Court has jurisdiction because the appeal involves the interpretation and application of Article 162(2)(b) and (3) of the Constitution.

Reasoning

The Court applied the test from Lawrence Nduttu and Joho & another, requiring that the issues in dispute involve a constitutional question that was subject of judicial determination by interpretation or application in the courts below. The record showed that the ELC and Court of Appeal both interpreted Article 162(2)(b) to determine jurisdiction. The Court found that the appeal falls within Article 163(4)(a) as an appeal as of right, requiring no certification.

02

Whether the Court of Appeal erred in holding that the Environment and Land Court had original jurisdiction to hear the 1st respondent's petition despite Section 155 of the Mining Act.

Holding

The Court of Appeal did not err; the ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to hear constitutional environmental rights claims, and Section 155 of the Mining Act does not oust that jurisdiction.

Reasoning

The Court examined the pleadings and found that the dominant issue was the violation of the right to a clean and healthy environment under Article 42 of the Constitution. Section 13 of the ELC Act vests the ELC with expansive jurisdiction over environment and land matters, including mining disputes. The Cabinet Secretary under Section 155 of the Mining Act cannot adjudicate constitutional violations or grant declaratory relief. The Court relied on the principle that where a suit primarily seeks to enforce fundamental rights, the exhaustion doctrine does not bar access to court, especially where the alternative remedy is inadequate.

Legal principles established

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  • The Environment and Land Court has original jurisdiction to hear constitutional environmental rights claims under Article 162(2)(b) of the Constitution.
  • Section 155 of the Mining Act, which provides for alternative dispute resolution before the Cabinet Secretary, does not oust the ELC's jurisdiction over constitutional violations.
  • The 'predominant purpose test' applies: if the dominant issue in a case is a constitutional violation, the exhaustion doctrine does not bar access to court.
  • The availability of an alternative remedy does not prevent a person from seeking constitutional relief if that alternative is inadequate to address the violation.
  • The Supreme Court has jurisdiction under Article 163(4)(a) to hear appeals that involve the interpretation or application of the Constitution.

Court orders

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  1. 1.The Petition of Appeal dated 29th August, 2025 is hereby dismissed.
  2. 2.The petition filed before the ELC should proceed for determination on its merits.
  3. 3.The appellant shall bear the costs of this Appeal.
  4. 4.We hereby direct that the sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal be refunded to the appellants.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No. E142 of 2022
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Declaration that the judgment of the Court of Appeal violated the appellant's constitutional rights

The Court found no error in the Court of Appeal's determination that the ELC had original jurisdiction.

Order setting aside the judgment of the Court of Appeal

The appeal was dismissed and the judgment of the Court of Appeal was affirmed.

Costs

The appellant shall bear the costs of this Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Petition of Appeal dated 29th August, 2025 is hereby dismissed.
p. 10 Final orders - dismissal of appeal
we find no error in the determination by the Court of Appeal, that the ELC, under Article 162 (2)(b) of the Constitution, as read together with Section 13 of the Environment and Land Court Act, has original jurisdiction to hear and determine issues related to Bill of Rights, associated with environment and land disputes in a petition presented before it.
p. 10 Jurisdiction of the Environment and Land Court
that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress.
p. 10 Exhaustion of alternative remedies and constitutional relief
The appellant shall bear the costs of this Appeal.
p. 10 Costs order

Key timeline

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2025-07-18
Court of Appeal affirms ELC jurisdiction over environmental rights claim arising from mining operations.
2025-08-29
Base Titanium Limited files Petition of Appeal to the Supreme Court.
2026
Supreme Court dismisses appeal, upholding ELC jurisdiction and directing the case to proceed on its merits.

Practical implications

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For lawyers

Use ELC for constitutional environmental claims

When drafting pleadings for environmental rights violations, frame the dominant issue as a constitutional claim under Article 42. This ensures the ELC retains original jurisdiction, bypassing the Mining Act's alternative dispute mechanism. The Supreme Court confirmed that the Cabinet Secretary cannot adjudicate constitutional violations, so direct access to the ELC is appropriate.

For businesses

Mining companies cannot evade ELC scrutiny

If your mining operations face allegations of environmental harm, you cannot force complainants to first go to the Cabinet Secretary under Section 155 of the Mining Act. The ELC can hear constitutional claims directly. Ensure your projects comply with Article 42 of the Constitution to avoid litigation that proceeds straight to the Environment and Land Court.

For individuals

Go to court directly for environmental rights

If mining activities harm your right to a clean and healthy environment, you can file a petition at the Environment and Land Court without first complaining to the Mining Cabinet Secretary. The Supreme Court confirmed that the ELC has the power to hear your case and issue remedies, even if the Mining Act suggests another process.

Frequently asked questions

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Can I sue a mining company in Kenya for environmental damage without going to the Cabinet Secretary first?+

Yes, the Supreme Court confirmed that you can file a case directly at the Environment and Land Court if you allege a violation of your constitutional right to a clean and healthy environment under Article 42. The Mining Act's alternative dispute resolution process does not block this.

What is the jurisdiction of the Environment and Land Court in Kenya?+

The ELC has original jurisdiction under Article 162(2)(b) of the Constitution to hear all disputes relating to environment and land, including claims for violation of constitutional environmental rights. This includes mining-related disputes, as confirmed by the Supreme Court in Base Titanium v Kiswili.

Does the Mining Act in Kenya override the Constitution on environmental rights?+

No. The Supreme Court held that Section 155 of the Mining Act, which provides for dispute resolution by the Cabinet Secretary, does not oust the ELC's constitutional jurisdiction. The court can still hear cases where the dominant issue is a violation of the right to a clean and healthy environment.

What is the exhaustion doctrine in Kenyan environmental law?+

The exhaustion doctrine requires a person to use available alternative remedies before going to court. However, the Supreme Court in Base Titanium v Kiswili clarified that this does not apply if the alternative remedy is inadequate to address a constitutional violation, such as a claim under Article 42.

Cite this brief

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Cite this brief

Caselaw, "Base Titanium Limited v Kiswili (Acting on His Own Behalf and on Behalf of 65 others) & 3 others", Case Analysis (2026). Petition E040 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/34/eng@2026-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.