Court blocks Canadian firm's US$ 116 m titanium venture
The Daily Nation (Kenya)
September 22, 2001
By FRANCIS THOYA
The Sh9 billion titanium mining project in Kwale district has been halted. High Court judge Andrew Hayanga, sitting in Mombasa yesterday, said the project should not continue as it was likely to have adverse effects on the environment.
"By granting the injunction, this court will be saving the public from a possible environmental degradation. Hence the applicant (farmers) have made a case that warrants an injunction," he said.
Justice Hayanga said it was doubtful that Tiomin Kenya Limited, a Canadian firm seeking to mine the mineral in Kwale district, had presented its project report to the government.
Such a report is vital before the government sanctions any environmental impact assessment (EIA) presented by a prospecting company.
Yesterday's decision appears to be a stab at the government, which for some time has been making attempts to assist the Canadian firm resolve some of the problems dogging the project.
President Moi, in his recent tour of Coast province, promised to convince Tiomin Kenya Limited to re-negotiate the thorny issues of compensation and resettlement. But he was silent on the environmental concerns raised against the project.
Several environmentalists have objected to mining of titanium, saying it would impact negatively on the environment. In particular, local and external environmentalists have argued that the project would expose the flora and fauna to high levels of radiations.
Environmentalists' reports indicate that Kwale has traces of radioactive compounds, such as uranium and thorium.
Yesterday afternoon's ruling is a set-back to Tiomin Kenya Limited Titanium project, which was eager to proceed with full-scale prospecting in Maumba and Nguluku.
It will lead to further costs to the company, which is already claiming that it has incurred losses amounting to Sh546,000,000 (about $7m) since February when a temporary injunction was issued.
Justice Hayanga's decision was prompted by an application by Tiomin Kenya Limited, which sought lifting of the February injunction, arguing that it was irregular. Further, it said the injunction was making it incur heavy loses.
Scores of farmers from Maumba and Nguluku, represented by lawyer Gikandi Ngibuini, had sought High Court redress challenging the project.
They said the compensation offered, a total of Sh11,000 per acre per year, offer by Timoin Kenya Limited was inadequate. Besides, they objected to moving out of Maumba and Nguluku – areas earmarked for mining – on grounds that Tiomin Kenya Limited had not put out a proper relocation plan.They also took issue with the EIA prepared by the company, saying it down-played issues.
When the temporary injunction was issued, Tiomin Kenya Limited had already shifted heavy equipment to the site in readiness for prospecting activities.
Yesterday, in his one-hour ruling, delivered yesterday afternoon, Justice Hayanga said that although Tiomin Kenya Limited had presented to him an eight-volume EIA report, it was doubtful the government was in possession of the same.
"As per the Environmental Management and Co-ordination Act, there is a three-month period in which the government has to make its decision known about the EIA reports it has received from a prospecting company. If it fails to do so, the firm ought to proceed with mining.
"But this court was told that Tiomin Kenya Limited presented its EAI and has since not received any response from the government," the judge said.
He added: "One wonders why it did not proceed to mine. It appears it did not present the project report,"
The trial judge also noted that there was a need to harmonise the Mining Act and the Environmental Management and Co-ordination Act, saying provisions within the two Acts appeared to conflict.
During the hearing, Tiomin Kenya Limited, represented by Mr Patrick Ochwa, said the project was viable and had little impact on the environment.