Court of Appeal to hear landmark appeal by US firm over Lamu wind project

LAMU, KENYA: The Court of Appeal will start hearing an appeal by an American firm seeking to invest Sh23 billion in wind power generation in Lamu, on October 9.

Cordisons International (K) Limited is appealing a May 25 High Court decision that dismissed its application to compel the National Land Commission NLC to approve its application for land lease instruments to enable it launch its investments.

The Americans had accused NLC of disregarding its application for the instruments that had been pending since 2009 and bias for approving the application for a rival investor Kenwinds Limited which applied in 2015.

On February 7 last year NLC wrote a letter of allotment offering a 1,332 acre land parcel in Lamu to Kenwind to invest in wind power on a lease of 99 years against an April 18 2016 advise of the Lamu County government. The county government made several other similar objects in August 2016 in letters to the NLC.

Cordisons contended that the land awarded Kenwind overlapped the site they have sought to make an investment in wind power since 2009.

Following an agreement among lawyers for all the parties on Friday a date was set for the start of the appeal:
“Civil Appeal No 91 of 2018 at the Court of Appeal in Malindi shall proceed for hearing on 9th October 2018,” says a consent agreement signed by lawyers acting for all parties in Cordisons International (K) Limited v Chairman, National Land Commission and 5 others.

Through a similar consent before the Court the parties also agreed to withdraw an application by the Americans seeking interim orders barring the commission, Kenwinds  and the Lamu county government or their agents from proceeding with Kenwinds’ investment in the county pending the determination of the appeal coming up in two weeks.

In the matter it lost at the High court, Cordisons had accused NLC of bias and illegal activity alleging there was no just reason to deny it the instruments despite receiving all the statutory approvals from the Lamu County government, its preceding municipal authority and government agencies.

In the landmark judgement Justice James Olola of the Land and Environment Court in Malindi ruled that NLC acted legally in denying Cordisons’ application because the Americans applied for approval of the instruments from the wrong party-the county government-yet only the NLC has the legal and constitutional mandate to allocate or lease public land to private investors.

The judge ruled that county governments have no power in legislation or under the constitution to perform these functions.

The judge based his conclusion on a 2014 Supreme Court advisory that delineated the powers of the commission on land matters vis a vis county and national governments and his understanding of the commission’s statutory authority under the National Land Commission Act, the Land Act and the Land Registration Act.

Cordisons International filed a judicial review application in May last year to challenge the commission’s decision to allocate part of the land it claimed for its investment to Kenwind Kenya Limited. Cordisons had also sought high court orders to bar the land commission interference in its investment, future encroachment on the land and for the orders to approve the land lease instruments.

In dismissing Cordisons and ruling in Kenwinds favour the judge said the latter followed the right legal procedures to apply for land allocation directly from the commission while the Americans misread the applicable law by seeking similar approval from the Lamu county government. He also said that as a constitutional commission NLC cannot receive directions from anyone adding that the Supreme Court’s advisory opinion put it beyond doubt that the National Land Commission enjoyed exclusive constitutional and statutory authority to allocate and manage public land for counties and national government.

On June 5 Cordisons filed an application to appeal the judgement it considered a miscarriage of justice. In the application it also sought interim orders to bar the land commission, Kenwind and the county government and their agents from interfering with the disputed land pending the determination of the appeal.

The application for interim orders was not heard on Friday as intended after lawyers for all the parties agreed to dispense with it to enable the substantive appeal to proceed on October 9.

Cordisons wants to appeal the May 25 judgement saying it was, manifestly, unjustified, allegedly because the conclusions were not supported by facts and the applicable law.

The appellant has raised 23 objections to the high court judgements which it wants the appellate court to determine including alleging that the judge in the court of first instance misconstrued the proper meaning of the Supreme Court advisory opinion and also misapplied relevant case law.

The appellant wants the Court of appeal to find that the May 25 ruling allowed the NLC powers not envisaged in the 2010 constitution including a leeway to “sell or dispose of public land, on behalf of the County and National Government.”

The appellant argues that notwithstanding its constitutionally guaranteed independence the commission shall subvert the constitutional powers of county and national governments if Justice Olola’s ruling is allowed to stand.

In the May 25 ruling Justice Olola admitted that the American consortium had invested considerable time, research and financial resources to invest in wind power production in Lamu since 2009 but concluded the American consortium misread the applicable law in key aspects.

The judge also observed that Cordisons’ Expression of Interest to develop two sites in Lamu and Lambwe valley was approved by the Energy ministry in 2009 which allowed the firm to proceed on its own and secure land rights to implement the two projects, independently.

He also noted that Cordisons later supplied the ministry and National Environment Management Authority with extensive studies and feasibility reports including a Lamu Transmission Analysis by an American entity known as Electric Power Engineers Inc.

And the judge acknowledged that on July 5 2013 NEMA approved a licence for Cordisons to implement a wind power project to produce 300 megawatts in the Moa-Witu, Kiongwe-Mpeketoni, Pate Faza and Kiangwe-Kiunga in Lamu County.

The judge also said that Swazuri and NLC declined to respond to a request by the Lamu county government to allocate land to Cordisons.

He said it was illegal for county governments to purport allocate land to investors and lawful for Kenwind to apply to the land commission for the allocation.