Court bars government officials from miners land

Security guard

A security guard checks the temperature of a police officer outside the Mombasa Law Courts on July 9. Many guards have been thrust into the frontline in the battle against Covid-19

Photo credit: File | Nation Media Group

The High Court has temporarily barred the government from interfering with an iron ore mining company’s occupation, use of its land, mined minerals and evicting it by deploying police on the land located in Taita Taveta.

Justice Eric Ogola issued the orders following an application by Samruddha Resources (Kenya) Ltd against Cabinet Secretaries for Petroleum and Mining and Interior, County Commissioner Taita Taveta and the County Police Commander.

The company says it entered into an agreement to license Kishushe Ranching Cooperative Society Ltd in 2014, for the right to enter into the 60,000-acre land and prospect, excavate, store, stack, process, transport and sell all industrial minerals mined.

“It was an express term of the agreement that within 14 days of the lessor (Kishushe) obtaining a lease over the land, it would grant to the company a sublease of the land for 15 years from the date of issuance,” part of the suit documents state.

According to the mining company, the license was varied by a variation agreement dated June 9, 2019, before Kishushe alleged in February, 2020 that it (company) was in breach of the agreement.

Samruddha Resources (Kenya) Ltd said it later engaged Kishushe in discussions with a view to negotiate a settlement.

The company says that on February 17, the CS for Mining wrote a letter requiring it to show cause why its license should not be terminated allegedly on account of non fulfilment of obligations to the community.

Samruddha Resources (Kenya) Ltd says that without any prior notification and purporting to act on the CS’s allegations, security personnel invaded and trespassed on its property on May 30, 2020 to have it vacate.

According to the company, the respondent’s conduct is arbitrary and in abuse of their powers without due regard of the fact that the dispute between it and Kishushe is private and which the court had issued interim conservatory orders.

“The respondents are trespassers onto the petitioner’s property who are intent on depriving it of its proprietary rights protected under the constitution which includes 25,000 tonnes of mined iron ore in excess of $2 million (Sh200 million),” says the company.

Samruddha Resources (Kenya) Ltd also said the respondents have no regard to the rule of law, especially the security personnel who are not empowered to enter onto private property without a lawful court order.

The company says that from the evidence that has emerged, there is an attempt to deprive it of its property in circumstances, which are not sincere, through excessive use and gross abuse of power.

It further says that the respondent’s actions are a serious fundamental violation of the constitution, statutory provisions governing the enforcement of payment of rates and the petitioner’s right and freedom.

Samruddha Resources (Kenya) Ltd is seeking for a declaration that the respondents have no jurisdiction to trespass upon private property and deal with it.

It is also seeking for a permanent order prohibiting the respondents from engaging in any conduct which is inconsistent with its proprietary rights and interest or treating the property as though it was public land.

Samruddha Resources (Kenya) Ltd is also seeking for compensation for unlawful interference with its proprietary rights, development of its property, use and occupation.