Before a community can say yes or no to a mine, the law must answer 3 questions. Whose consent is required before mining on community land? Who may negotiate and agree for a community? Who may go to court on its behalf? This edition answers each of them from the law and the decided cases.

I. Introduction

When a mining company asks a community for permission to mine, it must first answer a question that sounds simple and rarely is. Who is the community, and who may speak for it? A village may have a chief, a council of elders, an elected member of the county assembly, a self help group, a liaison committee formed for the project and a registered community land management committee. Each may claim to represent the community. Each may say something different. An agreement made with the wrong body may later be challenged as made with no one at all.

The question arises at every stage of a mining project. It arises when consent to a mineral right is sought over community land. It arises when benefits are negotiated in a community development agreement and when royalties are allocated to a host community. It arises when compensation and resettlement are agreed. And it arises in court, when a few residents bring a case on behalf of many, or when an operator argues that those before the court have no authority to speak for anyone but themselves.

This edition of The BOLD examines the law that answers those questions. It begins with the basic concepts of community and community land, and the difference between consultation and consent. It then sets out the constitutional and statutory framework under the Mining Act and the Community Land Act, including an unresolved overlap between them. With that foundation in place, it examines the decided cases on consent before mining, on who negotiates benefits, and on who may sue for a community, including the judgment of the Environment and Land Court at Siaya delivered on 29 October 2026. It closes with the regional standard of free, prior and informed consent, the questions a court will ask, and practical guidance for operators, lenders, regulators and communities.

Figure 1. Whose consent is required before a mineral right is granted, by category of land

II. Foundational concepts

2.1 What the law means by community

The Constitution recognises community land as 1 of 3 categories of land, alongside public and private land, and vests it in communities identified on the basis of ethnicity, culture or similar community of interest.¹ The Community Land Act gives the idea legal shape. It defines a community as a consciously distinct and organised group of users of community land who are citizens of Kenya and who share common features such as ancestry, culture or a community of interest.² The definition matters because it requires organisation as well as identity. A group of people who share a place is not, by that fact alone, a community that can hold land or give consent under the Act.

2.2 Categories of land and sources of consent

Because all minerals belong to the people of Kenya and are held by the national government, no landowner can sell or withhold the minerals themselves. What a landowner or community can do is grant or withhold access to the surface. The Mining Act therefore requires consent according to the category of land, as Table 1 shows.

Table 1. Who gives consent to a mineral right, by category of land

Consent is deemed to have been given where the registered owners of community land have entered into a legally binding arrangement with the applicant or the Government allowing mining, or an agreement with the applicant on the payment of adequate compensation.³ Consent given before any change in ownership of the land remains valid for as long as the mineral right subsists.⁴

2.3 Consultation, participation and consent

These 3 ideas are often used as if they meant the same thing. They do not, and the difference is often decisive. Table 2 explains them.

Table 2. Consultation, participation and consent compared

III. Legal framework

3.1 Constitution

The Constitution establishes participation of the people as a national value, and it obliges the State to encourage public participation in the management, protection and conservation of the environment.⁵ It protects the right to property, including community property.⁶ It also requires that a transaction involving the grant of a right or concession for the exploitation of a natural resource be subject to ratification by Parliament where it falls within the classes prescribed by statute.⁷ Parliament has prescribed those classes, and the Mining Act requires mineral agreements to be submitted to the National Assembly and the Senate for ratification.⁸

3.2 Community Land Act

The Community Land Act governs how a registered community makes decisions. A registered community has a community assembly consisting of all its adult members. The quorum for decision making is not less than 2 thirds of the assembly. The assembly elects between 7 and 15 of its members to form the community land management committee, and a decision to dispose of or otherwise alienate community land binds the community only if it is supported by at least 2 thirds of the registered adult members.⁹

Section 36 deals directly with investment in community land, which includes mining. Figure 2 sets out its thresholds.

Figure 2. Decision thresholds for an investment agreement over registered community land

An agreement relating to investment in community land must be made after a free, open consultative process and must address an environmental, social, cultural and economic impact assessment, stakeholder consultation and involvement of the community, continuous monitoring of the impact of the investment, payment of compensation and royalties, rehabilitation of the land upon completion or abandonment, mitigation of negative effects, and capacity building and transfer of technology.¹⁰ The agreement may be made only between the investor and the community.¹¹ No such agreement is valid unless it is approved by 2 thirds of the adult members at a community assembly meeting called to consider the offer, at which a quorum of 2 thirds of the adult members is present.¹² Read literally, the 2 thresholds together could allow an agreement to pass with the support of about 44 per cent of all adult members, although the draft regulations were read as requiring the support of 2 thirds of all adult members rather than 2 thirds of those attending.¹³ The Community Land Regulations add that the management committee negotiates the terms in the best interests of the community, and that a benefit sharing plan must be approved by 2 thirds of the assembly.¹⁴

These provisions answer the question of who speaks for a registered community with unusual precision. It is not the chief, the elders, the committee or a liaison group. It is the assembly of adult members, acting at a properly convened meeting by the prescribed majority. The management committee negotiates, but it does not decide.

3.3 Unregistered community land and an unresolved overlap

Much community land in Kenya has not yet been registered under the Community Land Act. The Act provides that county governments hold all unregistered community land in trust on behalf of the communities for which it is held, that they hold in trust any compensation paid for its compulsory acquisition, that any transaction in relation to it must comply with the Act, and that a county government shall not sell, dispose of, transfer or convert it for private purposes.¹⁵ The Mining Act, however, gives the consent role for unregistered community land to the National Land Commission.¹⁶

The 2 statutes were enacted in the same year and do not cross refer on this point. An operator seeking consent over unregistered community land therefore faces a choice that the law has not clearly made for it. The prudent course is to treat the requirements as cumulative. Consent should be obtained from the National Land Commission as the Mining Act requires, the county government should be engaged as trustee under the Community Land Act, and the community itself should be consulted in a manner that would satisfy section 36 if the land were registered. An operator that relies on a single consent, from a single body, takes the risk that a court will later treat that body as having lacked authority to give it.

3.4 Mining Act after the licence

The question of who speaks for a community does not end when the mineral right is granted. The holder of a mining licence must conclude a community development agreement with the community, which the regulations require to be prepared by the holder and the representatives of the community. Where several communities are affected, a single agreement may include them all, although a community in a different county may have a separate agreement. Disputes may be referred to the Cabinet Secretary, with an appeal to the Environment and Land Court within 30 days, and approved agreements are published on the website of the Ministry.¹⁷ The regulations provide for a community contribution, which in a recent large gold project was described as 1 per cent of the value of gold produced.¹⁸

The Mining (Mineral Royalty Sharing) Regulations 2026 add a further layer. They govern the 10 per cent share of royalties payable to host communities, and they require the Ministry to identify and publish beneficiary communities within 30 days of issuing mining licences.¹⁹ Identification of the community is therefore no longer a matter of negotiation between operator and residents alone. It is a regulatory act that may itself be challenged.

IV. Consent before mining

4.1 Mui Coal Basin

The leading decision on community involvement before mining arose from the concession of coal deposits in the Mui Basin in Kitui County. Members of the local community, and a gazetted liaison committee, challenged the award of the concession on grounds that included lack of public participation, failure to involve the county government and the absence of parliamentary ratification.²⁰ A bench of 3 judges of the High Court at Machakos dismissed the consolidated petitions on 18 September 2015.²¹

The judgment nevertheless made important findings. The court held that public participation is an established and justiciable right in Kenya, and it set out principles for assessing it.²² The test is reasonableness, and no single programme can be prescribed. Participation must include access to relevant information. It does not require that everyone give their views, but those most affected should have a greater say, and a programme that deliberately excludes genuine stakeholders is ineffective and unlawful. The views received must be considered in good faith, and the decision maker may not merely go through the motions.²³ On the facts, barazas, the liaison committee, delegations and a stakeholder workshop attended by about 300 community representatives met the threshold, subject to continuing engagement.²⁴ The court held that negotiation over natural resources must be done in consultation with the county government, but excused the past lapse because the county government did not exist for much of the process.²⁵ It found that Article 71 did not yet bar the concession because the enabling legislation had not been enacted.²⁶ It directed the State and the concessionaire to continue to engage the community and provide reasonable opportunities for participation during the environmental impact assessment and resettlement.²⁷

Mui Coal Basin is a decision about participation, not consent. It shows that a court will examine the quality of engagement closely, but it does not give the community a veto. It also predates the Mining Act 2016, the Community Land Act 2016 and the ratification statute, each of which has since added requirements that the court did not have to apply.

4.2 Siaya judgment of October 2026

On 29 October 2026 the Environment and Land Court at Siaya delivered judgment in consolidated constitutional petitions challenging a proposed gold project in Ramula and neighbouring areas.²⁸ As reported, the court held that a prospecting licence does not give automatic access to private property. It barred the company from entering, prospecting, drilling, clearing vegetation or excavating on private land in the affected sublocations without the express consent of the registered landowners. It barred the mining authorities from issuing a mining licence on the pending application until documentary evidence of consent from all affected private landowners is provided. It directed that objections to the application be reconsidered afresh, required that a framework agreement on benefit sharing be concluded before any licence is issued, and barred resettlement or displacement of residents except as the Mining Act allows.²⁹ The Ministry stated that the judgment did not cancel, suspend or revoke the prospecting licence, which it said remained valid.³⁰

The judgment applies section 37 of the Mining Act with full force at the prospecting stage, and it treats consent as a fact that must be proved by documents, landowner by landowner. It also links consent to benefit sharing, so that the community framework must be in place before the mining licence is granted. The judgment is recent and may be appealed, and this edition does not comment on the underlying dispute. Its reasoning, however, will be relied on in every similar case until an appellate court says otherwise.

4.3 Consent is not a formality

The principle that a mineral right does not override the consent of the landowner is not new. In an earlier dispute under the repealed Mining Act, involving a ranch in Taita Taveta, the Court of Appeal treated as clearly arguable the proposition that the Minister could not send prospectors onto land without the consent of the owner.³¹ Nearly 2 decades later, in a dispute over the same ranch, the Environment and Land Court held that the Ministry had illegally issued a mining permit that resulted in trespass and damage to the land, cancelled the permit and awarded the landowner about KSh 28 million.³² The lesson is that a permit issued over land without the required consent is vulnerable to cancellation, and that the regulator as well as the miner may be liable.

Figure 3. Community consent and representation in the courts, 2006 to 2026

V. Who negotiates for the community

5.1 Liaison committees and their limits

Mining projects commonly create liaison committees to manage relations with host communities. Such committees can be valuable channels of communication. They are not, without more, the community. In Mui Coal Basin the court held that the absence of the liaison committee from the negotiation of the benefit sharing agreement did not negate the participation that had occurred, which shows that a court will look at engagement as a whole rather than at any single body.³³ In Mangeli, residents who had referred their compensation demands to a local liaison committee argued before the court that the committee was partisan and that its decisions were void.³⁴ An operator that relies on agreements made with a committee whose mandate is contested may find those agreements reopened.

5.2 Representatives of the community

The Community Development Agreement Regulations require the agreement to be prepared by the holder and the representatives of the community, but the question of how those representatives are chosen, and how their mandate is proved, is answered most clearly by the Community Land Act for registered communities. For registered community land, the assembly decides and the management committee negotiates. For unregistered land, and for communities defined by royalty sharing regulations rather than by land, the law is less precise, and the risk that an agreement will be challenged by a rival group is correspondingly greater.

Table 3 sets out the bodies that commonly claim to speak for a community in a mining project, and the legal basis, if any, for their authority.

Table 3. Who claims to speak for a community, and on what authority

VI. Who may sue for the community

6.1 Standing under the Constitution

The Constitution gives wide standing to enforce the Bill of Rights. Proceedings may be brought by a person acting on behalf of another who cannot act in their own name, by a person acting as a member of or in the interest of a group or class of persons, by a person acting in the public interest, or by an association acting in the interest of its members.³⁵ Any person may also institute proceedings claiming that the Constitution has been contravened.³⁶ Under the Civil Procedure Rules, where numerous persons have the same interest, one or more of them may, with the permission of the court, sue on behalf of all of them.³⁷

6.2 Representative claims in the Kwale cases

The Kwale litigation shows how these provisions operate in mining disputes. The pollution petition that reached the Supreme Court in 2026 was brought by a resident on his own behalf and on behalf of 65 others.³⁸ A later claim against the same operator was brought by a resident on behalf of 179 others.³⁹ The Mangeli claim was brought on behalf of all owners and squatters in 3 villages affected by mining.⁴⁰ Each of these forms allows a community, or part of it, to bring a claim that no single member could afford to bring alone.

6.3 Risks of representative litigation

Representative litigation carries risks for both sides. Figure 4 sets out the routes to court and the questions each raises.

Figure 4. Routes by which a community claim reaches court, and the questions each raises

For claimants, the principal risk is a challenge to authority. An operator may argue that the named petitioners do not represent the community, that other members disagree, or that the claim has been brought without the notice that a representative suit requires. For operators, the principal risk is the opposite. A judgment or settlement in a representative claim may bind only those who were properly represented, so that other members of the community remain free to sue. In Mui Coal Basin, individual petitioners were permitted to withdraw from the consolidated proceedings while the claim continued.⁴¹ The lesson for both sides is that the authority of representatives must be established early, recorded in writing and, where the Community Land Act applies, traced to a decision of the assembly.

VII. Regional standard

7.1 Free, prior and informed consent

Kenyan statutes speak of consent and consultation, but the regional human rights system has articulated a stronger standard for indigenous peoples. In its merits judgment of 26 May 2017 the African Court on Human and Peoples’ Rights found that the expulsion of the Ogiek from the Mau Forest without prior consultation violated their rights, including the right to property.⁴² In its reparations judgment of 23 June 2022 the Court ordered Kenya to adopt all necessary measures to ensure that the Ogiek are effectively consulted, in accordance with their traditions, and that their right to give or withhold their free, prior and informed consent is respected in relation to any development, conservation or investment project on Ogiek ancestral land. It also ordered payment of KSh 57,850,000 for material prejudice and KSh 100,000,000 for moral prejudice into a community development fund.⁴³

In a compliance order following a hearing on 4 June 2025, the Court found evidence that major decisions affecting the Ogiek had been taken without prior, meaningful consultation, and held that its orders on consultation and non repetition had not been fully implemented.⁴⁴

7.2 Relevance to mining

The Ogiek judgments concern conservation and land, not mining, and they apply to a people recognised as indigenous. Their significance for mining lies in the standard they set. Where a mining project affects the ancestral land of a community that may claim indigenous status, the community will invoke the right to give or withhold consent, and Kenyan courts may be asked to read the Mining Act and the Community Land Act consistently with the obligations that the African Court has found binding on Kenya. Lenders that apply international performance standards will often require consent of this kind in any event.

VIII. Next round

8.1 Questions a court will ask

Large scale gold projects in western Kenya, renewed interest in rare earths and new royalty sharing rules mean that questions of community consent and representation will reach the courts with increasing frequency. Any court is likely to ask the questions in Table 4.

Table 4. Questions that any court is likely to ask about community consent and representation

8.2 What each party should do

Table 5. Practical guidance drawn from the law and the decided cases

IX. Conclusion

The law has moved a long way from the assumption that a mining licence, once issued by the State, entitles its holder to enter any land within its boundaries. The Mining Act requires consent according to the category of land. The Community Land Act defines with precision how a registered community decides, and requires an investment agreement to be approved by the community itself. The courts have insisted that consent be proved, that participation be genuine, and that the authority of those who speak for a community be shown.

What remains unsettled is the position of the many communities whose land is not yet registered, where the Mining Act and the Community Land Act point to different bodies, and the extent to which the regional standard of free, prior and informed consent will shape domestic law. Until Parliament or the appellate courts resolve those questions, the safest course for every party is the same. Operators should obtain consent from every body that may have authority to give it. Communities should organise themselves so that their decisions are clear and recorded. And everyone should remember that, in law, a community speaks through its members, and not through whoever claims to speak for it.

Benson Odiwuor is an Advocate of the High Court of Kenya based in Nairobi, whose practice focuses on dispute resolution in the regulated industries, including mining, oil and gas, banking and project finance. He is the editor of The BOLD, Benson Odiwuor’s Legal Digests, a legal newsletter on dispute strategies and legal developments in the regulated industries of Kenya. Subscribe to The BOLD here.

 For inquiries, contact the author at info@bensonodiwuor.com.