Tough year for titanium firm as law suits pile up

The year 2020 has been a unique and challenging year for many companies, if not all of them, with mining and exploration company, Base Titanium’s ongoing stand-off with locals over the use of their land, continuing unabated.

As many firms struggled to survive economic shocks of coronavirus pandemic, families living around Base Titanium mining plant in Kwale County were piling more pressure, citing disregard for court orders.

The 24 households had been given an order in 2001 by Justice Charles Yano at the high court in Mombasa requiring mineral sands operator to relocate them to a different place and compensate farmers in the area.

However, in 2019 they said 14 families filed a petition in the same court seeking an order to stop the mining process due to health problems brought by the said process until the company follows the courts order of relocating them.

The 14 families from both Nora and Nguluku villages in Kwale County told the court through their lawyer Pauline Mwenje that they are greatly affected by the presence of Titanium in the air and water.

They claim that the contaminated air and water has led to irritation of the nose, throat and lung infection.

The Australian company which took over from Tiomin Ltd for a period of 15 years from 2010  to 2025 is tasked with mining Limenite, Rutile and Zircon minerals in Kwale. 

Gained ground

Base Titanium adopted all activities run by Tiomin including court cases.

They are accused of having fully gained ground, prospecting and mining with undue regard to the environmental, social-economic effect being imposed on the said families surrounding them. 

Further, they are said to be unfaithful as they have been promising the families of possible relocation and have failed to commit to the demands made by the families on compensation for the disturbances related to dislocation and adverse effects.

The families further say that any eviction conducted by the company be termed illegal before the families are fully compensated.

Residents of Nguluku area say that over the years they have engaged the company, the government and all the relevant stakeholders with the aim of having a resettlement plan as the company has not given a concrete plan on how they propose to relocate them.

The company suffered another blow as the Supreme Court is yet to give a judgment on whether they should continue to pay cess levies imposed on them by the County government of Mombasa.

In the lower court, Base Titanium filed a petition which involved a question of interpretation of the power of a County government to levy taxes or charges.

They contended that pursuant to the lease, the appellant is clothed with the right to mine and process titanium and zircon minerals from Kwale County. 

It is also authorised to export the processed minerals by sea. 

This entails the appellant ferrying the minerals from Kwale to the Mombasa Port by road and that the County government of Mombasa was illegally taxing the said minerals.

The lower court heard that the county charges a uniform charge of Sh3,000 to every commercial  truck carrying goods weighing over seven tonnes regardless of the nature of goods on board and that the company’s trucks have not been specifically targeted.

The court at the time made a ruling that the County government has a power to levy taxes and charges for services that they provide including road transport services according to the constitution.

Lower court

In the high court, the mining company is yet to get a judgment despite six years of  court battle with the county government of Mombasa.

Base Titanium have accused the lower court judges erred in interpretation and application of article 209(4) of the constitution which states that the national and county governments may impose charges for services.

They are further asking the judges to order the county government of Mombasa to refund Sh1.5 million  and any other charges incurred during the dates of the mandatory injunction.