By Court Reporter
The Australian Base Titanium mining company has suffered a major blow in the Kwale land and environmental court after their application to strike out Nguluku-Maumba farmers case before the court was dismissed.
The ELCLC/E0632024-Gideon Masyuki versus Base Titanium Kenya Limited
case involves thousands of farmers who were displaced between 2006-2007 to pave way for major mining activities in Nguluku and Maumba villages.
Through Omurwa advocates law firm the farmers claimed that Base Titanium without compensating them evicted and took possession of the suit property.
In their application, the farmers say that they have been denied access to their land, rendered homeless and destitute.
That Base Titanium mining company and its agents utilized and extracted minerals the suit property without compensating the farmers in a clear violation of the rights enshrined in Article 40 (1) of the constitution 2010 and provision of the mining act.
Base Titanium had filed a preliminary objection challenging the jurisdiction of the Kwale land and environment court in hearing the case pursuant to provision of section 153,154 and 155 of the mining Act 2016.
“That the plaintiff contravenes the mandatory provisions of order 4 rule 3 of procedure rules, the court has no subject matter over which can exercise jurisdiction consequently any order will be granted in vein, in view of court of the appeal decision civil case number 2 of 2008 Anthony Gachara Ayub verses Francis Mahinda. Base Titanium in its notice of motion application dated 6/12/2024 sought to have the plaintiff application made on 30/9/2024 by be struck out,” the court heard.
The farmers through their lawyer had applied for a temporary injunction order, awaiting for the outcome of the court order 40 supported by the affidavit of Masyuki Mutisya.
They also challenged the preliminary objection application by Base Titanium on February 2025 claiming that it was meant to drive away 179 litigants whose suit is raising triable which will occasion travesty of justice.
“The defendant application merely raises procedural technicalities with the clear aim of defeating substantive justice,” the court had heard before the ruling.
In his ruling on Thursday 3 April 2025 Justice Naikun said that after both parties submitted their applications the court had time to deliberate.
“Where the preliminary objection has met the legal threshold based on law and precedent and whether this court has the jurisdiction to entertain instant suit and applications, whether the suits have any merits, whether application have met threshold or warrant, granting injunctive orders pursuant to provision of order 40 of the civil procedure rules and who is going to bear the cost of the suit,” he said.
He said that the preliminary objection dated 31 January 2025 by Base Titanium was dismissed for lack of merit.
“That the notice of motion application dated 30 /9/2024 by the plaintiffs found to have merits and therefore allowed. In the sense that the honorable court proceeds to grant injunctive orders sought from that application,” ruled the judge.
He also dismissed a notice of motion dated 6/12/2024 by the defendants for lack of merits with the cost of both preliminary objection and the application being awarded to the plaintiffs.
Hon. Mr. Justice Naikun Lucas Leperes set pre-trial mention to be on 25/6/2025 and hearing,29/10/225.
The farmers welcomed the court decision saying that it is a win for the farmers who have suffered after being pushed out of their land over 18 years ago.
They said that they will have a chance to raise their voices and evidentially show the world how their rights were infringed and forced to live a pauper life.
Base Titanium ended mining activities on December 31 2024.
