Every mine has a last day. When it arrives, every operator, lender, regulator and host community must answer 3 questions. What must an operator do before it leaves? Who pays if rehabilitation is not done? Does liability survive the end of mining? This edition answers each of them from the law and the decided cases.

I. Introduction

A mine is a temporary use of land. The ore body is finite, and every mining plan contains, from its first draft, the date on which extraction will end. What happens on that date, and in the years that follow, determines whether a mining project leaves behind productive land and a stable community, or open pits, contaminated water and a dispute that outlives the company that caused it.

For most of its history Kenya had little practical experience of closing a large mine. That changed between 2024 and 2026. Base Titanium, which operated the Kwale mineral sands project from 2013, ended mining after depletion of its ore reserve in December 2024 and turned to decommissioning, rehabilitation and restoration under a closure plan approved by the National Environment Management Authority.¹ The exit of the largest mining operation in the country tested, for the first time and at scale, the closure provisions of the Mining Act 2016 and the environmental law that sits beside it. It also produced litigation, as residents challenged the decommissioning process and the courts were asked to decide whether it should be stopped.

This edition of The BOLD explains the law of mine closure from the ground up. It begins with the basic concepts and the meaning of the terms used in practice. It then sets out the obligations that the Mining Act and the environmental statutes impose at each stage of the life of a mine, and the financial security that is meant to guarantee them. With that foundation in place, it examines the Kwale closure and the decisions in which courts have ordered miners to restore damaged land. It closes with the gaps that remain in the framework, the questions that any court will ask when a closure is challenged, and practical guidance for operators, lenders, regulators and communities.

Figure 1. Closure obligations across the life of a mine under the Mining Act and environmental law

II. Foundational concepts

2.1 Why closure is a legal question

Mining changes land permanently. It removes vegetation and topsoil, reshapes the surface, alters the flow of water and leaves behind waste rock, tailings and, in some operations, chemicals such as cyanide. When mining ends, someone must decide what the land will become, carry out the work needed to make it safe and usable, and pay for that work. If the law does not settle those questions in advance, they fall by default on the host community and the State.

The constitutional foundation is clear. Every person has the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations.² The State is obliged to ensure the sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and to eliminate processes and activities likely to endanger the environment.³ Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment.⁴ A person who alleges that the right to a clean and healthy environment is threatened may apply to court, and the court may make any order it considers appropriate to prevent, stop or discontinue the harm, or to compensate a victim.⁵ The closure of a mine engages each of these provisions.

2.2 Key terms

The language of mine closure is technical, and several terms are used loosely in public debate. Table 1 sets out what they mean.

Table 1. Key terms in mine closure

2.3 Closure begins at the beginning

The most important principle in modern mine closure law is that closure is planned before mining begins. A plan prepared at the end of a mine, when revenue has stopped and the operator is preparing to leave, is a plan prepared at the moment of least leverage for the State and the community. The Mining Act reflects this principle. It makes a closure plan and an environmental protection bond conditions of the grant of the licence itself.⁶

III. Legal framework

3.1 Mining Act

Part XI of the Mining Act deals with health, safety and environment. It begins by providing that environmental laws prevail, so that a mineral right does not authorise the holder to breach any law concerning the protection of the environment.⁷ A mining licence shall not be granted unless the applicant has obtained an environmental impact assessment licence, a social heritage assessment and an approved environmental management plan.⁸ Table 2 sets out the provisions that bear most directly on closure.

Table 2. Closure provisions of the Mining Act

This scheme has 2 features that deserve emphasis. The first is that the bond is linked to the actual cost of rehabilitation, not to a fixed fee. Section 181 requires security sufficient to cover the costs, and it directs the Cabinet Secretary to have regard to the particular characteristics of the project.⁹ A bond that is set too low defeats the purpose of the section. The second is that release is staged and conditional. The State holds the security until the work is done, and full release follows only the successful completion of all obligations.¹⁰

The Act also requires a holder of a prospecting licence, when the licence ends, to fill in or make safe excavations, permanently preserve or make safe boreholes, comply with the environmental restoration and rehabilitation plan, and remove equipment, plant and buildings.¹¹ The same logic applies with greater force at the end of a mining licence.

3.2 Environmental Management and Co-ordination Act

The Mining Act does not displace environmental law. A mining project requires an environmental impact assessment licence from the National Environment Management Authority before it begins, and the assessment must address the decommissioning phase.¹² The Authority may issue an environmental restoration order requiring a person to restore the environment, and a commentator has observed that this power extends to the operator of a disused mine site.¹³ A person aggrieved by a restoration order may appeal to the National Environment Tribunal.¹⁴

The Authority has also published a National Guideline on Mine Site Decommissioning and Rehabilitation, developed under its general mandate in the Act.¹⁵ The Guideline treats closure as a plan prepared at the outset and revisited throughout the life of the mine. It provides that, as good practice, the plan should be submitted as part of the environmental and social impact assessment report and reviewed every 5 years or as the Authority advises, and it addresses matters such as water quality, waste management, post mining land use and financial provision for closure.¹⁶ A Guideline is not a statute, but a court asked whether an operator acted reasonably is likely to treat it as the standard against which the plan and its implementation are measured.

3.3 Shared regulation of a single site

The practical consequence is that closure is regulated by 2 authorities with overlapping mandates. Figure 2 sets out who does what.

Figure 2. Who regulates mine closure in Kenya, and the powers each holds

The overlap is not, in itself, a weakness. It does create a risk that each regulator assumes the other is supervising a particular obligation, or that their requirements diverge. Section 181(3) of the Mining Act recognises the risk in relation to financial security, by requiring the Cabinet Secretary to take account of any bond required under environmental law when fixing the amount of the environmental protection bond.¹⁷ There is no equivalent provision that coordinates the approval and supervision of the closure plan itself.

3.4 Regulations still to come

Section 180(2) contemplates regulations on site rehabilitation and mine closure obligations, and a long standing criticism of the framework has been that the detail has not followed. A 2019 review for the Law Society of Kenya observed that there was no defined formula for calculating the environmental deposit bond, that post closure was not regulated, that there was no provision for community participation during decommissioning and post closure monitoring, and that draft deposit bond regulations under the environmental statute remained ungazetted.¹⁸ In 2026 the Ministry published a regulatory impact statement for proposed Mining (Mine Health, Safety and Environment) Regulations, which places emphasis on environmental protection and sustainable mine closure obligations.¹⁹ Until regulations of that kind are made, the content of closure obligations will continue to depend heavily on the conditions attached to each licence and on the plan approved for each project.

IV. Kwale experience

4.1 From production to closure

The Kwale mineral sands project was the largest mining operation in Kenya. Over 11 years it exported about 5.2 million tonnes of titanium minerals, and its wind down contributed to a fall of about 20 per cent in the value of national mineral production in 2025.²⁰ Mining ended after depletion of the ore reserve in December 2024, and the company turned to implementing its closure plan, with an emphasis on decommissioning, rehabilitation and restoration of mined out areas.²¹ The company has stated that closure planning began before mining started, and that it rehabilitated land in phases while mining continued elsewhere on the site.²²

In April 2025 the Principal Secretary for Mining stated that about 55 per cent of the mined land had been restored, and that the National Environment Management Authority had provided guidance to ensure the land was returned to a usable state.²³ The company was reported to be seeking a 10 year extension of its special mining licence to allow post mining activities to be concluded properly.²⁴

4.2 Post mining land use

The government established a Post Mining Land Use Committee for the Kwale project in 2024, described by the then Cabinet Secretary as the first such committee in Kenya since the Mining Act was enacted.²⁵ In January 2026 the Cabinet Secretary launched the Advisory Report on Post Mining Land Use for the project after consulting county government leaders, as a roadmap for a transition intended to deliver long term social, economic and environmental benefits to local communities.²⁶

The decision on post mining land use is not merely technical. It determines who will use the land, for what purpose, and on what terms. Land that was acquired from families for mining, and then rehabilitated, may be returned to agriculture, set aside for conservation, or allocated for new development. Each choice affects the people who gave up the land in the first place, and each will be measured against the constitutional values of participation, equity and sustainable development.

4.3 Challenge to decommissioning

In February 2026 residents of the Msambweni and Kinondo area sued the Ministry of Mining, the National Environment Management Authority, Base Titanium and the County Government of Kwale over environmental degradation linked to decommissioning. On 26 February 2026 the Environment and Land Court issued conservatory orders that halted dismantling, decommissioning and land disturbance.²⁷ The residents argued that the process was opaque and that, unless the court intervened, decommissioning would irretrievably alter the environment, destroy evidence and render their petition academic.²⁸

The evidence before the court showed that the National Environment Management Authority approved terms of reference for the closure and decommissioning of the mine on 26 June 2024, and approved the mine closure and decommissioning plan in September 2024.²⁹ The company argued that the orders had been obtained through material misrepresentation and were disrupting lawful rehabilitation.³⁰ Justice Naikuni set aside the conservatory orders.³¹ The court found that the stoppage posed greater environmental and safety risks than continuation, and it directed that decommissioning proceed strictly in line with the approved mine closure plan, the existing environmental impact assessment licences and the directions of the National Environment Management Authority.³²

A half finished closure can be more dangerous than the mine it replaces.

The decision is instructive in 2 ways. First, it confirms that an approved closure plan is the reference point for the court. An operator that can show a plan approved by the regulator, and compliance with it, stands on firm ground. A community that wishes to challenge the closure must engage with the plan itself. Second, it recognises that halting decommissioning is not a neutral act. Partially dismantled plant, open excavations and unmanaged tailings may present greater risks than completion of the work, and a court asked to stop a closure will weigh those risks.

4.4 Liability after production

The end of production does not end exposure to claims. In May 2026 the Supreme Court of Kenya dismissed an appeal by Base Titanium and directed that a petition by residents of a village in Msambweni, who alleged pollution, noise and health effects and sought environmental restoration, proceed to determination on its merits in the Environment and Land Court.³³ The petition will be heard after the end of mining. Whatever its outcome, it confirms that an operator who leaves the ground does not leave the jurisdiction of the court.

Figure 3. Kwale closure, from the end of production to the courtroom

V. Courts and rehabilitation

5.1 Ordering the miner to pay

The courts have already shown how they will deal with mining that leaves land damaged. In Kasigau Ranching, a ranching company in Taita Taveta County sued after a mining permit was issued to a third party over part of its land. In October 2024 Justice Kibunja held that the Ministry had illegally issued the permit, cancelled it, and awarded the landowner damages.³⁴ The court accepted an undisputed estimate of KSh 13,000,000 for rehabilitation and decommissioning of the mining locations, ordered the miner alone to bear that cost, and directed that the money be used for restoration under the supervision of the National Environment Management Authority, even though the Authority was not a party.³⁵

The case establishes 3 practical points. The cost of rehabilitation is recoverable as a distinct head of loss. The person who caused the damage bears that cost, in application of the principle that the polluter pays. And the court may enlist the environmental regulator to supervise the restoration it orders.

5.2 Restoration orders as a remedy

Outside mining, the Environment and Land Court has issued restoration orders with fixed timelines and reporting obligations. In Kimeu, a 2025 decision arising from pollution of land and a river, the court ordered the respondent to restore the damaged land, soil, surface and underground water and riparian habitat to its original status or to the satisfaction of the court within 120 days, and to file a report.³⁶ At the apex, the Supreme Court has reaffirmed the constitutional right to a clean and healthy environment and held state agencies to account for failing in their duty to protect it.³⁷ These decisions tell operators that a court asked to supervise the rehabilitation of a closed mine has the tools to do so.

5.3 When closure collides with a dispute

The Karebe gold mine in Nandi County illustrates a different risk. A dispute over the lease of the land on which the mine stood led to court orders and loss of access to part of the site. The company told the Environment and Land Court that it would need at least 3 years to neutralise cyanide in its storage facilities and rehabilitate the mine, and that the National Environment Management Authority would have to approve the closure.³⁸ The Ministry advised the court in 2020 that the company should be given 5 years to manage the waste, because cyanide would take a long time to leach from the tailings to acceptable concentrations.³⁹ The company warned that its tailings dam had been left unattended because of an order barring activity on the land.⁴⁰

Karebe shows that closure obligations do not wait for commercial or land disputes to be resolved. A tailings facility must be managed whether or not the lease has expired. Courts dealing with land disputes on mine sites must therefore make orders that preserve the ability of someone, whether the operator or the State, to carry out the work that the environment requires.

Table 3. Lessons from the decided cases on mine closure and rehabilitation

VI. Who pays

6.1 Order of responsibility

The law contemplates a clear order of responsibility for the cost of closure. Figure 4 sets it out.

Figure 4. Who pays for closure, in the order the law contemplates

The operator bears the primary obligation, under its licence, its approved plan and the principle that the polluter pays. The environmental protection bond stands behind the operator, so that if the operator fails, the State can draw on the security. Where the bond is insufficient, the State may pursue the operator, its assets and, where the facts allow, those who controlled it. Only when all of these fail does the cost fall on the public, through the duty of the State under Article 69 to restore the environment.

6.2 Assets and exit

As the Kwale exit approached, the company stated publicly that its assets were private property, which it had the constitutional right to dispose of as it saw fit, including by selling them internationally to fund rehabilitation and mine closure costs.⁴¹ The statement captures a tension present at every closure. The operator needs to realise value from its assets to fund the work. The State and the community want assurance that the work will be completed before those assets, and the company, leave the country. The environmental protection bond is the instrument that reconciles these interests. Where it is sufficient and properly held, the State need not be concerned with the fate of individual assets. Where it is not, the State has every reason to be.

VII. Gaps in the framework

The Kwale closure has exposed several areas in which the law remains incomplete. Table 4 summarises them.

Table 4. Gaps in the mine closure framework

The decided cases already point to how courts will fill some of these gaps. Where the law is silent on community participation, Articles 10 and 69 supply the principle, and a closure plan approved without meaningful consultation is open to challenge. Where the bond is inadequate, the polluter pays principle and the remedies under Article 70 allow the court to order the operator to bear the cost directly.

VIII. Next round

8.1 Questions a court will ask

Kwale will not be the last closure. Large scale gold, rare earth and industrial mineral projects now under consideration will each reach the end of production. Any court asked to examine a closure is likely to ask the questions in Table 5.

Table 5. Questions that any court is likely to ask when a mine closure is challenged

8.2 What each party should do

Table 6. Practical guidance drawn from the law and the decided cases

IX. Conclusion

The Mining Act 2016 adopted the modern principle that closure begins at the beginning. It requires a closure plan and an environmental protection bond before a licence is granted, notice before mining ceases, and completion of rehabilitation before security is released. Environmental law adds a licence that must address decommissioning, a regulator with power to order restoration, and a constitutional right that any person may enforce in court.

Kwale has shown that these provisions work best when they are taken seriously from the start. An operator that planned for closure, rehabilitated progressively and secured approval of its plan was able to persuade a court that its decommissioning should continue. The same experience has shown where the law is incomplete, particularly in the absence of closure regulations, a formula for bonds and a defined role for communities. The next closures will test whether those gaps are filled by Parliament and the Ministry, or by the courts on a case by case basis. For operators, lenders and communities alike, the lesson is the same. The last day of a mine is a legal event, and it is decided long before it arrives.

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.