The Sh70 billion Lake Turkana Wind Power Project is in limbo after the company failed to overturn an earlier High Court ruling that the land on which the project sits was acquired irregularly and without due process.
Residents of Laisamis constituency and Karare ward in Marsabit sued the company in October 2014 over the acquisition of two parcels of community land totalling 150,000 acres in Loiyangalani, seeking the cancellation of title deeds and the nullification of the project.
The suit, filed by Mohamud Iltarakwa, Kochale Somo Chale, Issa Jitewe Gambare, David Arakhole, William Lengoyiap and Sekotey Seye on behalf of the affected communities, names Lake Turkana Wind Power Ltd, the Marsabit County Government, the Attorney General, the Chief Land Registrar and the NLC as defendants.
The residents said the acquisition of the land had caused them economic and social hardship, citing the Galgulame cultural site in Serima village among the alienated areas, arguments the company refuted by saying the land was not fenced and therefore accessible for community use.
The county government responded that the land alienation was legal and in accordance with the relevant laws, and that the aggrieved residents of Serima and Loiyangalani were not present when the land was acquired.
The National Land Commission said there had been public participation before the land was acquired, and the Attorney-General and Chief Land Registrar denied that the plaintiffs were residents of Laisamis, where the land is located.
However, in a judgment delivered on October 19, 2021, the Environment and Land Court in Meru found that the law had not been followed in the allocation of the land and consequently gave the defendants, with the exception of the power company, one year to regularise the impugned title deeds.
Failure to comply with the order, the three-member bench of Justice Peter Njoroge (presiding), Justice Yuvinalis Angima and Justice Grace Kemei warned, would result in the automatic cancellation of the title deeds and the return of the land to the community.
However, the court dismissed the plaintiffs' prayer for annulment of the project, which is a critical source of low-cost renewable energy for Kenya and is Africa's largest wind energy project.
It has 365 wind turbines, each with a generating capacity of 850KW, producing a total of 300MW of electricity.
In blatant defiance of court orders, none of the four defendants made any effort to comply with the existing law on land conversion.
In April last year, six months after the expiration of the amnesty, the power producer filed an application seeking a review of the judgment on the grounds that the respondents had failed to act and had no mandate to regularise the process, as well as insufficient time to comply with the orders.
"The court did not consider the land conversion process under the Constitution of Kenya, the Community Land Act and the Community Land Regulations at the time of the judgment and did not receive evidence and submissions on the application of practices and procedures under the Land Act," the company said.
The plaintiffs' counter affidavit and grounds of opposition, filed on 3 October last year, and a preliminary objection dated 22 November the same year, were struck out by the court on the grounds that they were filed out of time and without the requisite leave of court.
The court had a month earlier allowed the first respondent to obtain an expert opinion on the land conversion process and in a submission dated March 23, 2022, received through Dr Winfred Njeri Mwagu, reported that the process could take five to seven years.
"The respondents have no power, mandate and role under the Community Land Act to initiate the regularisation of titles and should they attempt to do so, they will be challenged in the future for acting in contravention of the law resulting in endless litigation."
Defendants' application dismissed.
In a judgment delivered virtually and in open court at the ELC in Isiolo, the bench dismissed as incorrect the respondent's argument that it had no powers to implement the previous orders.
The judges outlined the process of land conversion as contained in the Community Land Act, starting from the initial stage of the Chief Land Registrar appointing a Community Land Registrar to oversee the process of registration of community land as a legal entity.
Registration of the community claiming interest in or right over the community land into a corporate body, election of the community land management committee, adjudication, survey and cadastral mapping of the land and submission to the registrar for registration.
"There is no evidence adduced to show that the four respondents had appointed the Community Land Registrar and that the community had been incorporated as a body corporate under Section 7 of the Community Land Act," reads part of the judgment.
Further, the Community Land Management Committee had not been incorporated and there was no evidence that the Land Cabinet secretary had taken steps to develop and publish a comprehensive adjudication programme, the judges said.
The power producer, the judges said, had shown no interest in approaching the other defendants to comply with the previous judgment.
An extension of the deadline was inappropriate because the regularisation process had not started, and the defendant's argument that the four other defendants had no mandate in the process further weakened the case. "An extension of time will serve no purpose as the parties, by their conduct, appear unwilling to commence the process of converting the land... The defendant has failed to establish any grounds for orders of review and, therefore, we deny the motion for reconsideration of our prior decision," the judges said on 22 May 2023.
The company's requests for additional evidence in the form of expert testimony and for a structural injunction were also denied.
The court ruled that the company's acquisition of the properties in question was unlawful and unconstitutional.
"The application for stay of execution is hereby dismissed as it is a dismissal of an application which negates connotations that do not lend themselves to the grant of a stay," the bench ruled.
The development provides some relief to the plaintiffs and brings them a step closer to recovering the community land, although the defendant could still appeal the decision.