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Court of AppealDismissedCourt of Appeal at Mombasa, appeal from ELC Petition No. 3 of 2021

Base Titanium Limited v Kiswili (On Behalf of 65 others) & 3 others (Civil Appeal E142 of 2022) [2025] KECA 1330 (KLR)

Court of Appeal of Kenya
18 July 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
5,924 words in judgment
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The bottom line

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The Court of Appeal confirmed that Kenyans can take mining-related environmental complaints directly to the Environment and Land Court without exhausting other procedures first.

What this practically means

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Executive summary

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Base Titanium Limited appealed against a ruling of Dena, J. in the Environment and Land Court at Mombasa (Petition No. 3 of 2021) dismissing its notice of motion seeking to strike out a constitutional petition filed by Michael Kiswili and 65 others. The residents alleged that the appellant's titanium mining operations in Kwale County, carried out under a 2016 mining licence, violated their right to a clean and healthy environment through noise, dust and water contamination, and sought declarations, environmental restoration, and revocation of the EIA licence and mining licence. The appellant contended that section 155 of the Mining Act conferred first-instance jurisdiction over wrongful acts committed in the course of mining on the Cabinet Secretary, Mining, leaving the superior court with only appellate jurisdiction, and that the respondents had failed to exhaust internal mechanisms under section 129 of EMCA. The 3rd respondent raised a parallel preliminary objection on exhaustion. The Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJA) characterised the petition as a 'mixed grill' dispute cutting across the ELC, the CS Mining and the National Environment Tribunal. Reviewing the predominant purpose test, the predominant issue test, and the Supreme Court's nuanced approach in Nicholus v Attorney General, the Court held that the dominant prayer was the declaration of infringement of the right to a clean and healthy environment under Articles 42, 69 and 70, which lies within the ELC's original jurisdiction under Article 162(2)(b) and sections 3(3) and 13 of the ELC Act and EMCA. The exhaustion doctrine did not bar the petition. The appeal was dismissed with costs to the 1st respondent.

Questions the Court framed

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

  1. 1.Whether the trial court correctly found that it had jurisdiction to determine the issues before it
  2. 2.Whether the ELC had original jurisdiction to entertain the constitutional petition, or whether section 155 of the Mining Act vested first-instance jurisdiction over the dispute in the Cabinet Secretary, Mining
  3. 3.Whether the 1st respondents were bound first to exhaust the internal dispute resolution mechanisms under section 129 of EMCA and the Mining Act before moving to the ELC

Key legal issues

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01

Jurisdiction of the ELC over environmental rights petitions involving mining activities

Holding

The ELC has jurisdiction. The dispute as pleaded was a mixed or 'multi-faceted' one cutting across the ELC, the CS Mining and the National Environment Tribunal, but the dominant prayer was a declaration of violation of the right to a clean and healthy environment, which falls within the ELC's original jurisdiction under Article 162(2)(b) of the Constitution, section 13 of the ELC Act and section 3(3) of EMCA.

Reasoning

Article 162(2)(b) empowers Parliament to establish courts to hear disputes relating to the environment and land, and section 13(3) of the ELC Act expressly preserves the ELC's power to hear applications for redress of violations of Articles 42, 69 and 70. Section 3(3) of EMCA specifically grants a person alleging a threatened or actual violation of the right to a clean and healthy environment the right to apply to the ELC. Applying the 'predominant issue' approach, the dominant prayer was the environmental-rights declaration; once the petition raised constitutional issues, the CS Mining was divested of jurisdiction.

p. 11
02

Exhaustion of alternative dispute resolution mechanisms

Holding

Although the exhaustion doctrine ordinarily requires a party to pursue statutory remedies first, it does not bar a litigant from seeking constitutional relief where the dominant claim is enforcement of a fundamental right and the reliefs sought (declarations of rights infringement) cannot be granted by the alternative organs such as the CS Mining or NEMA.

Reasoning

The court traced the three schools of thought on mixed disputes: the 'predominant purpose' test (Butler v Redhill Heights), the 'predominant issue' test (Lydia Nyambura Mbugua; Co-operative Bank v Njuguna), and the Supreme Court's nuanced approach in Nicholus v Attorney General that the availability of an alternative remedy does not necessarily bar constitutional relief if that remedy is inadequate. Following Nicholus and Mugendi, the court held that where a suit primarily seeks to enforce fundamental rights and is not a mere 'bootstrap', the exhaustion doctrine is no bar. The declaratory reliefs sought here could only be granted by the ELC.

p. 8
03

First appellate court's duty on facts

Holding

As a first appellate court, the Court re-examined the record and could depart from the trial court's findings only where they were not based on the evidence, were founded on wrong principles of law, or where discretion was exercised injudiciously.

Reasoning

Citing Jabane v Olenja and Mbogo v Shah, the court restated the standard of interference on a first appeal before concluding that nothing had been shown to fault the learned Judge's finding that the dominant prayer was the environmental-rights declaration and that the ELC was the proper forum.

p. 4

Legal principles established

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  • The ELC has original jurisdiction to determine constitutional petitions seeking redress for denial, violation or infringement of, or threat to, the right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution, even where the underlying dispute also touches on mining operations governed by the Mining Act.
  • Where a petition is a mixed or multi-faceted dispute, the court determines jurisdiction by identifying the dominant issue in the pleadings; where the dominant issue is the enforcement of environmental rights, the CS Mining and other alternative fora are divested of jurisdiction.
  • A party alleging infringement of a constitutional right who makes it clear that the issues fall within the ELC's original jurisdiction is not barred by the exhaustion doctrine from approaching the ELC.

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st respondent

The bench

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

AM
majority

Wrote the judgment

KL
majority

Wrote the judgment

GN
majority

Wrote the judgment

On appeal from
Environment and Land Court at Mombasa
Petition No. 3 of 2021
Jurisdiction invoked
First appeal to the Court of Appeal from the Environment and Land Court (Article 164 of the Constitution; rule 31(1) of the Court of Appeal Rules, 2022 applied for re-examination of evidence)

Relief refused

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Setting aside of the ruling and order of Dena, J. dated 10th February 2022 and the upholding of the appellant's jurisdictional objection

The ELC has jurisdiction over constitutional petitions seeking redress for denial, violation or infringement of the right to a clean and healthy environment; the dominant prayer was such a declaration, so the petition was properly before the ELC.

p. 11

Costs

Appeal dismissed with costs to the 1st respondent.

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.

In the premises, we find that the appeal is unmerited and hereby dismiss it with costs to the 1st respondent.
p. 11Final orders - dismissal of the appeal
The jurisdiction of the ELC is therefore settled to the efiect that it has the mandate to determine constitutional petitions where a party seeks redress for denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
p. 6ELC's jurisdiction over environmental-rights petitions
In this case, the dispute as pleaded in the petition before the ELC was one which cross-cut the jurisdiction of the ELC, CS, Mining and the National Environment Tribunal. In other words, it was one which can be referred to as a ‘cocktail or a ‘multi -faceted’ or a ‘mixed grill’ dispute.
p. 6Characterisation of mixed-jurisdiction disputes
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.
p. 11Conclusion on jurisdiction
It was therefore suficient that the 1st respondents alleged that a right under the Constitution had been infringed or threatened with violation, made it clear that, in light of the provisions of the Constitution and the ELC Act, the issues raised fell within the original jurisdiction of the ELC.
p. 10Exhaustion doctrine and constitutional petitions

Issues in the judgment

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minor

The appellant's memorandum of appeal refers to the case as 'Mutunga Tea & Coffee Company Ltd vs. Shikara Ltd', while the submissions refer to 'Mutanga Tea & Coffee Company Ltd vs. Shikara Limited', an apparent internal inconsistency in the name of the same authority.

minor

The record inconsistently describes the ELC below as 'the High Court' in the memorandum of appeal ('the High Court lacks jurisdiction to hear the dispute at first instance') notwithstanding that the petition was filed in the Environment and Land Court.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Base Titanium Limited v Kiswili (On Behalf of 65 others) & 3 others (Civil Appeal E142 of 2022) [2025] KECA 1330 (KLR)", Case Analysis (2025). Court of Appeal at Mombasa, appeal from ELC Petition No. 3 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1330/eng@2025-07-18

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