Appeal Court upholds ruling halting Sh71b Marsabit power project

An ambitious plan by the Government to add 300MW wind power and 50MW solar power to the national grid may not happen any time soon.

This is after the Court of Appeal upheld a decision by the High Court to halt the $690 million (Sh71 billion) project that would have helped the country tap green energy resources in Northern Kenya.

Court of Appeal judges Salkale Ole Kantai, Hannah Okwengu and Erastus Githinji, in separate judgements, were unanimous that High Court judge George Odunga did not err in finding that there were grave issues of concern in allocation of land for the project and ordering that Gitson Energy Ltd should not continue with the project. Justice Odunga had quashed the gazette notice issued on the project, noting that the National Land Commission was not involved in land allocation.

He also ruled that the commissioner of lands had no authority to gazette the said land.

The project had been allocated 60,705 acres of community land in Marsabit County, but the court found that the host community had not been involved.

“I have no doubt that the wind energy project that had been earmarked for the disputed land is a commercial investment venture of a large magnitude with great social-economic prospects. Nonetheless, the setting apart of 150,000 acres of community land to a private company is equally a drastic step and therefore it is important that the process of disposal of such land is flawless,” ruled Justice Okwengu.

“In my view, the process of setting apart the disputed land in favour of the appellant was tainted as the laid-down procedure was not followed. In the final analysis and for reasons that are stated herein, the order of certiorari quashing the gazette notice was proper.”

Politicians led by North Horr MP Francis Chachu Ganya through lawyer Okong’o Omogeni took Gitson Energy, a company owned by Kenyans living in the US, claiming the Marsabit County Government had overstepped its mandate in allowing the firm to set up a power plant in the area.

Justice Okwengu found that the county government ought to have consulted the National Treasury and the Commission on Revenue Allocation before gazetting the land for private use.

The firm took a feasibility study in 2007 and there were positive results that the speed of wind in the area would be enough to power the project.

This ambitious project had also got endorsement from the United Nations Development Programme (UNDP) as a part of Kenya’s sustainable development programme.

Gitson told the court that by the time the land was set aside for use, NLC did not exist.