Rarieda Artisinal Miners Savings and Credit Co-operative Society Ltd & another v Amlight Resources Company Limited & 5 others; National Environmental Management Authority & 2 others (Interested Party); Nicholus (Intended Interested Party) (Environment and Planning Petition 1 of 2024) [2025] KEELC 4544 (KLR)
The bottom line
#A Siaya court reinstated two joinder applications but ultimately rejected both would-be interested parties and refused to review earlier conservatory orders in the Rarieda mining dispute.
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 court should set aside the orders of 18th September 2024 and reinstate the applications dated 20/9/2024 and 30/9/2024 (seeking reinstatement of the applications dated 20/5/2024 and 22/5/2024) for hearing on merit
- 2.Whether the 1st and 2nd intended interested parties should be joined to these proceedings as interested parties
- 3.Whether the applicants have met the requirements for the grant of review of the orders made via the ruling dated 20/06/2024 and whether the petitioners should be ordered to deposit security
Key legal issues
#Reinstatement of applications dismissed for non-attendance
Both reinstatement applications were allowed; sufficient cause was shown
Order 12 Rule 7 confers a discretionary power to set aside dismissal orders, to be exercised judiciously. Abidha produced medical evidence of bed rest uploaded on the CTS, and the application had been coming up for the first time; the court gave him the benefit of the doubt. Owalla, a litigant in person facing virtual-platform connectivity challenges, benefited from the Article 48 right to be heard. The court weighed prejudice and found none outweighing the right to be heard.
Joinder of interested parties in a constitutional petition
Both joinder applications dismissed
Under the Mutunga Rules and Muruatetu, an applicant must show a clearly identifiable, proximate stake and demonstrated prejudice from non-joinder. The individual petitioners in PET No. 2, hailing from the affected area, already capture broader community interests, negating claims of intimidation. Owalla produced no proof of CIAG-K's legal existence. Contrary to Abidha's submission, an applicant for joinder in a constitutional petition must still show interest.
Whether a Notice of Appeal bars an application for review
It does not; the review application was properly before the court
Applying the Court of Appeal's decision in Multi Choice (Kenya) Limited v Wananchi Group, an appeal is only instituted upon compliance with Rule 82 of the Court of Appeal Rules; a mere Notice of Appeal is not an appeal for Order 45 purposes. Since no Memorandum of Appeal or Record of Appeal was filed, the review application was properly before the court.
Review of the conservatory orders and security for damages
Application for review dismissed; the grounds disclosed were grounds of appeal, not review
The licences relied on post-dated the ruling and were in the applicants' own knowledge, so there was no discovery of new matter. Complaints that the court failed to peg timelines or quantify the undertaking attack the merits and belong on appeal. Fresh arguments and a valuation report amount to re-opening a decided application, which review does not permit. The validity of the licences is a substantive issue for the full hearing.
Legal principles established
#- Sickness constitutes sufficient cause warranting the exercise of the court's discretion to set aside an order of dismissal for non-attendance
- An interested party must demonstrate an identifiable stake or interest and cannot introduce new issues into proceedings
- A Notice of Appeal is not an appeal for purposes of Order 45 review; the court retains jurisdiction to entertain review where only a notice of appeal has been lodged
- Review is not a forum for re-opening a case for fresh argument or for complaining about the merits of the decision
Court orders
#- 1.The Notice of Motion dated 20/09/2024 is hereby allowed with no orders as to costs
- 2.The Notice of Motion dated 30/09/2024 is hereby allowed with no orders as to costs
- 3.The Notice of Motion Application 20/05/2024 is dismissed with no orders as to costs
- 4.The Notice of Motion dated 22/05/2024 is dismissed with no orders as to costs
- 5.The Notice of Motion dated 16/08/2024 is hereby dismissed and costs shall abide the outcome of the consolidated petitions
- 6.The order of dismissal of the applications dated 20/5/2024 and 22/5/2024 is set aside and the said applications are reinstated for hearing and determination on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 45 of the Civil Procedure Rules
- Consolidated with
- ELC EP Petition 2 of 2024
Relief refused
#Joinder of Abidha Nicholus as an Interested Party
He failed to demonstrate a clearly identifiable and proximate stake or prejudice from non-joinder; community interests are already represented by the individual petitioners in PET No. 2 of 2024
Joinder of Chrisphine Omollo Owalla / CIAG as an Interested Party
No evidence that CIAG-K exists in law; no registered trust deed produced; threshold for joinder should not be too low
Review of the orders of 20/06/2024 and direction to deposit Kshs. 350,000,000 as security
No discovery of new matter (the licences post-date the ruling), no error apparent on the face of the record, and the complaints raised are grounds for appeal not review
Costs
The reinstatement applications (20/09/2024 and 30/09/2024) and the dismissed joinder applications (20/05/2024 and 22/05/2024) each attracted no orders as to costs; on the application dated 16/08/2024 costs shall abide the outcome of the consolidated petitions.
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.
The upshot of the foregoing is that I find that suficient reason has been led to warrant the exercise of the courts discretion in favor of the applicants. Consequently, I set aside the order of dismissal of the applications dated 20/5/2024 and 22/5/ 2024 and reinstate the said applications for hearing and determination on merit.
The Notice of Motion dated 16/08/2024 is hereby dismissed and costs shall abide the outcome of the consolidated petitions.
Sickness in my view is a suficient reason or cause to warrant the exercise of the court discretion in his favor.
Environmental justice cannot be a blank cheque for allowing any organization joinder.
It is trite that review is not a forum to open a case or application for fresh argument.
In any event a Notice of Appeal for purposes of review proceedings is not an appeal.
While the lawyers have several platforms through which they may be assisted, litigants appearing in person may be limited in this regard. Again, I’m inclined to exercise my discretion to further the rights to hearing as envisaged under Article 48 of the Constitution.
Issues in the judgment
#The application dated 16/08/2024 is referred to in the analysis heading as dated 16/08/2025
Paragraph 132 refers to the application as dated 16/08/2025 in two places
The judgment states the intended interested parties' applications did not indicate the statutory provisions under which they were filed, though it elsewhere notes they were brought under sections 1A, 1B of the Civil Procedure Act
Court recording error on the date of the application dated 30/09/2024, which was sometimes referred to as dated 22/09/2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rarieda Artisinal Miners Savings and Credit Co-operative Society Ltd & another v Amlight Resources Company Limited & 5 others; National Environmental Management Authority & 2 others (Interested Party); Nicholus (Intended Interested Party) (Environment and Planning Petition 1 of 2024) [2025] KEELC 4544 (KLR)", Case Analysis (2025). ELC EP Petition 1 of 2024 (consolidated with ELC EP Petition 2 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4544/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.