Base Titanium has suffered a legal setback after the Court of Appeal dismissed its challenge against a petition filed by residents of Mivumoni B village in Kwale, who accuse the company of polluting their environment during its mining operations.

The petition, lodged by Michael Kiswili and 65 others on February 10, 2022, seeks a court declaration that their constitutional right to a clean and healthy environment has been violated.

The case was first heard by Justice Addraya Dena, who rejected Base Titanium’s bid to have it struck out, affirming the Environment and Land Court’s (ELC) jurisdiction under Article 162(2)(b) of the Constitution and relevant sections of the Environment and Land Court Act.

Base Titanium appealed the ruling, arguing that the matter should fall under the purview of the Cabinet Secretary for Mining and that the courts could only intervene on appeal from the CS's decision.

However, Appellate Justices Agnes Murgor, K. Laibuta, and Ngenye Macharia dismissed the argument, holding that the ELC has original jurisdiction to hear and determine constitutional petitions relating to environmental rights.

“After examining the relevant legal provisions and precedents, we find that the Environment and Land Court is properly seized of jurisdiction to address the constitutional issues raised,” said Justice Murgor in the ruling.

The court noted that the villagers were not attempting to halt mining operations altogether but were seeking accountability for environmental degradation allegedly caused by the project.

Justice Murgor added that once constitutional questions are raised, such matters fall outside the jurisdiction of the Cabinet Secretary.

“Constitutional petitions are unique in that they seek redress for rights violations, and the courts are the appropriate forum for such determinations under the Constitution and the ELC Act,” she said.

Kiswili’s petition, filed on March 18, 2020, demands that the court find Base Titanium in violation of their right to a clean environment and compel the company to undertake environmental restoration.

The villagers also want NEMA to revoke the company’s Environmental Impact Assessment (EIA) license.