A mining company yesterday suffered a major setback after the High Court upheld the decision of Cabinet Secretary Najib Balala's order to revoke its licence.
Justice John Mutungi said Balala has a duty to preserve public interest and is entitled to revoke the licence.
He said the acquisition of the mining licence by Cortec was not in compliance with the law.
“The minister is empowered to revoke the licence where there is breach in issuance. He acted lawfully,” Mutungi said.
The judge said the commissioner of mines abused his office and Balala had to step in and ensure due process was followed.
“The commissioner neglected to perform his duties by giving an invalid licence. He acted in breach of the Mining Act and constitution and in breach of public trust,” he said.
Mutungi said the commissioner of mines could not issue a proper mining licence as the area was protected by the Kenya Forest Service and no consent had been issued by the National Museums of Kenya.
The judge also dismissed an argument by Cortec in which it claimed it was being sidelined.
He said 42 other licences have also been revoked and Cortec is not being targeted.
Mutungi said if Cortec was aggrieved by the CS’s decision, it should have appealed rather than review the merits of the verdict by instituting judicial review proceedings
The judge said KFS, the National Museums and National Environment Management Authority had to give a consent before any licence was issued.
Nema and KFS denied that Cortec had obtained consent from them.
Balala cancelled licences for Cortec Mining and other companies on grounds that they were irregularly awarded.
Cortec was allegedly licensed to mine niobium and rare earth metals at Mrima Hills, Kwale county, an area believed to contain minerals in excess of $600 billion.
Cortec director Jacob Juma had initially said Balala demanded Sh80 million bribe from the company.