An international tribunal has dismissed with costs a USD 2,000 million case filed against the Government of Kenya.

The International Center for Settlement of Investment Disputes (ICSID) has ruled that Cortec Mining Kenya (PTY) Limited, Cortec (Pty) Ltd and Stirling Capital Limited pay the Government of Kenya costs amounting to US$ 3.6 million.

In the ICSID CASE No. ARB/15/29 ruling dated 22 October 2018 and received at the Office of the Attorney General on Tuesday 23 October 2018, the Claimants’ claims were dismissed with costs to the Respondent in the sum of US $3,226,429.21 plus US $322,561.14 in ICSID costs.

The case arose out of a mining project at Mrima Hill in Kwale County, home to one of the world’s largest undeveloped niobium and rare earth deposits. Rare Earths Elements is a phrase used to describe the group of 15 chemical elements in the “lanthanide group” for which demand has grown dramatically in the past two decades, in large part due to their expanding use in advanced technologies. Niobium is a rare earth used in the manufacture of specialized steel products (other rare earth elements include lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium and lutetium).

Mrima Hill is a gazetted forest area covering an area of approximately 376.8 hectares and is home to a natural forest rich in biodiversity and rare species. The area is host to 14 sacred shrines (“kaya” among the Digo, a sub tribe of the Mijikenda community in the Coast) and was also designated as a natural reserve and national monument in 1989 and 1992 respectively.

The Government of Kenya was sued for alleged ‘expropriation’ of the mining license. The Kenyan Government’s position was that “there was no expropriation of the “purported license [Special Mining LicenseNo. 351] issued by the Government since the license was void ab initio for illegality and did not exist as a matter of law, as held by the Courts in Kenya in earlier local proceedings relating to the same case.

Kenya was represented in the matter by a team of State Counsel including Ms. Njeri Wachira, Deputy Solicitor-General, Ms. Pauline Mcharo, Mr. Emmanuel Bitta, Ms. Christine K. Omwakwe, Mr. Charles Wamwayi. Leading legal firms DLA Piper LLP, London and Iseme Kamau and Maema Advocates of Nairobi assisted the team.

Dated 23rd OCTOBER 2018
COMMUNICATIONS OFFICE

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