The State and a minerals prospector who had been ordered to pay a ranching firm Sh28 million have won a reprieve, after a judge suspended the execution of the judgment and decree, pending a hearing and determination of an appeal.
Environment and Land Court Judge Edward Wabwoto issued the order on condition that Ms Lillian Mutua, trading as Lillian M Gems deposits Sh5 million as security, in a joint interest-earning account of Kasigau Ranching (DA) Company Ltd and her advocates within 30 days.
The judge ruled that failure by Ms Mutua to comply with the payment of security, the suspension of execution of the judgment shall automatically lapse.
“I note that if the respondents were to execute the decree, it would render the appeal nugatory as she (Ms Mutua) would have been removed from the land, this is a case for grant of stay of execution pending appeal,” ruled Justice Wabwoto.
The judge noted that Ms Mutua submitted on her willingness to offer security for costs and even submitted that she was willing to comply with whatever terms of security that the court would direct.
Through her lawyer, Ms Mutua had urged the court to allow her application for a stay of execution of the judgment saying she had met and demonstrated requirements for it to be allowed.
Kasigau Ranching (DA) Company Ltd had opposed the application by Ms Mutua.
In October last year, Kasigau Ranching (DA) Company Ltd was awarded Sh15 million as general and exemplary damages to be paid by Ms Mutua (Lillian M Gems), and the State after the court ruled that a mining permit had been illegally issued.
The court also ordered Ms Mutua to pay Kasigau Ranching Sh13 million as restoration and conservation damages.
This, the court ruled, will be used in the rehabilitation, restoration, and decommissioning of the mining location No. 149/1-10 Machungwa “A” Kasigau Ranch, under the supervision of the National Environment and Management Authority.
The court noted that it had perused Kasigau Ranch’s letter to the Cabinet Secretary for Mining seeking the revocation of the mining permit issued to Ms Mutua for lack of consent from the land owner as stipulated in the Mining Act.
It said that the CS received that letter on December 4, 2018, which was a month after issuing the mining permit to Ms Mutua on November 7, 2018.
“Once the Cabinet Secretary became aware of the plaintiff's rejection of the mining activities of the fourth defendant (Ms Mutua) on their land, there ought to have been a suspension of the permit as stated in Condition 22 of the mining permit for failing to meet the obligation of consent from the land owner,” ruled Justice Stephen Kibunja.
Justice Kibunja noted that the CS ought to have called all parties concerned and resolved the dispute.
“The first defendant (CS) neither revoked nor suspended or cancelled the mining permit issued to the fourth defendant despite the glaring protests from the plaintiff (Kasigau Ranch),” ruled Justice Kibunja.
He further ruled that it was clear to the court that the plaintiff is the registered proprietor of the land, 21,186 hectares where the mining areas are located.
The judge said that the court was satisfied that the land belonged to the plaintiff since their registration and proprietorship had not been disputed thus as the absolute and indefeasible owner of the property, it was conferred with all the rights and privileges accruing.
The court further ruled that the actions of the fourth defendants of mining on the ranch without the consent of the plaintiff amounted to trespass.
It also ruled that having found that the fourth defendant is guilty of trespassing onto the plaintiff’s land, it is no brainer that they denied the plaintiff from using, occupying, possessing, and enjoying it.
Justice Kibunja ruled that Ms Mutua should bear the costs of rehabilitating, reclaiming, and decommissioning the mining locations.
