Muthama firm fails to stop gemstone export permits directive

A gemstones firm associated with former Machakos Senator Johnstone Muthama has failed in its bid to stop the implementation of a new directive that requires miners to seek export permits from the Mining Cabinet secretary instead of the Director of Mines.

The company, Rockland Kenya Limited, wanted the court to issue temporary orders halting any further implementation of the directive issued by the Cabinet secretary on September 7, 2017, referenced Processing of Export Permit.

It claimed the minister was out to frustrate its business operations and that the delay in processing the export permit has resulted in a violation of its right under Article 40(2)(a) of the Constitution, which forbids the enactment of any law that arbitrarily deprives a person of property or interest.

The firm wanted the temporary orders pending the hearing and determination of a constitutional petition it has filed challenging the legality of the directive.

But High Court judge Anthony Mrima refused and said although the firm has an arguable case, it did not demonstrate it had made an application for the export permit to the Cabinet secretary under the disputed directive and the application had been declined.

“The petitioner instead took a position that it cannot make the application to the Cabinet secretary, but only to the Director of Mines since that is what it understands the law (Mining Act) to require,” said the judge.

In addition, he found that the company did not tender any evidence that it is currently involved in active extraction of the minerals in Kenya and if so, where.

The firm also failed to prove that it has a ready export market and how the failure to export the minerals is affecting it.

“There is, therefore, no proof of any loss the company is likely to suffer if the orders are not granted and the matter is instead fully heard. The loss, if any, will have to be ascertained at the hearing of the main petition,” ruled Justice Mrima.

The case will be mentioned on February 2, 2022, for directions.