CORTEC MINING COMPANY APPEALS HIGH COURT DECISION THAT RULED IT SPECIAL LICENCE WAS ACQUIRED IRREGULAR.

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Cortec Mining Company Limited Kenya Director Jacob Juma leaving Milimani Law Courts on Friday 19 March 2015 after high court ruled that Cabinet Secretary Najib Balala was right to cancel a licence issued to mining firm Cortec Ltd as it was acquired irregularly.
BY SAM ALFAN.

An international based Kenya based Cortec mining company engaged in mining minerals has moved to court of appeal seeking to set aside the judgment of the high court which discharged its application that sought to quash the decision of the minister to cancel its license.
Cortec mining Kenya limited is aggrieved with the judgment of Justice John Mutungi and now wants the appellate court re-evaluate the decision of the superior court.
The company’s director Jacob Juma, says that the judgment of the high court is flawed and the court did not address the issue as contained in the application for judicial review.
He says that company had been issued with license in 2008 it was only by Cabinet minister Najib Balala last year when it sought its renewal.
There explanation given for the cancellation nor was the company notified as provided for by the law
Juma says that the company had complied with requirements which included environmental Impact Assessment study report for the proposed Mrima Hill niobium and associated rare earth mining.
He argues that the court did not take into account several issues raised in the application.
When the court gave the conservatory order its had been established that there was prima facie case which in the final analysis the judge should have allowed the sought in the application.
Cortec lawyer Nelson Havi had told the court that the mining company had complied with the requirement under the Forest Act and the National Environment Management Authority (NEMA).
The decision of the minister to order the cancellation of the license issued between 14 January and 14 May 2014 was unlawful and ought to be quashed by the court.
Mr Havi submitted that the action by the Cabinet Secretary is amenable to judicial review proceedings, which the applicant has properly applied to have the same set aside.
He said the applicant had made the entire requirement as set out under the mining Act, saying it’s the commissioner of Mining and Geology who ought to summon the management of Cortec if there was none compliant to regulation and rules and not the minister.
High Court on Friday last week ruled that Cabinet Secretary Najib Balala was right to cancel a licence issued to mining firm Cortec Ltd as it was acquired irregularly.
Justice Onesmus Mutungi in his ruling Friday morning stated the firm acquired the licence without following the right procedure.
Cortec had sued Mr Balala for cancelling a licence issued to the firm to mine niobium at Mrima Hills in Kwale.
The company had argued that the decision to cancel the licence was unlawful and that it would lose $600 billion (Sh53 trillion) in investments.
Justice Mutungi said the act by the Commissioner of Mining to issue the licence to the firm amounted to abuse of office.
At one point, Cortec Country Director Jacob Juma claimed that Mr Balala had demanded a Sh80 million bribe from the company.
The company had argued that the decision to cancel the licence was unlawful and that it would lose $600 billion (Sh53 trillion) in investments.
During the hearing Mining Cabinet Secretary Najib Balala was accused of having acted arbitrary when he canceled a license issued to Cortec a mining company, the court has been told.
Justice John Mutungi heard that the minister acted outside his power which is vested upon the commissioner of mining and geology.
Cortec lawyer Nelson Havi said that the mining company had complied with the requirement under the Forest Act and the National Environment Management Authority (NEMA).
The decision of the minister to order the cancellation of the license issued between 14 January and 14 May 2014 was unlawful and ought to be quashed by the court.
Mining Cabinet Secretary Najib Balala maintained that a licence awarded to a Canadian firm was invalid in law, a situation that forced him to revoke it.
Through his lawyer Fred Ngatia, Mr Balala told the High Court on Tuesday that the Cortec Kenya was among 43 firms that had been granted licences by the Commissioner of Mines Richard Keya between January and May last year.
The claim was made in a suit in which Cortec is challenging Mr Balala’s decision to revoke its licence to mine Niobium, which it was expected to start exporting in 2016.
Mr Ngatia told the Court that Cortec had not obtained licences from the National Environmental Management Authority licence and the Kenya Forest Service before applying for the mining licence.
This, according to the CS made the special licence granted to it invalid as it had not conformed to provisions of the Mining Act compelling it to acquire the two licences first.
Cortec told the Court that it only needed to get the NEMA and KFS approvals after being granted the mining licence.
The firm claimed it had received a letter from NEMA and KFS to the effect that it had approved the proposed mining project, but that it would be valid for 24 months from the date it was to commence mining.
“KFS had agreed to write a letter of no objection once some conditions had been met,” Cortec said.
Mr. Havi submitted that the action by the Cabinet Secretary is amenable to judicial review proceedings, which the applicant has properly applied to have the same set aside.
He said the applicant had made all the requirement as set out under the mining Act, saying it’s the commissioner of Mining and Geology who ought to summoned the management of Cortec if there non compliant to regulation and rules and not the minister.
Justice Mutungi heard that there was no failure on the part of the applicant to ensure disobedience of the rules and procedure
Cortec is among the 42 companies whose license were canceled by the government
Basu Company limited also joined the battle but the rival company says it had not

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