Kenya’s mining sector continues to expand, bringing with it increased regulatory scrutiny and a growing number of disputes before the Environment and Land Court (ELC). While obtaining a mineral right under the Mining Act, 2016 (Cap. 306) is a critical first step to commencing extraction of minerals, recent litigation demonstrates that licensing alone does not insulate operators from legal liability.
Common issues before the ELC show the conflict between mineral rights and land rights. Arising areas of conflict include:
- Infringement of landowners’ and lawful occupiers’ rights.
- Complaints of environmental degradation attributed to mining activities.
- Interference with the rights and interests of host communities.
- Attempts to bypass the statutory licensing framework through private contractual arrangements.
These disputes demonstrate that mining projects are increasingly being scrutinised not only for their commercial viability, but also for their compliance with Kenya’s constitutional, environmental and mining laws.
Although Article 62(1)(f) of the Constitution and sections 6, 7 and 10 of the Mining Act, 2016 vest all minerals in the National Government, this does not automatically entitle the government or its licencees to disregard the rights of landowners or lawful occupiers. Mining companies must secure lawful access to land, provide value to host communities, comply with compensation requirements for landowners and land user right and appreciate that land ownership and mineral rights are separate legal interests. Failure to properly address these issues frequently results in orders from the Court that halt operations before extraction even begins.
Environmental degradation
Environmental degradation is a significant source of litigation. Complaints relating to dust emissions, pollution of rivers and groundwater, excessive noise, blasting vibrations and failure to rehabilitate mined land continue to feature prominently before the ELC. The Mining Act, 2016, Cap. 306 particularly Part IX, requires mineral right holders to conduct operations responsibly, minimise environmental harm and rehabilitate land affected by mining. These obligations operate alongside the Environmental Management and Co-ordination Act, 1999 (EMCA), under which operators are expected to obtain the requisite environmental approvals and continuously monitor the environmental impacts of their operations.
The courts have equally demonstrated that environmental compliance cannot be treated as a one-off exercise completed during project approval. In the case of Base Titanium Limited v Kiswili (suing on behalf of 65 others) & 3 Others [2025] KECA 1330 (KLR), the Court of Appeal affirmed that claims alleging dust pollution, contamination of water sources, excessive noise and other environmental impacts arising from mining activities fall squarely within the jurisdiction of the Environment and Land Court. The decision reinforces the principle that mining operators remain accountable for the environmental consequences of their activities throughout the life of a project, notwithstanding the existence of a valid mining licence.
Host community disputes
Community-related disputes have also become increasingly prevalent. Mining projects often affect access to land, water resources and traditional livelihoods, making meaningful stakeholder engagement an essential component of legal compliance. The Mining Act requires applicants for mineral rights to provide information relating to the proposed operations, including their anticipated environmental and social impacts. Companies that fail to engage affected communities meaningfully frequently encounter constitutional petitions, compensation claims and project delays that could have been avoided through early consultation and transparent grievance resolution mechanisms.
The decision in Krystalline Salt Limited & 3 Others v Cabinet Secretary, Ministry of Mining and Petroleum & Another [2023] KEELC 11 (KLR) illustrates the courts’ strict approach to statutory compliance. The Environment and Land Court affirmed that extractive activities falling within the scope of the Mining Act, 2016, Cap. 306 must comply with the licensing and regulatory framework established under the Act, and that parties cannot rely on private arrangements to circumvent statutory requirements. The decision underscores the importance of ensuring that mining operations are legally structured from inception and remain compliant throughout their duration.
From a risk management perspective, mining companies should adopt a compliance strategy that extends beyond obtaining regulatory approvals. This includes conducting comprehensive legal and environmental due diligence before acquiring mining interests, establishing effective environmental monitoring systems, maintaining open engagement with affected communities, implementing mine rehabilitation plans from the outset and periodically reviewing compliance with licence conditions and statutory reporting obligations. These measures not only minimise exposure to litigation but also strengthen investor confidence and promote the long-term sustainability of mining operations.
As environmental jurisprudence continues to evolve, the Environment and Land Court has made it increasingly clear that sustainable mining requires more than technical expertise or commercial investment.
Author: Brian Muthangya Nzomo, Legal Intern
July, 2026