This Act may be cited as the Mining Act, 2016.
This Act shall apply to the minerals specified in the First Schedule.
The Cabinet Secretary may from time to time, by notice in the Gazette, amend the First Schedule to this Act.
Save to the extent provided for in this Act, this Act shall not apply to matters relating to petroleum and hydrocarbon gases.
In this Act, unless the context otherwise requires—
includes—
an application for the grant, renewal, transfer, assignment or surrender of a mineral right; or
an application for the grant or renewal of a mineral dealer's licence or a diamond dealer's licence;
means the purchase price under an immediate sale transaction in an open market where the purchase price for the sale—
is not influenced by any special relationship or other arrangement between the parties to the transaction, other than the immediate sale itself; and
is not affected by any non-commercial or other considerations; and specifically excludes any barter, swap, exchange, or transfer price arrangements or any restricted transaction that is associated with special financial, commercial or other considerations;
means traditional and customary mining operations using traditional or customary ways and means;
means a permit issued under section 95;
includes a manager, cashier or any other officer acting in that capacity of a company engaged in the business of banking within Kenya and in compliance with the provisions of the Banking Act (Cap. 488);
means a pseudo-quadrilateral formed by two meridians of longitude and two parallels of latitude of the Cadastral Graticule spaced fifteen seconds apart;
means the Cabinet Secretary for the time being responsible for mining;
means—
a group of people living around an exploration and mining operations area; or
a group of people who may be displaced from land intended for exploration and mining operations;
means an agreement entered into between a large-scale mining licence holder and a community;
includes stones, gravel, sands, soils, clay, volcanic ash, volcanic cinder and any other minerals used for the construction of buildings, roads, dams, aerodromes and landscaping or similar works, and such other minerals as the Cabinet Secretary may from time to time declare to be construction minerals, by notice published in the Gazette;
has the meaning assigned to it under the Companies Act;
means the National Mining Corporation established in section 22;
means the Council of County Governors established under section 19 of the Intergovernmental Relations Act (No. 2 of 2012);
means a calendar day;
includes a rough and uncut diamond;
means the Director of Geological Survey appointed under section 18;
mean the Director of Mines appointed under section 18;
has the meaning assigned to it under the Environmental Management and Coordination Act, 1999 (No. 8 of 1999);
means an environmental impact assessment licence granted under the Environmental Management and Coordination Act, 1999;
means a trench, pit, shaft, dredging, brine pumping or other work which is related to operations under a mineral right;
in respect of a company or other body corporate, means that the company or body corporate—
is in liquidation;
is the subject of a subsisting court order for its winding up or dissolution; or
has made a composition or arrangement with its creditors which remains in effect;
means the policy of considering and approving applications based on the order of receiving the applications;
means a person who is registered as geologist in accordance with the Geologists' Registration Act, 1993 (No. 10 of 1993);
means the scientific and research aspects of the solid earth and its processes;
means a report made by a geologist;
means the arm's-length value of minerals or mineral products at the point of sale within Kenya, without any discounts, commissions or deductions;
has the meaning assigned to it under the Water Act (No. 8 of 2002);
, in respect of a mineral right, a licence or permit under this Act, means—
a person to whom a mineral right is granted; or
the person to whom a mineral right is transferred or assigned;
means a public officer who has been appointed in accordance with section 196;
has the meaning assigned to it in Article 260 of the Constitution;
means a prospecting or mining operation that is a large scale operation in accordance with this Act;
means the area or areas of land covered by a prospecting licence, a retention licence or a mining licence under this Act;
has the meaning assigned to it under the Companies Act (No. 17 of 2015);
has the meaning assigned to it under the Maritime Zones Act (Cap. 371);
means a member of the Board appointed under section 25;
—
when used as a noun, includes an excavation or system of excavations made for the purpose of, or in connection with, the extraction of minerals or mineral products, and includes an open-cast pit, quarry and any area where a mineral is won by dredging brine pumping, evaporation or other means; and
when used as a verb, means the carrying out of a mining operation and includes tailing;
means—
contract mining services which include top soil and waste removal, drilling and blasting, excavating and haulage of ore to plant on turnkey basis;
assay laboratory services;
drilling and blasting services;
mineral exploration services for a holder of a mineral right;
contract mining services for small scale and artisanal mining, which include mining and processing of ore reclamation re-vegetation and management of mining operations;
any other services specifically and exclusively related to mining, which the Cabinet Secretary considers necessary for the effective and sustainable development of the mining industry;
means any entity or person licenced to carry out mineral dealings;
means—
buying minerals;
selling minerals;
bartering minerals;
depositing or receiving minerals as a pledge or security; or
cutting, polishing, processing, refining and treating minerals;
means a permit issued in accordance with section 164;
means a mass of naturally occurring minerals of economic value;
means the residue of mining operations that includes gravel, sand, slime, or other substances that are discarded in the course of mining operations;
means a geological substance whether in solid, liquid or gaseous form occurring naturally in or on the earth, in or under water, in mine waste or tailing and includes the minerals specified in the First Schedule but does not include petroleum, hydrocarbon gases or groundwater;
means mineral agreement entered into in accordance with section 117;
for the purposes of royalty a product of mining operations, the product of extraction in mining operations of a metal or a precious mineral from a mineral and the product of beneficiation in mining operations of a mineral, but excluding waste and tailings;
means—
a prospecting licence;
a retention licence;
a mining licence;
a prospecting permit;
a mining permit; or
an artisanal permit;
means the Board established under section 30;
means an area or areas of land that are covered by a mining licence;
means an obligatory payment or cash deposit that may be required of a mineral right holder as guarantee for the due implementation of an approved mining programme;
means a permit granted in accordance with this Act, which authorises the holder to carry out small scale mining operations;
means a licence relating to large scale operations which authorises the holder to carry out mining operations;
means an operation carried out in connection with a mine—
to win a mineral from where it occurs;
to extract metal or precious mineral from a mineral so won, or to beneficiate a mineral so won; or
to dispose of a mine waste or tailings resulting from winning, extraction or benefaction;
means the National Land Commission established under Article 67 of the Constitution;
means the area covered by a prospecting permit or a mining permit;
has the meaning assigned to it under the Petroleum (Exploration and Production) Act (Cap. 308);
means the minerals specified in Part B of the First Schedule;
means the minerals specified in Part C of the First Schedule;
means the Principal Secretary in the State Department for the time being responsible for mining;
in respect of a mining licence means—
a programme of an intended mining operation prepared by the holder of the licence and approved by the Director of Mines on the grant or renewal of the licence; or
where the programme is amended pursuant to this Act, means the programme as so amended;
means a programme of intended prospecting operations prepared by the applicant for a prospecting licence and approved by the Cabinet Secretary on the grant or renewal of the licence, and where the programme is amended pursuant to this Act means the programme as so amended;
means the area or areas of land covered by a prospecting permit or licence;
means licence relating to large scale operations which authorises the holder to carry out prospecting operations;
means operations carried out offshore and on land to search for and define the extent of a mineral deposit and to determine its economic value;
means a permit relating to small scale operations which authorises its holder to carry out prospecting operations;
has the meaning assigned to it under Article 260 of the Constitution;
means the Public Service Commission established under Article 233(1) of the Constitution;
means a mineral that contains by weight at least one-twentieth of one per cent (0.05 %) of uranium or thorium or any combination thereof, including, but not limited to, monazite sand and other ores containing thorium, carnotite, and pitchblende;
means the operations and works to carry out the non-intrusive search for mineral resources by geophysical surveys, geochemical surveys, photo geological surveys or other remote sensing techniques and surface geology in connection therewith, but excludes drilling and excavations;
means an area that is subject to a reconnaissance licence;
means a licence granted under section 61 of this Act;
means the register of mineral rights established under this Act;
means the area or areas of land covered by a retention licence;
means a retention licence granted under this Act;
means a prospecting or mining operation as described by the Second Schedule to this Act;
means minerals declared to be strategic minerals under this Act;
includes to assign or trade;
means precious metal in any form whatsoever, which is not manufactured or made up into an article of industry or of the arts, and includes amalgam, slimes, slags, precious metal concentrates, pots, battery chips, sweepings from reduction works and scrapings and by-products of unrefined precious metal and precious metal which has been smelted into the form of bullion but does not include ore in situ; and
has the meaning assigned to it under the Water Act, 2002 (No. 8 of 2002).
The Cabinet Secretary, the Principal Secretary and any person administering this Act shall be guided by the values and principles enshrined in the Constitution and in particular Articles 10, 66 (2), 201 (c) and (d), and 232 of the Constitution and the principles of leadership and integrity set out under Chapter Six of the Constitution.
Every mineral—
in its natural state in, under or upon land in Kenya;
in or under a lake, river, stream, or water courses in Kenya;
in the exclusive economic zone and an area covered by the territorial sea or continental shelf,
is the property of the Republic and is vested in the national government in trust for the people of Kenya.
Subsection (1) applies despite any right or ownership of or by any person in relation to any land in, on or under which any minerals are found.
The national government's control over minerals vested in it shall be exercised in accordance with the provisions of this Act.
For the purpose of this Act, the surface of the Earth shall be deemed to be divided in accordance with the co-ordinates represented in the official maps of Kenya held at the Survey of Kenya at a scale of 1: 50,000—
by the meridian of Greenwich and by meridians that are at a distance from that meridian of 15 or a multiple of 15 seconds of longitude;
by the equator and by parallels of latitude that are at a distance from the equator of 15 or a multiple of 15 seconds of latitude, into sections ("geometric sections") each of which is bounded;
by portions of those 2 meridians that are at a distance from each other of 15 seconds of longitude; and
by portions of 2 of those parallels of latitude that are at a distance from each other of 15 seconds of latitude.
For purposes of this Act—
a geometric section that is wholly within Kenya constitutes a block; and
where only part of a geometric section is within Kenya, that part constitutes a block.
Despite the provisions of subsection (5), fractions of blocks as may be prescribed shall be acceptable in the case of permits granted for small-scale and artisanal mining operations.
Nothing in this Act shall prevent any person from taking, subject to such conditions as may be prescribed from time to time by the Cabinet Secretary, soil, clay iron, salt or soda from any land, except land within the area of a mineral right, from which it has been the custom of the member of the community to which that person belongs to take the same.
The Cabinet Secretary may, by notice in the Gazette, and with the advice of the Mineral Rights Board, prescribe materials of customary usage.
The State has a right of pre-emption of all strategic minerals raised, won or obtained within the territory of Kenya before they are sold.
The Cabinet Secretary may make Regulations to provide for the exploration, mining, processing and export of strategic minerals and strategic mineral deposits.
A person who discovers any minerals, for which there is no apparent holder of a mineral right or on any area of land which is not held by that person under a mineral right that confers rights on the holder to conduct prospecting or mining operations for minerals, shall report the discovery to the Cabinet Secretary.
The Cabinet Secretary shall, immediately upon receipt of a report under subsection (1) issue to the person an acknowledgement in writing of the receipt of the report.
Subject to sub-section (1), a person who reports the discovery of any mineral shall be granted the first right of refusal to apply for a mineral right over the area of discovery.
A person shall not search for, prospect or mine any mineral, mineral deposit or tailings in Kenya unless that person has been granted a permit or licence in accordance this Act.
A mineral right may be granted to or be held by a person who—
is of sound mind;
has attained the age of eighteen years;
is an undischarged bankrupt;
has the required technical capacity, expertise, experience and financial resources, however this shall not be a requirement for artisanal and small scale mining operations wholly owned by Kenyans; and
is not otherwise disqualified under any written law.
A mineral right may be granted to or be held by a company which—
is registered and established in Kenya;
has not commenced voluntary winding up pursuant to the Companies Act (No. 17 of 2015);
is not subject to winding up by a court pursuant to the Companies Act; or
is not in liquidation.
Subject to sub-section (2), the directors of the company shall be required to demonstrate the required technical capacity, expertise, experience and financial capacity.
The provisions of subsections (1) (d) and (3) shall not apply to artisanal miners.
In this section the word "established" means that the company is—
operating in the registered office subject to the provisions of the Companies Act; and
in operation within Kenya.
The Cabinet Secretary shall be responsible for the general administration of this Act.
In the administration of this Act, the Cabinet Secretary shall respect and uphold the principles and values enshrined in Article 201(c) and (d); and Article 69 (1) (a) and (h) of the Constitution.
Unless otherwise provided for in this Act, the Cabinet Secretary shall make Regulations to prescribe the procedure for—
consideration of the applications made under this Act; and
negotiation, grant, revocation, suspension or renewal of mineral rights.
The Cabinet Secretary shall upon recommendation of the Mineral Rights Board, by notice in the Gazette, designate any area of land to be an area reserved exclusively for small scale mining operations.
The Cabinet Secretary may designate an area to be an area reserved exclusively for small scale and artisanal mining operations, if—
designating the area would not be incompatible with the continued enjoyment of an existing mineral right; or
written consent has been given by an authority, agency, the Cabinet Secretary or other person required to do so under this Act.
This section does not affect the right of an owner or a lawful occupier of the area covered by the mining permit to undertake non-mining operations or activities in any area to which it applies.
The Cabinet Secretary shall, in a manner as may be prescribed in Regulations, designate any area of land to be an area reserved for applications by tender for large scale operations.
The Cabinet Secretary may designate any area of land to be an area reserved for applications by tender for large scale operations, if—
designating the area would not be incompatible with the continued enjoyment of an existing mineral right; and
written consent has been given by an authority, agency, the Cabinet Secretary or any other person required to do so under this Act.
The Cabinet Secretary shall upon recommendation of the Mineral Rights Board, by notice in the Gazette, exclude such areas as may be specified in the notice to be areas excluded from the operations under a mineral right or in which such operations are restricted, if—
designating the area would not be incompatible with the continued enjoyment of an existing mineral right; or
written consent has been given by an authority, agency, the Cabinet Secretary or any other person required to do so under any written law.
The Cabinet Secretary shall advise and seek the approval of the Cabinet to declare certain minerals or mineral deposits to be strategic minerals or strategic mineral deposits.
All radioactive minerals are strategic minerals.
The Cabinet Secretary may, with the advice of the Mineral Rights Board, prescribe the manner for dealing with the discovery, exploration, mining, processing and export of strategic minerals and strategic mineral deposits.
There is established—
the Directorate of Mines; and
the Directorate of Geological Survey.
Each directorate shall be headed by a director.
The Cabinet Secretary shall ensure reasonable access to the services of the directorates established under subsection (1) in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the services offered.
The Cabinet Secretary may establish such other directorates as may be necessary.
A director shall be competitively recruited and appointed by the Public Service Commission.
In appointing a director, the Public Service Commission shall take into consideration the relevant qualification and nature of functions the director is required to undertake.
Without prejudice to subsection (2), a person is qualified to be appointed as a director, if that person—
is a citizen of Kenya;
holds a degree in mining or geology, as the case may be, from a university recognized in Kenya;
has had at least ten years proven experience at management level; and
meets the requirements of Chapter Six of the Constitution.
Director shall hold office for a term of three years, which may be renewed once.
A director may be removed from office by the Public Service Commission, in accordance with the terms and conditions of service, for—
inability to perform the functions of the office due to physical or mental incapacity;
gross misconduct;
incompetence or neglect of duty;
violation of the Constitution or any other written law; or
any other ground that would justify removal from office under the terms and conditions of service.
A director shall not be removed from office, unless he or she has been given—
sufficient notice of the intended removal from office; and
an opportunity to respond to the grounds for his or her intended removal from office.
The Director of Mines shall, through the Principal Secretary, be responsible to the Cabinet Secretary for—
the day to day operation of the Directorate of Mines;
promoting the effective and efficient management and the development of mineral resources, and the mining sector;
exercising regulatory administration and supervision over all prospecting, mining, processing, refining and treatment operations, transport and any dealings in minerals, including import and export of minerals;
ensuring compliance with conditions relating to mineral rights;
ensuring compliance with the requirements of this Act;
making any lawful orders as are necessary for the performance of the functions and duties under this Act;
reviewing, assessing and approving prospecting and mining programmes;
preparing the necessary reports required under this Act;
facilitating access to information by the public, subject to any confidentiality restrictions;
carrying out investigations and inspections necessary to ensure compliance with the provisions of this Act;
providing advice and support to holders of mineral rights on proper and safe mining methods;
exercising regulatory administration and supervision over the use of commercial explosives in accordance with the Explosives Act (Cap. 115);
providing advice during the negotiation of mineral agreements;
promoting co-operation among state agencies, county governments, the private sector, research bodies, non-governmental organizations and other organizations which are engaged in programmes related to mining and activities to enhance the administration and operation of this Act;
advising on the development of policy to ensure compliance with international conventions and national policies relating to the sustainable development of the mineral resources and ensure that mining operations take into account local and community values; and
performing such other functions as may be assigned by the Cabinet Secretary, this Act or any other written law.
The Director of Mines or a duly authorized officer may, at all reasonable times, enter upon any land, licence area, permit area or mine, or any premises for the purpose of—
inspecting such area, premises or workings and examining prospecting or mining operations or the processing, refining and treatment of minerals being carried out thereat;
ascertaining whether the provisions of this Act are being complied with;
taking soil samples or specimen of rocks, ore, concentrates, tailings or minerals situated upon such area, premises or workings for the purpose of examination or assay;
examining books, accounts, vouchers, logs, journals, documents or records of any kind required to be kept under this Act, the terms and conditions of any mineral right, permit, licence or mineral agreement and taking copies of such books, accounts, vouchers, documents or records; or
obtaining such other information as deemed necessary.
The Director of Mines or a duly authorised officer may, with respect to the health and safety of persons employed by a holder of a mineral right—
issue directions in writing; or
impose restrictions, including temporarily suspending any prospecting or mining operation on the holder or any person so employed.
In exercising the powers under subsections (2) and (3), the Director or a duly authorised officer shall ensure that as little damage or inconvenience as possible is caused to the legitimate owner or lawful occupier of the land in respect of which the powers are exercised.
A person whose land or property is damaged as a result of the exercise of the powers of the Director of Mines under subsection (1) is entitled to fair, prompt and full compensation for such damage in accordance with this Act.
The Director of Geological Survey shall, through the Principal Secretary, be responsible to the Cabinet Secretary for—
the day to day operation of the Directorate of Geological Survey;
providing geoscience expertise and data to the government on all matters related to geology and the development of minerals;
undertaking geological, geophysical, geochemical, seismological and hydro-geological surveys, investigations and mapping aimed at defining the character and distribution of rocks and superficial deposits and determining the mineral potential of Kenya;
conducting geo-environmental studies;
monitoring of seismic activities and mapping of areas of potential geohazards;
conducting geological analysis and valuations;
developing a national repository of geo-science information through the compilation, publication and dissemination of information and data concerning the geology and mineral resources of Kenya and facilitate access to this information by the general public;
promoting private sector interest and investment in mineral exploration by providing geological information and services to prospective investors;
maintaining a laboratory, library and record facilities as may be necessary for the discharge of the functions;
providing geoscience expertise in evaluations of prospecting and mining applications;
providing support to the Director of Mines in relation to exercising regulatory administration and supervision over all prospecting and mining operations;
undertaking audits of mineral right holders' geological sampling and assaying processes; and
performing any other function as may be assigned by the Cabinet Secretary, this Act or any other written law.
In the performance of his duties, the Director of Geological Survey or a duly authorised officer may—
enter any licence or permit area;
upon informing the lawful owner or legal occupant, enter into or upon any land for the purpose of carrying out surveys;
take soil samples or specimens of rocks, concentrate, tailings or minerals from any licence or permit area for the purpose of examination or assay;
break up the surface of the land for the purpose of ascertaining the rocks or minerals within or under it; and
dig up any land and fix any post, stone, mark or object to be sued in the survey of such land.
In exercising the powers under subsection (2), the Director or a duly authorized officer shall ensure that as little damage or inconvenience as possible is caused to the legitimate owner or lawful occupier of the land in respect of which the powers are exercised.
A person whose land or property is damaged as a result of the exercise of the powers of the Director of Geology under subsection (1) shall be entitled to fair, prompt and full compensation for such damage in accordance with this Act.
There is established the National Mining Corporation, which shall be the investment arm of the national government in respect of minerals.
The Corporation shall be a body corporate with perpetual succession, and a common seal and shall, in its corporate name, be capable of—
suing and being sued;
taking, purchasing and disposing of movable and immovable property;
borrowing money with the approval of the National Treasury in accordance with the relevant law;
entering into contracts; and
doing such other things as may be necessary for the proper discharge of its functions under this Act, which may be lawfully done or performed by a body corporate.
The initial capital for the Corporation shall be monies appropriated by Parliament for that purpose.
The headquarters of the Corporation shall be in Nairobi.
The functions of the Corporation shall be to—
engage in mineral prospecting and mining; and any other related activities;
invest on behalf of the national government;
acquire by agreement or hold interests in any undertaking, enterprise or project associated with the exploration, prospecting and mining;
acquire shares or interest in any firm, company or other body of persons, whether corporate or unincorporated which is engaged in the mining, prospecting, refining, grading, producing, cutting, processing, buying, selling or marketing of minerals; and
carry on its business, operations and activities whether as a principal agent, contractor or otherwise, and either alone or in conjunction with any other persons, firms or bodies corporate.
The Corporation shall be managed by a Board comprising of—
a chairman, appointed by the President;
the Principal Secretary responsible for mining or a representative;
the Principal Secretary responsible for the National Treasury or a representative;
the Principal Secretary responsible for trade or a representative; and
three other persons, not being employees of the corporation.
The Cabinet Secretary shall make Regulations to prescribe the criteria for the appointment of the members under paragraphs (a) and (e).
An appointment under subsection (1) (a) and (e) shall be by name and by notice in the Gazette.
The term of office for members under subsection (1) (a) and (e) shall be for a period of three years and may be renewed for one further final term.
A person ceases to be a member, if he or she—
resigns, by giving written notice to the Cabinet Secretary;
is absent from three consecutive meetings of the Board without the permission of the chairperson;
is convicted of an offence and sentenced to imprisonment for a term not exceeding six months;
is adjudged bankrupt;
is incapacitated from performing his duties as a member of the Board, by prolonged physical or mental illness.
A representative member referred to under subsection (1) (b) (c) and (d) shall, when attending a meeting, be deemed for all purposes to be a member of the Board.
There shall be a chief executive officer of the Corporation who shall be competitively recruited by the Corporation.
The chief executive officer shall be—
the accounting officer for the Corporation;
the secretary to the Board; and
responsible for the day to day administration and management of the affairs of the Corporation.
A person shall be qualified for appointment as the chief executive officer, if that person—
holds a relevant degree from a university recognised in Kenya;
has at least seven years management experience in a public or private institution;
meets the requirements of Chapter Six of the Constitution; or
has not been convicted of an offence and is not serving a term of imprisonment.
The chief executive officer shall be appointed for a term of three years, which may be renewed for one further term.
The chief executive officer may be removed from office in accordance with the terms and conditions set out in the contract and for violation of any written law or violation of the terms and conditions of the contract.
The Cabinet Secretary shall make Regulations generally for purpose of the operationalization of the Corporation.
The Cabinet Secretary shall facilitate the establishment of a Mineral and Metals Commodity Exchange.
The purpose of the Mineral and Metals Commodity Exchange shall be to facilitate efficiency and security in mineral trade transactions.
The Cabinet Secretary may make Regulations to prescribe the criteria for the establishment and the functions of a mineral and metals commodity exchange.
The Cabinet Secretary shall ensure that—
a database of geoscience and information is kept and maintained; and
is made available to the public on request.
There is established a Mineral Rights Board.
The Mineral Rights Board shall comprise of—
a chairperson with demonstrable knowledge and experience of the minerals and mining sector, who shall be appointed by the President;
the Principal Secretary responsible for matters relating to mining;
the Principal Secretary responsible for the National Treasury;
one person who has relevant qualifications or experience in mining, geology, geophysics or engineering, nominated by the Council of County Governors;
the Chairperson of the National Land Commission;
the Director of Mines who shall be the secretary to the Mineral Rights Board;
the Director of Geological Surveys; and
two persons with professional qualifications and experience in the mining industry.
The Cabinet Secretary shall appoint the persons under sub-section (2) (d) and (h) who shall serve a period of three years.
A person shall be qualified for appointment as a chairperson or member of the Mineral Rights Board if that person—
is a citizen of Kenya;
holds a degree from a recognized university, in geology, geophysics, mining, engineering, economics, business administration or law;
has experience in the mining sector of not less than ten years in the case of the chairperson and five years in the case of any other member; and
satisfies the requirements of Chapter Six of the Constitution.
A person shall not be qualified for appointment as a Chairperson or member of the Mineral Rights Board, if that person—
is an undischarged bankrupt;
suffers from physical or mental infirmity which renders him or her incapable of discharging the function of the Mineral Rights Board; and
has been convicted of an offence whose term of imprisonment exceeds six months.
The Chairperson and members of the Mineral Rights Board appointed under subsection (2) (a) and (h) shall hold office for a period of three years and may be eligible for re appointment for one further term.
The functions of the Mineral Rights Board shall be to advise and give recommendations, in writing, to the Cabinet Secretary on—
the grant, rejection, retention, renewal, suspension, revocation, variation, assignment, trading, tendering, or transfer of Mineral Rights Agreements;
the areas suitable for small scale and artisanal mining;
the areas where mining operations may be excluded and restricted;
the declaration of certain minerals as strategic minerals;
cessation, suspension, or curtailment of production in respect of mining licences;
fees, charges and royalties payable for a mineral right or mineral; and
any matters which under this Act, are required to be referred to the Mineral Rights Board.
The Mineral Rights Board may for the purpose of facilitating the performance of its functions establish such number of committees to advise the Mineral Rights Board on matters relating to mining and minerals.
The Cabinet Secretary, on the recommendation of the Mineral Rights Board, may grant, deny or revoke a mineral rights.
A mineral right may be granted in respect of a large scale operation or small scale operation.
The following licences and permits may be granted for a mineral right under this Act to authorise a mineral right holder to engage in—
large scale operations which shall include—
a reconnaissance licence;
a prospecting licence;
a retention licence;
a mining licence; or
small scale operations, which shall include—
a prospecting permit; or
a mining permit.
The Cabinet Secretary may on the recommendation of the Mineral Rights Board, by notice in the Gazette, designate any other mineral right which may be granted under this Act.
A person shall make an application for a mineral right in the prescribed manner to the Cabinet Secretary.
The Cabinet Secretary shall, on the recommendation of the Mineral Rights Board, approve or reject an application—
within ninety days in the case of an application for prospecting licence or reconnaissance licence; or
within one hundred and twenty days in the case of an application for a mining licence.
Subject to sub-section (2), the Cabinet Secretary shall notify the Mineral Rights Board of the decision to approve or reject an application before notifying the applicant.
Subject to subsection (2), the Cabinet Secretary shall notify the applicant in writing whether the application has been accepted or rejected.
Where the application is approved, the applicant shall by notice in writing accept or reject the offer for grant of the mineral right within twenty-one days from the date of receipt of notification of the approval.
Where the applicant does not notify the Cabinet Secretary of the acceptance of the offer, the approval of the application shall lapse after twenty-one days.
An applicant who is aggrieved by the decision of the Cabinet Secretary may appeal to the High Court within thirty days.
The Cabinet Secretary shall, on receipt of the application, give notice in writing of the pending application for the grant of a mineral right to—
the land owner or lawful occupier of the land where the mineral is located;
the community; and
the relevant county Government.
The Cabinet Secretary shall, on receipt of the application, publish notice of the pending application in a newspaper of wide circulation at the applicant's expense.
A notice given under sub-section (1) shall—
state the proposed boundaries of the land in relation to which an application for a mineral right is made; and
be published, for twenty one days in the Gazette and in the offices of the County Government within which county the land is situated.
Subject to sub-section (3), a person or community may object to the grant of a licence—
within twenty one days in the case of an application for a prospecting licence; and
within forty two days in the case of an applications for a mining licence.
The Cabinet Secretary shall hear and determine any objection to an application under subsection (4) through the Minerals Rights Board.
A mineral right issued under this Act or any other written law, shall be evidenced by a licence or permit.
The licence or permit referred to under subsection (1), shall be in the prescribed form.
The Cabinet Secretary shall not grant a mineral right which authorises prospecting or mining operations on—
any land specified by the Cabinet Secretary, by notice in the Gazette, to be land upon which such operations are excluded or restricted; or
an area of which is subject to an existing permit or licence.
The Mineral Rights Board shall, prior to recommending to the Cabinet Secretary the grant of a mineral right, require the applicant to seek—
approval of the National Land Commission, in relation to public land;
the approval of the relevant State agency where that mineral right is on public land under Article 62 (1)(b) of the Constitution;
the approval of the appropriate Cabinet Secretary or other authority, where the area in respect of which a mineral right is sought is dedicated or set apart as a place of burial, religious significance, as a public building, or for any other public purpose;
the Governor of the respective county exercising control where the land is situated within a town, municipality or trading centre;
the Cabinet Secretary responsible for matters relating to wildlife conservation and management, where the land is situated within a marine park, a national park or a local sanctuary under the Wildlife (Conservation and Management) Act (No. 47 of 2013);
the Cabinet Secretary responsible for matters relating to the environment, where the land is situated within a protected area, a protected natural environment, or a protected coastal zone under the Environmental Management and Coordination Act (No. 8 of 1999);
the Director of the Kenya Forest Service, where the land is situated within a forest area or; operations on, under or over an area, that has been declared a forest area under the Forests Act (No. 7 of 2005);
any other person who in the opinion of the Cabinet Secretary would otherwise be affected by the grant of a mineral right, who may include the owner of private land or the community in occupation of the land.
The Cabinet Secretary shall determine any questions as to whether operations on any land are excluded under this section.
A prospecting and mining rights shall not be granted under this Act with respect to private land without the express consent of the registered owner, and such consent shall not be unreasonably withheld.
For the purpose of subsection (1), consent shall be deemed to be given for the purposes of this Act where the owner of private land has entered into—
a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows for the conduct of prospecting or mining operations; or
an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation.
Where consent is granted prior to any change in land ownership, such consent shall continue to be valid for as long as the prospecting and mining rights subsists.
A prospecting and mining rights shall not be granted under this Act or any other written law over community land without the consent of—
the authority obligated by the law relating to administration and management of community land to administer community land; or
the National Land Commission in relation to community land that is unregistered.
For the purpose of subsection (1), consent shall be deemed to be given for the purposes of this Act where the registered owners of community land have entered into—
a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows the conduct of prospecting or mining operations; or
an agreement with the applicant for the mm prospecting and mining rights concerning the payment of adequate compensation.
Subject to the law relating to community land, where consent is granted prior to any change in land ownership, such consent shall be valid for as long as the prospecting and mining rights subsists.
The Cabinet Secretary may, by notice in the Gazette, make regulations for the grant of prospecting and mining rights over community land.
The person responsible for a State organ, agency, or authority or a person referred to under sections 36, 37 or 38 shall give written consent or notice of refusal to the applicant within twenty days.
The Cabinet Secretary may take steps under the law relating to the compulsory acquisition of land or rights or interests in land, to vest the land or area in question, or rights or interests in such land or area, in the Government or on behalf of the Government, where the consent required under sections 36, 37 or 38 is—
unreasonably withheld; or
the Cabinet Secretary considers that withholding of consent is contrary to the national interest.
Subject to sub-section (1), the land or area shall cease to be land excluded from prospecting or mining.
The Cabinet Secretary shall invite parties to tender in respect of large-scale operations over an area or areas of land designated under section 14.
The Cabinet Secretary shall in consultation with the National Treasury and subject to the law relating to public procurement, make Regulations to provide for tendering guidelines.
A mineral right may be granted subject to such conditions as may be determined by the Cabinet Secretary including conditions concerning—
the protection of the mineral interests;
the protection of the environment;
community development;
safety of prospecting and mining operations;
health and safety of persons undertaking those operations;
the protection of the lawful interests of the holders of any other mineral right; and
the maximum number of blocks a person or a company may hold.
Unless otherwise provided for in the mineral right, the condition subject to which a mineral right is granted shall continue to have effect and be enforceable after the—
expiration of the term of the mineral right;
surrender of the whole or part of the area specified in the mineral right; or
revocation of the mineral right in respect of the whole or part of the area specified in the right.
Subject to sub-section (2), the Cabinet Secretary may enforce the conditions, as if the conditions were contained in a contract between the Cabinet Secretary and the holder of the mineral right and valuable consideration had been given to the holder for the holder's compliance with the condition.
A holder of a mineral right shall not—
engage in wasteful mining or treatment practices; or
conduct his operations otherwise than in accordance with this Act, best industry practice and any other guidelines as shall be prescribed from time to time by the Cabinet Secretary.
The Cabinet Secretary or an officer authorised by the Cabinet Secretary, may issue directions to the holder of a mineral right requiring the holder to undertake measures necessary to—
prevent wasteful mining practices; or
ensure that prospecting or mining operations are carried out in accordance with mining best practice, the Act or guidelines under this Act.
The holder of a mineral right shall comply with any direction given under this Act.
A person who does not comply with the provisions of this section commits an offence.
The holder of a mineral right shall exercise the rights conferred under the mineral right reasonably, responsibly and in a manner that does not adversely affect the interests of any other holder of a mineral right, or the owner or occupier of the land over which the mineral right extends.
A holder of a mineral right and any agent appointed by the holder of a mineral right shall register with the Principal Secretary an address in Kenya to which all communications and notices made under this Act to the mineral right holder or agent may be sent.
To ensure skills transfer to and capacity building for the citizens, the holder of a mineral right shall submit to the Cabinet Secretary a detailed programme for the recruitment and training of citizens of Kenya in a manner as may be prescribed by the Cabinet Secretary.
The submission and approval of the programme under subsection (1) shall be a condition for the grant of mineral right.
The Cabinet Secretary shall make regulations to provide for the replacement of expatriates, the number of years such expatriates shall serve and provide for collaboration and linkage with universities and research institutions to train citizens.
The Cabinet Secretary shall issue policy guidelines making further provision to give effect to this section.
The holder of a mineral right shall give preference in employment to members of the community and citizens of Kenya.
In the case of a large scale operation, the holder of a mineral right shall—
conduct training programmes for the benefit of employees;
undertake capacity building for the employees;
only engage non-citizen technical experts in accordance with such local standards for registration as may be prescribed in the relevant law;
work towards replacing technical non-citizen employees with Kenyans, within such reasonable period as may be prescribed by the Cabinet Secretary;
provide a linkage with the universities for purposes of research and environmental management;
where applicable and necessary facilitate and carry out social responsible investment for the local communities; and
implement a community development agreement as may be prescribed in Regulations.
Where a mineral right is for a large scale mining operation, the State shall acquire ten percent free carried interest in the share capital of the right in respect of which financial contribution shall not be paid by the State.
The provisions of sub-section (1) shall apply to large scale mining operations and to mining operations relating to strategic minerals.
Subsection (1) shall not preclude the State from any other or further participation in mining and operations which shall be agreed with the holder at arm's length.
The Cabinet Secretary shall make regulations to provide for state participation in mining or prospecting operations between the Government and the holder of a mineral right.
The Cabinet Secretary shall prescribe the limits of capital expenditure for the purpose of this section.
A holder of a mining licence whose planned capital expenditure exceeds the prescribed amount shall list at least twenty percent of its equity on a local stock exchange within three years after commencement of production.
The holder of a mining licence may apply in writing to the Cabinet Secretary to execute an equitable alternative mechanism that will allow the company to meet the requirement set in subsection (1), including an extension of time.
The Cabinet Secretary, may after consultation with the National Treasury extend the period set out in subsection (2), for reasons that the market conditions do not allow for a successful completion of the offering in the local stock exchange.
The holder of a mineral right shall, in the conduct of prospecting, mining, processing, refining and treatment operations, transport or any other dealings in minerals give preference to the maximum extent possible—
to materials and products made in Kenya;
to services offered by members of the community and Kenyan citizens; and
to companies or businesses owned by Kenyan citizens.
The holder of a mineral right shall not assign, transfer, mortgage or trade such right or part thereof without the consent of the Cabinet Secretary on recommendation of the Mineral Rights Board.
The Cabinet Secretary shall not unreasonably withhold consent to assign, transfer, mortgage or trade a mineral right and shall inform an applicant of the decision within thirty days of receipt of an application to assign, transfer, mortgage or trade a mineral right.
The Cabinet Secretary shall not consent to a proposed assignment, transfer, mortgage or trade of a mineral right to a person or a body corporate which is not eligible for the grant of a mineral right under this Act.
Prior to assignment, transfer, mortgage or trade of a mineral right, and within thirty days from the date of receiving consent, the holder of such right shall notify the Kenya Revenue Authority of the transfer of an interest in a mineral right.
The Cabinet Secretary shall not register the interest of the transferee until the transferor produces evidence of compliance with the relevant tax provisions.
Subject to this Act, the holder of a mineral right shall notify the Cabinet Secretary of any significant proposed change in the ownership or control of the mining company with any single interest exceeding twenty-five percent interest in the licence.
A proposed change shall not take effect until it has been approved by the Cabinet Secretary.
The Cabinet Secretary shall not refuse to grant approval, except for valid reasons.
The transferee as well as the transferor of a mineral right shall be liable for the payment of all rent and compensation which may have accrued, and the observance of all obligations imposed by the licence up to the date of the transfer in respect of the licence or part thereof so transferred, but the transferor shall not be liable for the payment of any future rents and compensation or the compliance with any obligations so imposed as aforesaid in regard to the licence or part thereof so transferred after the date of the transfer.
The Mineral Rights Board shall prepare and submit a report on each application for a mineral right to the Cabinet Secretary.
The holder of a mineral right shall, within three months following the end of each financial year, furnish the Cabinet Secretary and the Kenya Revenue Authority with a copy of audited annual financial statements, in accordance with International Accounting Standards.
The Cabinet Secretary shall prescribe the form and contents of the annual financial statements.
The holder of a mineral right, or an applicant for the grant or renewal of a mineral right, shall provide such additional information to the Cabinet Secretary as may be reasonably required for consideration of the application.
The Cabinet Secretary shall request for information by written notice to the holder of the mineral right.
Where the Cabinet Secretary requires additional information to be provided under subsection (1), an application for the grant or renewal of a mineral right shall be deemed to be incomplete until the mineral right holder furnishes the additional information to the Cabinet Secretary.
The Cabinet Secretary shall submit an annual report, to Cabinet, of all mineral rights granted or rejected under this Act or any other written law.
The report submitted under subsection (1) shall indicate the justification for granting or rejecting a mineral right under this Act or any other written law.
Applications for a mineral right shall be considered, processed and determined on a first-come first-served basis.
The Cabinet Secretary shall extend the term of a mineral right that has expired by effluxion of time—
where the mineral right is for a prospecting licence and the holder is awaiting a decision on an application made in accordance with this Act for—
the renewal of the licence; or
a retention licence or a mining licence that applies to the whole, or a part, of the area covered by the prospecting licence.
where the mineral right is for a retention licence and the holder is awaiting a decision on an application made in accordance with this Act for—
the renewal of the licence; or
a mining licence; or
where the mineral right is for a mining licence or a mining permit and the holder is awaiting a decision on an application for renewal of the mineral right made in accordance with this Act.
An extension of the term of a mineral right in accordance with subsection (1) shall end immediately if an application for any of the mineral rights mentioned in this section is surrendered or is refused.
The Cabinet Secretary shall only grant or renew a mineral right for a large scale operation where the applicant has complied with the provisions of this Act.
An application for the grant or renewal of a mineral right may be withdrawn by the applicant at any time before the applicant receives information of the approval or rejection of the application.
The Cabinet Secretary in consultation with the National Treasury may enter into a mineral agreement with the holder of a mining licence where the proposed investment exceeds five hundred million United States dollars.
A mineral agreement shall include terms and conditions relating to—
the minimum prospecting or mining operations to be carried out and the time table determined for purposes of such operations;
the minimum expenditure in respect of the prospecting or mining operations;
the manner in which prospecting or mining operations shall be carried out;
the environmental obligations and liabilities, subject to the requirement of the Environment Management and Co-ordination Act;
the procedure for settlement of disputes;
the processing, whether wholly or partly in Kenya, of any mineral or group of minerals found, obtained or mined by the holder of a mineral right in the course of mining operations;
the basis on which the market value of any mineral or group of minerals in question may from time to time be determined;
insurance arrangements;
resolution of disputes through an international arbitration or a sole expert; and
community development plans;
the payments of royalties, taxes, cess and other fiscal impositions; and
financial arrangements.
Nothing contained in a mineral agreement shall be construed as to absolve any party to such agreement from a requirement prescribed by law.
A mineral agreement shall be prepared in accordance with a standard format as may be prescribed in Regulations.
All mineral agreements shall be submitted to the National Assembly and the Senate for ratification.
The Cabinet Secretary may, on behalf of the State, on the advice of the Mineral Rights Board, negotiate with an applicant for or holder of a prospecting licence, a retention licence or a mining licence in respect of large scale mining or exploitation of minerals in the marine and terrestrial areas in accordance with the provisions of this Act and any other written law.
Subject to Article 35 of the Constitution and mineral any other written law, all mineral agreements entered into in accordance with this Act shall be public and be made accessible to the public.
The Cabinet Secretary shall ensure access to information under this Act, including ensuring that mineral agreements and the status thereof is available in the official website of the Ministry for the time being responsible for mining.
The Cabinet Secretary shall make Regulations to provide for accountable and transparent mechanisms of reporting mining and mineral related activities, including—
revenues paid to the government by mineral right holders; and
production volumes under each licence or permit.
The Cabinet Secretary shall publish on the ministry website, annually, records, reports, mineral agreements and any other relevant information.
The Cabinet Secretary shall have regard to provisions of Article 71 of the Constitution prior to executing any mineral agreements, or other agreement relating to the exploitation of any natural resources.
Any agreement relating to large scale mining operations on terrestrial and marine areas shall be submitted to the National Assembly and the Senate for ratification before execution by the Cabinet Secretary.
A term or condition contained in a mineral agreement which is inconsistent with any provision of this Act or the Constitution shall, to the extent of the inconsistency, be void and of no legal effect.
A term or condition forming part of a mineral agreement shall not absolve any party to it from complying with provisions of this Act or any other written law.
The Cabinet Secretary shall apply the criteria set out in the Second Schedule for the purpose of distinguishing between small scale and large scale operations.
The holder of a mineral right may by notice in writing to the Cabinet Secretary apply to surrender the mineral right.
The Cabinet Secretary, on the recommendation of the Mineral Rights Board, may allow the holder of a mineral right to surrender that mineral right in respect of the whole or any part of the area specified in the mineral right.
The holder of a mineral right shall apply to surrender the mineral right to the Cabinet Secretary.
An application under sub-section (2) shall be in the prescribed form and the applicant shall give—
at least three months' notice of intention to surrender the whole or part of the area specified in the mineral right; or
in the case of a prospecting permit at least one months' notice of intention to surrender the whole or part of the area specified in the permit.
An application made under subsection (2) shall include—
a plan of the area to be surrendered in a form which is acceptable to the Cabinet Secretary if the surrender relates to part of the area specified in the right;
proof of implementation of any environmental management plans; and
pall records and reports with respect to the prospecting or mining operations carried out in the area to be surrendered.
A proposed surrender of an area covered under a mineral right shall have no effect unless and until the Cabinet Secretary, on the recommendation of the Mineral Rights Board, gives the holder thereof written notice that the application for surrender has been approved.
An approval for the surrender of a mineral right may be granted subject to such conditions as the Cabinet Secretary, on the recommendation of the Mineral Rights Board, may deem appropriate.
Except as provided by section 42(2) of this Act, a mineral right shall cease to have any effect when an application for its surrender is approved.
Where the application is in respect of part of the area specified in the mineral right it shall cease to have effect in respect of that area but shall continue to have effect in respect of the remaining area.
The Cabinet Secretary, on the recommendation of the Mineral Rights Board, may suspend or revoke a mineral right if the holder—
fails to make a payment required under this Act on the due date;
fails to comply with any condition specified in the right or an obligation placed on the holder by this Act, or fails to take the action required by the Cabinet Secretary to be taken in accordance with subsection (3);
commits an offence under this Act;
makes or is found to have made a false statement in the application for the grant or renewal of the mineral right; or
is adjudged bankrupt or in the case of a company it is declare insolvent
The Cabinet Secretary may suspend or revoke a prospecting or mining permit if the holder does not commence prospecting or mining operations under the permit in accordance with the approved work programme or programme of mining operations.
Before suspending or revoking a mineral right in accordance with subsection (2), the Cabinet Secretary shall give the holder a written notice requiring him—
to comply with the condition or obligation within a reasonable period of time; or
to show cause, within that period, as to why the mineral right should not be suspended or revoked.
Subject to section 42 (2), a mineral right shall cease to have effect upon its cancellation.
The revocation of a mineral right shall not prejudice any liability or obligation incurred under or in relation to the mineral right prior to its revocation.
The holder of a mineral right who applies to surrender the right shall furnish the Cabinet Secretary with a statement of the immovable and movable assets and any other information in the prescribed form—
a statement of assets which identifies the assets the holder intends to remove from the area and those the holder intends to leave; and
a notification of any potentially hazardous substances, excavations and buildings in the area.
Where a mineral right is not renewed at the end of its term or is cancelled by the Cabinet Secretary, the former holder of the mineral right shall provide a statement to the Cabinet Secretary in the prescribed form containing the information prescribed in subsection (1) within such reasonable period as the Cabinet Secretary may direct.
All immovable assets of the holder under the mining licence shall vest in the Republic from the effective date of the surrender or termination of the licence.
All movable assets of the holder in the mining area which are fully depreciated for tax purposes shall vest in the County Government without charge on the effective date of such termination and any property not then fully depreciated for tax purposes, the County Government or the Republic shall have the right of first refusal for the sale of such assets from the effective date of termination at the depreciated cost.
Subject to subsection (4), the Cabinet Secretary may permit the assets to be removed solely and exclusively for the purpose of use by the holder in another mining operation in the country.
The Cabinet Secretary shall prescribe Regulations on the use of the assets.
Where a mineral right is not renewed or is surrendered by the holder or cancelled by the Cabinet Secretary, the holder shall deliver to the Cabinet Secretary within a period of two months—
all the records which, prior to termination, the holder was obliged to maintain under this Act; and
all plans or maps of the area covered by the mineral right prepared by or for the holder.
The holder of a mineral right or an agent or employee of the holder shall, when exercising a right under the mineral right over land owned or occupied by some other person, produce evidence of the mineral right if required to do so by any lawful owner or occupier of the land.
The owner or lawful occupier or user of an area of land which is the subject of a mineral right shall continue to enjoy the right to graze livestock on the land or to cultivate the land to the extent, in each case, that doing so—
does not unduly interfere with the relevant prospecting or mining operations; and
does not, by virtue of those operations, constitute a danger or hazard to livestock or crops.
Where the exercise of the rights conferred by a mineral right—
disturbs or deprives the owner or any lawful occupier or user of the land or part of the land;
causes loss of or damage to buildings and other immovable property;
causes damage to the Water table or deprives the owner of water supply;
in the case of land under cultivation or grazing of domesticated animals, causes any loss of earnings or sustenance suffered by the owner or lawful occupier of the land;
a demand or claim for compensation may be made to the holder of the mineral right to pay prompt, adequate and fair compensation to the lawful owner, occupier or user of the land in accordance with the provisions of this Act.
A mineral right holder shall deposit a compensation guarantee bond with the relevant Ministry.
The Cabinet Secretary may make Regulations relating to compensation guarantee bonds.
A person shall not demand or claim compensation whether under this Act or otherwise—
in consideration for permitting entry to the land connected with the enjoyment of rights conferred under a mineral right;
in respect of the value of any mineral in, on or under the land that is the subject of a mineral right; or
for any loss or damage for which compensation cannot be assessed according to legal principles.
Where a demand or claim for compensation is disputed, the parties to the dispute shall seek to resolve the dispute amicably by agreement reached through negotiations in good faith.
Where a dispute cannot be resolved through negotiations within a reasonable period of time, either party to the dispute may refer the matter to the Cabinet Secretary for a determination in accordance with section 129 of this Act.
A holder of a mineral right shall not commence mining of minerals unless the lawful occupier, owner or user of land is compensated.
The Cabinet Secretary in consultation with the community and the National Land Commission shall in such manner as may be prescribed, ensure that the inhabitants or communities who prefer to be compensated by way of resettlement as a result of being displaced by a proposed mineral operation are settled on suitable alternate land, with due regard to their economic wellbeing, social and cultural values and the resettlement is carried out in accordance with the relevant physical planning law.
The cost of resettlement under sub-section (8) shall be borne by the holder of the mineral right.
Any dispute arising as a result of a mineral right issued under this Act, may be determined in any of the following manners—
by the Cabinet Secretary in the manner prescribed in this Act;
through a mediation or arbitration process as may be agreed upon by the disputing parties or as may be stated in an agreement; or
through a court of competent jurisdiction.
Subject to the provisions of this Act, the Cabinet Secretary may inquire into and determine the following matters—
a dispute of the boundaries of an area held under a prospecting or mining right;
any wrongful act committed or omitted in the course of prospecting and mining operations, by any persons against any other person;
a claim by any person to be entitled to erect, cut, construct or use any pump, line of pipes, flume, race, drain, dam or reservoir for mining purposes;
a claim to have any priority of water taken, diverted, used or delivered for mining purposes, as against any other person claiming the same; or
assessment and payment of compensation where provided for under this Act.
A dispute referred to in section 155 may be referred to and determined by the Cabinet Secretary in accordance with the following procedures—
the party referring the dispute to the Cabinet Secretary shall lodge a memorandum with the Cabinet Secretary together with a statement of claim in the prescribed form;
on receipt of the memorandum, the Cabinet Secretary shall notify the party against whom the complaint has been made of the referral of the dispute and shall advise the other party of the nature of the complaint and invite that party to lodge a memorandum in response to the complaint;
upon receiving the written response from the party against whom a complaint has been lodged for determination, the Cabinet Secretary shall notify the parties of the time and place at which the matter will be heard and determined;
the parties shall be invited to state their respective cases before the Cabinet Secretary and shall be entitled to adduce evidence on oath or affirmation in support of their cases; and
after hearing the statements and receiving the evidence the Cabinet Secretary shall make a written determination of the dispute.
Any person who is a party to a dispute referred to the Cabinet Secretary for determination under this section may appear in person or be represented by an advocate.
In making a determination of a dispute, the Cabinet Secretary shall, having regard to the subject matter of the dispute, apply relevant rules and principles concerning the matter in dispute.
Subject to section 155, the Cabinet Secretary may make such orders as he may consider necessary to give effect to a determination, including ordering the payment of compensation by one party to the dispute to the other.
An order made by the Cabinet Secretary under this section shall be enforceable by a Court as if the same were an order of that Court.
The Cabinet secretary shall keep a record of all matters heard and determined by him, and shall keep a written record of the evidence given before him.
Any person who is interested in any dispute, decision or order shall be entitled to obtain a copy of such record and notes upon payment of the prescribed fee.
The Cabinet Secretary may send a copy, certified under his hand and seal, of any decree or order made by him to any civil court within the local limits of whose jurisdiction the subject-matter of the decree is situated, and such civil court shall enforce the decree of the Cabinet Secretary in the same manner in which it would enforce its own decree or order.
The Cabinet Secretary shall by notice in the Gazette prescribe rules of procedure to be applied in respect to determination of disputes under this Act.
Any person aggrieved by any decree, order or decision made or given under the powers vested in the Cabinet Secretary may appeal within thirty days to the High Court.
A person shall not dispose of minerals, whether for sampling, assay, analysis or otherwise except—
with the written consent of the Cabinet Secretary;
where the person is the holder of a mineral right, in accordance with the conditions of the mineral right;
where the person is the holder of a mineral dealer's licence or a diamond dealer's licence in accordance with the conditions of the licence; or
in any other case, as otherwise permitted by or under this Act.
No title to minerals shall pass in any case where a person disposes of minerals otherwise than in accordance with subsection (1).
A person shall not engage in mineral dealings, either as principal or agent, except with and in accordance with a mineral dealer's licence or a mineral dealer's permit.
Notwithstanding subsection (1), the holder of a mineral right may deal in minerals lawfully acquired in accordance with the terms and conditions of the mineral right.
Subsection (1) shall not apply to—
the holder of a diamond dealer's licence who is engaged in buying diamonds in accordance with the provisions of the licence; or
any person lawfully entitled to carry on the business of a banker.
An application for a mineral dealer's licence shall be made to the Cabinet Secretary in the prescribed form and shall be accompanied by the prescribed fee.
An application made under subsection (1) shall be accompanied by evidence sufficient to show that the applicant is in possession of, or commands, either sufficient knowledge, experience, or working capital to ensure that the applicant can carry on the business that would be permitted under the licence.
A mineral dealer's licence shall expire on the thirty-first day of December of the year in which it is issued.
A mineral dealer may apply for renewal of a mineral dealer's licence to the Cabinet Secretary in the prescribed form and upon payment of the prescribed fee.
The holder of a mineral dealer's licence shall not—
deal in minerals otherwise than in accordance with the conditions set out in the licence; or
engage in mineral dealings permitted under the licence with a person who has not acquired the minerals lawfully or is otherwise not lawfully entitled to deal in the minerals.
The holder of a mineral dealer's licence shall keep a register of the mineral dealings in the prescribed form.
The holder of a mineral dealer's licence shall record in the register the following information in respect of each transaction—
the nature and weight of the minerals purchased or sold;
the price paid or received for the minerals;
the date of the purchase or sale; and
the name and address of the vendor or the purchaser or consignee.
The holder of a mineral dealer's licence shall submit to the Cabinet Secretary a true copy of the register in duplicate for the preceding three months, together with a statutory declaration of the correctness thereof, in the months of January, April, July and October of every year
A mineral dealer's permit shall be issued, to citizens of Kenya or in the case of a body corporate, where sixty percent of the shareholding is held by citizens of Kenya.
A mineral dealer's permit shall be issued by the Cabinet Secretary upon application and payment of the requisite fees.
A mineral dealer's permit shall expire on the thirty first day of December of the year in which it is issued.
The holder of a mineral dealer's permit shall not export minerals but shall have the right to buy and sell locally.
A person shall not deal in diamonds, as either principal or agent unless the person has obtained a diamond dealer's licence.
Notwithstanding subsection (1), the holder of a mineral right may deal in diamonds lawfully acquired in accordance with the terms and conditions of a mineral right.
Subsection (1) shall not apply to any person lawfully entitled to carry on the business of a banker.
A person shall make an application for a diamond dealer's licence to the Cabinet Secretary in the prescribed form and shall be accompanied by the prescribed fee.
An application made under subsection (1) shall be accompanied by evidence sufficient to show that the applicant is in possession of, or commands, sufficient working capital to ensure that he can carry on the business that would be permitted under the diamond dealer's licence.
The Cabinet Secretary shall, before issuing a licence under this section, require the applicant to provide security, by way of bond or cash deposit in the prescribed form as the Cabinet Secretary shall require, for the due payment of any prescribed fees or royalties which may become payable by such dealer in the course of his business under this Act.
A diamond dealer's licence shall expire on the thirty-first day of December of the year in which it is granted.
A diamond dealer may apply for renewal of a diamond dealer's licence to the Cabinet Secretary in the prescribed form and upon payment of the prescribed fee.
The holder of a diamond dealer's licence shall not—
deal in diamonds except in accordance with the conditions set out in the licence;
engage in mineral dealings concerning diamonds, as either principal or agent, except with either the holder of a mineral right who is authorized to mine diamonds, or the holder of a diamond dealer's licence;
store diamonds except at the place or in the premises specified in the licence; or
deal in diamonds as either principal or agent, except at the place or in the premises specified in the licence.
The holder of a diamond dealer's licence shall comply with any other condition specified in the licence.
The holder of a diamond dealer's licence shall keep a register of dealings in diamonds in the prescribed form.
The holder of a diamond dealer's licence shall record in the register the following information in respect of transactions for diamonds—
the nature and weight of the diamonds;
the price of the diamonds;
the date of the transaction;
in the case of a purchase of diamonds, details of the vendor's authority to sell the minerals; and
the name and address of the vendor, purchaser or consignee.
The holder of a diamond dealer's licence shall submit to the Cabinet Secretary in the months of January, April, July and October of every year, a true copy of the register in duplicate for the preceding three months, together with a statutory declaration of the correctness thereof, and shall also produce and exhibit the register to a police officer of or above the rank of Inspector whenever required in writing by the officer.
The holder of a diamond dealer's licence may appoint an agent for the purpose of engaging in diamond dealings on behalf of the licence holder.
The appointment of an agent under subsection (1) shall not operate to exempt the holder of a diamond dealer's licence from compliance with the relevant provisions of this Act and the conditions of the licence.
Where the holder of a diamond dealer's licence appoints an agent he or she shall furnish the Cabinet Secretary with the following information in the prescribed form—
the name and registered address of the agent;
the date of the appointment of the agent; and
the duration of the instrument of appointment between the licence holder and the agent and details of the terms and conditions of the agency agreement.
An agent appointed, by the holder of a diamond dealer's licence may exercise the rights of the holder of the licence subject to, any limitations on the powers of the agent contained in the agreement or instrument of appointment between the licence holder and the agent.
person or company shall provide any mine support services subject to being issued with a licence by the Cabinet Secretary, upon recommendation of the Mineral Rights Board.
The Cabinet Secretary shall prescribe Regulations to give effect to this section.
A person shall not export a mineral otherwise than in accordance with an export permit granted by the Cabinet Secretary.
The holder of—
a mineral right;
a mineral dealer's licence; or
a diamond dealer's licence,
may apply to the Director of Mines for an export permit in the prescribed form.
The grant of an export permit to a person in accordance with this Act shall not exempt the person from an obligation to comply with the requirements of any other law relating to the export of minerals.
Where diamonds are exported pursuant to a permit issued under this section, such export shall conform to the international best practices.
The Cabinet Secretary may make Regulations to govern value addition on minerals.
Where a person imports minerals, the person shall make a declaration at the point of entry in the prescribed form.
The Cabinet Secretary may suspend or revoke a licence or permit granted under this Part if the holder—
fails to make a prescribed payment by the due date;
fails to comply with a condition specified in the licence or an obligation imposed on the holder by this Act and fails to take action to remedy a breach within a reasonable time;
makes a false statement or gives false information to the Cabinet Secretary or to a public officer exercising functions under this Act that was, which information is material to the grant of the licence or permit;
dies;
becomes of unsound mind;
is adjudged bankrupt;
is subject to financial difficulty or otherwise ineligible to hold the licence or permit; or
commits any offence under this Act.
Before suspending or revoking a licence or permit under subsection (1) the Cabinet Secretary shall give the holder of the licence or permit written notice requiring the holder—
to comply with the condition or obligation within a reasonable period of time; or
where this is not possible, to show cause within that period, why the licence should not be suspended or revoked.
A licence or permit which is revoked shall cease to have any effect.
The revocation of a licence or permit shall not prejudice any liability or obligation incurred under or in relation to the licence or permit prior to its cancellation.
Upon revocation of a licence, the holder shall deliver to the Cabinet Secretary within the prescribed period all the records which, prior to revocation or expiration, he was obliged to maintain under this Act.
A mineral right or other licence or permit granted under this Act shall not exempt a person from complying with any law concerning the protection of the environment.
A mining licence shall not be granted to a person under this Act unless the person has obtained an environmental impact assessment licence, social heritage assessment and the environmental management plan has been approved.
A provision of this Act and any right or entitlement conferred under a mineral right shall not exempt a person from compliance with the provisions of the Water Act, 2002 concerning the right to the use of water from any water resource.
A provision of this Act and a right or entitlement conferred under a mineral right shall not operate to exempt a person from compliance with the provisions of the Occupational Health and Safety Act, 2007 (No. 15 of 2007) concerning the safety of workers and mine operations.
In addition to provisions in subsection (1), the Cabinet Secretary shall make Regulations for safety and health of persons employed in mines, and the carrying on of prospecting or mining operations in safe, proper, sanitary and effectual manner.
The holder of a permit or licence under this Act shall use the land in accordance with the terms of the permit or licence and shall ensure—
the sustainable use of land through restoration of abandoned mines and quarries;
that the seepage of toxic waste into streams, rivers, lakes and wetlands is avoided and that disposal any toxic waste is done in the approved areas only;
that blasting and all works that cause massive vibration is properly carried out and muffled to keep such vibrations and blasts to reasonable and permissible levels in conformity with the Environmental Management and Coordination Act; and
that upon completion of prospecting or mining, the land in question shall be restored to its original status or to an acceptable and reasonable condition as close as possible to its original state.
The Cabinet Secretary shall not grant a prospecting licence, a retention licence or a mining licence to an applicant, unless the applicant has submitted a site mitigation and rehabilitation or mine-closure plans for approval.
The Cabinet Secretary may prescribe Regulations for site rehabilitation and mine-closure obligations.
An applicant for a prospecting licence, a retention licence or a mining licence shall provide a bond or some other form of financial security in this section called an environmental protection bond sufficient to cover the costs associated with the implementation of the environmental and rehabilitation obligations of the holder under this Act.
An environmental protection bond required under subsection (1) shall be in a form and for an amount as may be determined by the Cabinet Secretary having regard to the particular characteristics of the project.
In determining the form and amount of the bond referred to in subsection (2), the Cabinet Secretary shall take into account the amount that the applicant is required to provide by way of bond or some other form of financial security under the provisions of relevant Environmental Management and Coordination Act.
The Cabinet Secretary may release in part an environmental protection bond upon the satisfactory completion of rehabilitation measures undertaken within the duration of a licence and shall release the bond in full following the successful completion of all environmental and rehabilitation obligations mentioned in subsection (1).
An applicant or a holder of—
a mineral right;
a mineral dealer's licence; or
a diamond dealer's licence,
shall pay such fees or charges and at such time as may be prescribed, by notice in the Gazette.
The prescribed fees may include—
application filing fees;
report filing fees;
fees for access to geological data; and
fees for access to public registers.
The prescribed charges may include annual charges payable upon grant of the relevant mineral right, mineral dealer's permit or diamond dealer's licence.
The prescribed charges shall be payable annually for the duration of the mineral right, mineral dealer's permit or diamond dealer's licence.
All fees and charges payable under this Act shall be demanded and recovered in the same manner as a civil debt.
The holder of a mineral right shall pay royalty to the State in respect of the various mineral classes won by virtue of the mineral right.
The Cabinet Secretary shall prescribe the rates payable under subsection (1).
The Cabinet Secretary may require the holder of a mineral right to make returns relating to any royalties paid in such manner and within a period as may be prescribed.
Any mineral samples including core samples, removed for the purposes of testing, shall not be subject to royalty unless they exceed maximum value stipulated in regulations.
The royalties payable under sub-section (1) shall be distributed as follows—
seventy percent to the National Government;
twenty percent to the County Government; and
ten percent to the community where the mining operations occur.
A transaction for the transfer of a mineral or mineral product shall be deemed to have occurred at the point of sale and shall be equal to the arm's length value of the mineral or mineral product.
A mineral right holder who wins, extracts, produces, or disposes of minerals or mineral products shall maintain up to date records.
The records required to be kept under sub-section (1) shall include—
the quantity; and
the commercially relevant characteristics of the minerals or mineral products.
The Cabinet Secretary may designate a qualified person to inspect and examine any samples, books, records and accounts to ascertain the quantity, quality, grade or value of minerals or mineral products for the purpose of ascertaining or verifying the amount of any royalty payable.
All fees, charges and royalties payable by the holder to the State under this Act shall be paid by the holder into the designated account of the State department responsible for collecting royalties.
A payment shall be accompanied by a statement from the holder stating—
details of the mineral or mineral product;
the relevant point of sale; and
the date and the amount of royalty paid.
A copy of the statement shall be delivered to the Mining Cadastre Office.
A mineral right holder shall report the royalty liability for each month by the fifth business day of the month.
Upon receipt of a royalty payment the State department responsible for collecting royalties shall issue a receipt.
Where there is a default in payment of the prescribed royalties by a mineral right holder, the Mining Cadastre Office shall issue a thirty day notice to the mineral right holder requiring repayment of the outstanding royalties.
In the event that the mineral right holder does not pay the royalties payable within the period specified in the notice—
the Mining Cadastre Office shall record the outstanding royalties in the cadastral register; and
the Cabinet Secretary shall suspend the respective licence or permit.
In the event that the mineral right holder does not pay the royalties payable within sixty days, the Cabinet secretary shall revoke the licence or permit as the case may be.
Where the holder of mineral right fails to pay the prescribed royalty with the prescribed period, the Cabinet Secretary may prohibit the disposal of any mineral or mineral product from the mining area concerned, or from any other mining area held by that mineral right holder.
A mineral right holder may apply to the Cabinet Secretary for a reduction or temporary suspension of a royalty rate.
The Cabinet Secretary shall make Regulations to provide for the conditions and criteria for determining applications for reduction or suspension Of payment of royalties.
A fee, royalty or other charge payable under this Act and which remains unpaid shall be deemed to be a debt due to the national government which may be recoverable summarily.
The Income Tax (Transfer Pricing) Rules, 2006 (L.N. 67/2006) or successor legislation shall apply to transactions under this Act.
There shall be established and maintained an up to date computerized mining cadastre and registry system, including a register of mineral rights
The register of mineral rights shall be a public document and may be inspected in such a manner as may be prescribed in Regulations.
The register established under section 164 shall contain details of each application, grant, assignment, transfer, notice, surrender, suspension and cancellation of a mineral right.
The Cabinet Secretary may prescribe such other records and instruments that shall entered into the register.
The computerized mining cadastre and registry system shall include an online transactional facility to enable applications for granting and renewal of mineral rights to be submitted online.
The cadastre shall be a public document and may be inspected by an interested person upon the payment of a prescribed fee.
The National Land Commission shall keep a copy of the cadastre.
An authorised officer shall, where—
an error is made in the register; or
a matter is incorrectly entered or recorded in the register,
notify the person affected by the error and promptly rectify the error by correcting the error in the register.
An authorised officer may, upon being satisfied that the original of any document or instrument evidencing any right under this Act has been lost, destroyed or rendered illegible, at the request of the holder of such document or instrument and on payment of any prescribed fee—
prepare, endorse, certify and issue to the holder a copy of the original; and
enter details of the copy in the register.
An authorised officer may, on receipt of payment of the prescribed fee, issue an evidentiary certificate based on the register specified in this Part, and which may be produced in any administrative or legal proceedings as evidence of the following matters—
the grant, transfer, assignment, suspension, revocation or termination of a mineral right in accordance with the provisions of this Act;
that a specified land parcel was the subject of a mineral right on a date specified in the certificate;
that a mineral specified in the certificate was the subject of a mineral right;
that a person named in the certificate is or was the holder of a mineral right;
that a condition specified in the certificate is or was a condition of a mineral right; and
that a certificate of surrender was issued with respect to any particular land on a date specified in a certificate.
The Cabinet Secretary may, by notice in the Gazette, designate duly qualified public officers, to be inspectors of mines for such jurisdictional units as may be specified in the notice.
A mines inspector shall monitor compliance and take enforcement action and perform such other functions as may be required under this Act or specified in the notice of appointment.
The Cabinet Secretary shall issue a mines inspector with a document of identification.
The Cabinet Secretary or a mines inspector authorised by the Cabinet Secretary may without prejudice to all other written laws, at all reasonable times—
enter, inspect and examine land on which prospecting or mining operations are being conducted or land which is the subject of a mineral right;
enter into an area, structure, vehicle, vessel, aircraft or building that, in the opinion of the Cabinet Secretary or the mining inspector has been or is being used for or in connection with prospecting or mining operations;
carry out periodic inspections of premises within the jurisdictional limits which have been or are being used for or in connection with prospecting or mining operations;
enter, inspect and examine any premises where mineral dealings are being conducted;
require the production of, inspect, examine, and take copies of licences, permits, registers, records of any kind and other documents relating to this Act and the carrying out of operations authorised by a mineral right, or other licence or permit granted under this Act;
take samples of any article and substances to which this Act relates and submit such samples for testing and analysis in such a manner as may be prescribed;
seize for a maximum period of seven days any article, vessel, motor vehicle, plant, equipment, substance or any other thing which the inspector reasonably believes has been used in the commission of an offence under this Act or regulations made thereunder;
upon giving the holder three months' written notice, install any equipment on any land, premises, vessel or motor vehicle for the purposes of monitoring compliance with the provisions of this Act, or regulations made thereunder;
enter into any premises to ascertain best mining and mineral processing practices including safety and health concerns;
enter into any premises to examine and enquire into the condition and ventilation of any mine or any building used in or connected with prospecting, mining or mineral processing operations and all matters relating to safety, welfare and the health of persons employed in any such mine or building, including the inspection of the accident and incidents register;
require such changes, as may be necessary in regard to the safety of the operation and protection of employees, to be implemented within a specified time, failing which the licence holder will be considered in breach;
order the temporary cessation of operations where he considers that the mining or processing activities are so hazardous as to constitute a serious and imminent danger to life;
enter into any premises used in or connected with prospecting, mining or mineral processing operations to examine the circumstances surrounding any accidents or incidents affecting the health of employees including the subsequent actions taken by licence holder; and
with an arrest warrant and the assistance of a police officer, arrest any person whom he reasonably believes has committed an offence under this Act.
In exercising the powers under subsection (1), the inspector of mines shall carry the identification issued under this Act.
A police officer of or above the rank of Inspector who has reasonable cause to believe that an article containing diamonds or any strategic mineral is being conveyed by post or courier in connection with the commission of an offence under this Act or Regulations made thereunder or an offence has been committed, may stop or cause the article to be stopped at any point in Kenya either during transit or otherwise.
If the person who dispatched the article referred to in subsection (1) can be ascertained and is in Kenya, the police officer shall by notice in writing personally served upon that person, require him to attend, either personally or by an agent duly authorized by him in writing, at the point at which the article is detained at a specified time which shall allow reasonable opportunity for his attendance or that of that agent, in order that he or the agent may be present at the opening and examination of the article.
At the time and place specified in a notice given under subsection (2) the police officer shall open the article in the presence of the person for the time being in charge of the point of detention, and if such person or such agent attends, in the presence of such person or such agent, and shall, after examination, either releasethe article for transmission or require the same to be detained pending an order of a court of competent jurisdiction.
If the person who dispatched the article cannot be ascertained or is not in Kenya, the police officer may at any time open the article at the point at which it is detained in the presence of the person for the time being in charge of the point of detention, and may examine the same, and shall, after examination, either release the article for transmission or require the same to be detained pending an order of a court of competent jurisdiction for the disposal thereof.
A police officer above the rank of an Inspector may arrest, without warrant, any person whom he has reasonable grounds to believe has committed an offence under this Act, and shall take the person before a court within the period specified in the Constitution and the Criminal Procedure Code.
The Cabinet Secretary or a public officer may apply to the Environment and Land Court for orders compelling a person to immediately stop activities and operations for, or connected with, the search for, prospecting, or mining of a mineral or mineral deposit in Kenya where he reasonably believes that such operations are being carried out in contravention of the provisions of this Act.
Subject to Article 157 of the Constitution, an authorised officer may institute proceedings in respect of any contravention of any provision of this Act or for any offence committed under this Act.
A person who engages in activities and operations for, or connected with, the dealing, disposition, search for, prospecting, or mining, processing, refining export or import of a mineral or mineral deposit whether they are processed or unprocessed in Kenya without a valid licence or permit granted under this Act commits an offence and is liable on conviction to—
imprisonment for a term not exceeding two years;
a fine not exceeding ten million shillings; or
both, an imprisonment term and a fine.
The Court may on the conviction of a person for the offence under sub-section (1) or if it is satisfied that an offence was committed notwithstanding that no person has been convicted of the offence, order that minerals obtained in the commission of the offence be forfeited to the national government and be disposed of as the Court may direct.
A person who is found in the possession of a mineral, contrary to the provisions of this Act or any other written law, commits an offence and liable on conviction to—
imprisonment for a term not exceeding six months;
a fine equivalent to the value of the mineral but not less than five hundred thousand shillings; or
both, an imprisonment term and a fine.
A person who obstructs or hinders the holder of a mineral right, or an agent or employee of the holder, from doing an act which is authorised under this Act or under the terms of the mineral right commits an offence and liable on conviction to—
imprisonment for a term not exceeding three years;
a fine of not less than five million shillings; or
both, an imprisonment term and a fine.
A person who—
hinders or obstructs the Cabinet Secretary or an authorised public officer in the exercise of their duties under this Act or Regulations made thereunder;
fails to comply with a lawful order or requirement made by the Cabinet Secretary or an authorised public officer in accordance with this Act or Regulations made thereunder;
denies the Cabinet Secretary or an authorised public officer entry upon any land, premises, vehicle or aircraft that they are empowered to enter under this Act or Regulations made there under;
impersonates the Cabinet Secretary or an authorised public officer; or
denies the Cabinet Secretary or an authorised public officer access to records or documents kept pursuant to this Act or Regulations made thereunder commits an offence.
A person who commits an offence under this section is liable on conviction to—
imprisonment for a term not exceeding three years;
a fine of not less than one million shillings; or
both an imprisonment term and a fine.
A person who—
fails to keep records required to be kept under this Act;
fraudulently alters any records required to be kept under this Act; or
makes false or misleading statements in any application, report, notice, records or disclosure of mineral value and statements that are required to be made under this Act,
commits an offence.
A person who commits an offence under this section is liable on conviction to—
imprisonment for a term not exceeding twenty-four months;
a fine of not less than one million shillings; or
both an imprisonment term and a fine.
A person who—
contravenes a provision of this Act or regulations prescribed thereunder concerning the exercise of rights or obligations under a mineral right or the exercise of rights or obligations under any other licence or permit obtained under this Act;
contravenes a condition of a mineral right; or
contravenes a condition of mineral dealer's licence, a diamond dealer's licence, an export licence or an import licence,
commits an offence and is liable on conviction to imprisonment for a term not exceeding three years, or to a fine of not less than one million shillings, or to both an imprisonment term and a fine.
A person who—
places or deposits material in a place with the intention of misleading another person as to the mineral endowment or potential of that place; or
manipulates a mineral sample to enhance its value or in any way changes the nature of the sample with the intention of deceiving or defrauding another person,
commits an offence and is be liable on conviction to imprisonment for a term not exceeding twelve months, or to a fine of not less than fifty thousand shillings, or both an imprisonment term and a fine.
A person who maliciously places a mineral in the possession, or in the premises, of another person with intent that the other person shall be convicted of an offence under a provision of this Act or under any Regulations prescribed under this Act commits an offence and is liable on conviction to imprisonment for a term not exceeding twenty-four months, or to a fine of not less than five hundred thousand shillings, or to both such imprisonment and fine.
A person who disposes of, transports, exports or imports a mineral, otherwise than in accordance with this Act or the conditions of a licence obtained under this Act, commits an offence and is liable on conviction to imprisonment for a term not exceeding two years, or to a fine commensurate to the value of the mineral but not less than five hundred thousand shillings, or to both such imprisonment and fine.
A person who discloses confidential information otherwise than in accordance with this Act, commits an offence and shall be liable on conviction to imprisonment for a term not exceeding six months, or to a fine of not more than five hundred thousand shillings, or both a term of imprisonment and a fine.
Subsection (1) shall not apply to any disclosure made—
in accordance with a provision of this Act;
in connection with the administration of this Act;
in connection with monitoring carried out in accordance with a provision of this Act, or the enforcement of a provision of this Act;
in connection with legal proceedings under this Act;
for the preparation of Government statistics;
for the purpose of making the information available to a public officer or a consultant engaged by the Government who has been duly authorised to receive the information for the purposes of the administration of this Act; or
with the consent of the person who provided the information.
Where an offence is committed by a body corporate, the body corporate and every director or officer thereof, or, in the case of a partnership, a partner or officer in the partnership, who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, commits an offence and is liable on conviction to be penalized accordingly.
A person is personally liable for an offence whether committed by him on his own account or as an agent or employee of another person.
An employer or principal maybe held liable for an offence committed by an employee or agent against this Act, unless the employer or principal proves that the offence was committed against his express or standing directions.
A person who attempts to commit or aids and abets the commission of an offence under this Act or any Regulations made thereunder commits that offence and is liable, upon conviction, to the same punishment as provided for the principal offence under this Act.
Whenever it is necessary to ascertain whether a person is the holder of a mineral right, or the holder of a licence or permit granted under this Act, or is otherwise authorized to engage in mineral dealings, the burden of proof shall lie on the person who alleges that he or she is the holder of the licence or permit.
A person who commits an offence under this Act or regulations made under this Act for which no penalty is expressly provided, is liable on conviction to imprisonment for a term not exceeding two years or to a fine of not less than two million shillings or to both such imprisonment and fine.
Where any offence, specified under this Act or by regulations made under this Act, is committed by the holder of a mineral right, or the holder of any other licence or permit given under this Act, the Court may, in addition to any other order, further order that the mineral right, licence or permit be revoked.
The holder of a mineral right or an agent appointed by a holder who is undertaking prospecting or mining operations shall, with respect to those operations, maintain insurance cover in respect of the attached risks especially for health and safety of employees.
The holder or person mentioned in subsection (1) shall, where required by the Cabinet Secretary, furnish the Cabinet Secretary with certified copies of certificates of insurance that set out the insurance policy and any other documents that are required to demonstrate that the policy is valid, effective, and appropriate and covers the prescribed risks.
Without prejudice to any other mode of service permitted under any rule of law, a notice sent to a person under this Act shall be deemed to have been delivered to the person if it is delivered personally, or sent by registered post to the last known registered address of the person.
Neither the Cabinet Secretary nor any public officer, shall be liable to be sued in a civil court in respect of the exercise or performance, or exercise or performance, in good faith of a function under and for the purposes of this Act.
A public officer responsible for the administration of the provisions of this Act shall not be eligible for the grant of a mineral right under this Act.
A public officer responsible for the administration of provisions of this Act shall not be eligible for the grant of a mineral dealers licence, a diamond dealer's licence, an export permit or an import permit under this Act.
A public officer shall not directly or indirectly acquire or retain a share or interest in a company carrying on prospecting or mining operations in Kenya.
The Cabinet Secretary may publish and disseminate manuals, codes or guidelines relating to large scale and small scale operations, including in relation to environmental matters.
In developing manuals, codes and guidelines for the purposes of subsection (1), the Cabinet Secretary shall ensure that any such publications are consistent with guidelines issued by other Government departments, agencies and authorities.
Evidence that a person—
has complied with manuals, codes and guidelines may be used to show that the person has complied with his environmental obligations under this or any other Act; and
has not complied with the guidelines, may be used to show that the person has not complied with those obligations.
Where a radioactive mineral is discovered in the course of exercising a right under this Act or under another enactment, the holder of the mineral right or another person shall immediately notify the Cabinet Secretary of the discovery.
Where a radioactive mineral is discovered on land other than land which is subject to a mining right, the owner of the land shall immediately notify the Cabinet Secretary of that discovery.
The holder of a mineral right shall within the first week of each month furnish the Cabinet Secretary and the Director of Geology with a true report in writing of the prospecting and mining operations conducted by the holder in the immediately preceding month with respect to radioactive minerals.
The Cabinet Secretary may make Regulations necessary or convenient for the proper administration and implementation of this Act.
Without prejudice to the generality of the foregoing, the Cabinet Secretary may make Regulations prescribing—
the fees, royalties, rent and other charges that are payable under this Act or the manner in which they are to be calculated;
the royalties that are payable for specific minerals or the manner in which they are to be calculated;
the manner in which an area referred to in a mineral right shall be demarcated;
the manner in which records, accounts, books and other documents shall be kept, retained and made available for inspection;
the procedures to be followed in respect of tendering in areas that have been designated for tendering for large scale operations in accordance with this Act;
the measures to be observed in respect of radioactive and other restricted minerals including, the storage and transportation of radioactive and restricted minerals and the sale or supply of such minerals;
the measures to be included in programmes for prospecting and mining operations that require the Cabinet Secretary 's approval;
the measures to be observed to protect and rehabilitate the environment;
procedures for the grant of mineral rights and guidelines for exploration and mining in Kenya's territorial sea, exclusive economic zone and the continental shelf;
the areas that are excluded areas under this Act;
the categories of mineral rights that are not to be granted in prescribed areas;
the form of any licence, permit, form, return or other document to be used for the purposes of this Act; and
anything which may be prescribed under this Act and for the better carrying into effect the provisions of this Act.
The Regulations necessary to bring into effect the provisions of this Act shall be made within one year after the coming into force of this Act.
The following laws are hereby repealed—
the Mining Act (Cap. 306);
the Trading in Unwrought Precious Metals Act (Cap. 309); and
the Diamond Industry Protection Act (Cap. 310).
Any Regulations made under the laws repealed under sub-section (1) shall continue to be in force in so far as they are consistent with this Act until such time as they are revoked by the Cabinet Secretary.
Any right contained in a lease, prospecting right, exclusive prospecting licence, special licence and location granted under any of the laws repealed in (1) and subsisting immediately before the commencement of this Act, shall continue in force until expiration by passage of time.
Subject to sub-section (3) the holder of mineral right in respect of large scale operations as defined under this Act and relevant Regulations, shall comply with all boundary provisions of the Act and Regulations.
Notwithstanding sub-section (4), the holder of any mineral right in respect of a large scale operation as defined under this Act, shall be required, not later than eighteen months following enactment of the Act and relevant regulations, to update its mine plan with regard to conditions of employment, health and safety, the management of the environment and community social investments in order to comply with provisions of the new Act and its Regulations.
A mineral right for prospecting, mining or dealing in minerals granted prior to this Act shall not be extended or renewed but where the granted Mineral Right provided a right to apply for a renewal or extension of the right, the holder of that mineral right may apply, subject to this Act for a similar type of licence or permit as provided for under this Act on a priority basis.
Any pending applications made under the written laws specified in sub-section (1) shall be determined in accordance with the provisions of this Act and regulations.