Masyuki (Suing on Behalf of 179 others) v Base Titanium Kenya Limited (Environment & Land Case E063 of 2024) [2025] KEELC 3244 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear mining land disputes and stopped Base Titanium from mining disputed Kwale land pending trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection has met the legal threshold based on law and precedents
- 2.Whether the Court has jurisdiction to entertain the instant suit and application
- 3.Whether the Plaintiffs have met the threshold to warrant granting of the injunctive orders sought
- 4.Who bears the costs of the suit
Key legal issues
#Whether the preliminary objection on jurisdiction under Sections 153, 154 and 155 of the Mining Act, 2016 was sustainable
The preliminary objection failed. The word 'may' in Section 154 is permissive, not mandatory, and does not oust the ELC's jurisdiction; the ELC has original jurisdiction under Article 162(2)(b) and Section 13(1) of the ELC Act over matters under the Mining Act.
The court followed its earlier decision in Kavii v Base Titanium Limited, holding that Section 154(c) gives litigants several options including a court of competent jurisdiction. Applying Mativo J's exposition on 'shall' versus 'may', the court found the Mining Act provisions permissive and not an express ouster of the ELC's jurisdiction, which is constitutionally grounded.
Whether the Plaint sufficiently described the suit property under Order 4 Rule 3 of the Civil Procedure Rules
The suit property was sufficiently described as unregistered land in Nguluku-Maumba measuring about 4000 acres, and the cause of action was disclosed.
The court held the Defendant was reading Order 4 Rule 3 in isolation rather than in the wider context of the overriding objective. The gist of the suit was the Defendant's mining activities without compensation, and it was not disputed that the Defendant carries out activities at Nguluku-Maumba. Whether the land is community land is a substantive issue for trial.
Whether the 1st Plaintiff had authority to act for the other Plaintiffs
An annexure bearing the names and signatures of the other Plaintiffs constituted sufficient evidence of authority for a representative suit.
The court declined to belabour the point, having seen an annexure with the names and signatures of the remaining Plaintiffs attached to the affidavit, which it found to be enough evidence of authority to act on behalf of the others as required by law.
Whether the Plaintiffs met the Giella threshold for a temporary injunction
All three Giella conditions were satisfied: a prima facie case with probability of success, potential irreparable injury not compensable by damages, and the balance of convenience tilting towards the Plaintiffs.
The Plaintiffs produced certificates of title and evidence of occupation, and of the Defendant's mining activities without compensation and amid claims of forceful eviction. The court found a prima facie case, held that preservation of the suit property was imperative to avert uncompensated loss, and found the balance of convenience favoured granting the injunction as the lower-risk course.
Legal principles established
#- Sections 153, 154 and 155 of the Mining Act, 2016, which use permissive language, do not expressly oust the jurisdiction of the Environment and Land Court over disputes arising from mining activities
- Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act vest the ELC with original and appellate jurisdiction over matters handled under the Mining Act
Court orders
#- 1.The Preliminary Objection dated 31st January 2025 be and is hereby dismissed
- 2.The Notice of Motion application dated 30th September 2024 by the Plaintiffs/Applicants be and is hereby found to have merit and thus is allowed
- 3.Pending the hearing and determination of the suit, a temporary injunction is issued against the Defendants restraining them, their agents or any other persons claiming through them from trespassing, mining and/or dealing with all that unregistered land situate in Nguluku-Maumba measuring 4000 acres or thereabout (the suit property)
- 4.The Notice of Motion application dated 6th December 2024 by the Defendants be and is hereby found to lack merit and thus dismissed
- 5.Mention on 25th June 2025 for Pre-Conference under Order 11 of the Civil Procedure Rules, 2010 and thereafter a hearing date on 29th October 2025 by physical means
- 6.Costs of both the Preliminary Objection and the application awarded to the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13(1) of the Environment and Land Court Act, No. 19 of 2011
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That pending the hearing and determination of this suit, a temporary injunction is hereby issued against the Defendants restraining it either by themselves, their agents or any other persons claiming through it from trespassing, mining and or dealing whatsoever with ALL THAT unregistered land situate in Nguluku-Maumba measuring 4000 acres or thereabout
That the Preliminary Objection dated 31st January 2025 be and is hereby dismissed.
It is this court’s finding that it has the jurisdiction to handle this suit and the preliminary objection is thus dismissed.
That the Notice of Motion application dated 6th December 2024 by the Defendants be and is hereby found to lack merit and thus be dismissed.
That the costs of both the Preliminary Objection and the application to be awarded to the Plaintifis.
Issues in the judgment
#The judgment does not state the case number of the suit before the court; only the dates of the Plaint and applications (30th September 2024 and 6th December 2024) are given.
Internal inconsistency in the description of the Plaintiffs' application date: the introduction refers to an application dated 6th October, 2024 while the body and final orders refer to the Defendants' application dated 6th December, 2024.
The court states it is the 'High Court' in the conclusion, although the coram identifies the court as the Environment and Land Court at Kwale.
The notice of preliminary objection is described as dated both 31st January 2025 in the body, and the filing dates of applications are inconsistently recited (a ruling date 'reserved on 18th March, 2024' though proceedings occurred in 2025).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masyuki (Suing on Behalf of 179 others) v Base Titanium Kenya Limited (Environment & Land Case E063 of 2024) [2025] KEELC 3244 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 30th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3244/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.