The High Court in Meru is set to make a ruling early next month that will determine the fate of an ambitious Sh75 billion wind power project in Marsabit County.
In the case before Justice Peter Njoroge, Marsabit residents accuse Lake Turkana Wind Power Limited of acquiring 150,000 acres of their ancestral land for the project without following due process.
The plant is expected to generate 300 megawatts.
The project, which can be traced back to 2006, is located in Loiyangalani and was to be undertaken in three phases with the first (50 megawatts) expected to be launched by President Uhuru Kenyatta in January 2017.
While Marsabit residents say they were not involved in the land acquisition, the power company says everything was done above board. Attempts to settle the matter out of court have failed.
The residents want the court to temporarily stop the wind power company from selling, transferring or engaging in construction of any part of the 150,000 acres land until the matter is determined.
In 2015 the court had already issued orders to the company to restrain their activities to an area of 87,000 acres.
The residents are represented by Mohamud Itarakwa Kochale, Kochale Jomo Jale and Issa Jitegwe Gambare. The others are David Tamasot Arakhole, William Lengoyiap and Sekotey Seye.
Apart from the wind power company, the residents have also enjoined Marsabit County Government, the Attorney-General, the Chief Land Registrar, and the National Land Commission in the suit.
The residents claim that there was no public consultation organised between residents of Laisamis Constituency and Karari ward, where the project is situated, and the company.
They further claim there were no reservations recorded from the residents and that no compensation or alternative settlement was offered.
They also argue that no board was constituted as per the Land Act to award the land.
“The company carried out a self-serving environmental and social impact assessment of the project without involving the plaintiffs (residents) and without evaluating the possible negative impact of the project on the economic, social, cultural and physical wellbeing of the local people,” read the court documents before Justice Njoroge.
In an affidavit sworn by Mr Seye, they argue that by acquisition of the land, the camel corridor used to access Lake Turkana was disrupted.
He further says that cultural activities by the Rendille people that used to be undertaken at the suit property have now been rendered impossible.
He says that the Marsabit County Council did not notify the chairman of the Divisional Land Board of the proposals by the company to allow involvement of all stakeholders.
He adds that the Divisional Land Board “never heard and recorded representations of the people concerned, nor did it submit its written recommendations on the proposal to set apart the land together with the record of representations made at that meeting” as provided in Trust Land Act.
In his replying affidavit, Turkana Wind Power Ltd chief operations officer Nicholas Taypor said due process was followed when the suit property was acquired. He said the Rendille were not occupying the land when they took it over.
He further says none of the applicants in the case lives in the area under dispute. The company says that in November 2006 it made an application to the defunct Marsabit County Council seeking permission to lease the land. It sought 100,000 acres and added 50,000 more as it needed a sufficient buffer zone to prevent obstruction in order to achieve optimum wind speeds for the turbines.
“The project has involved many organs of the national and county governments as it is the largest single private investment in Kenya. It is, therefore, perfectly lawful,” says the company, adding that the county government and land commission have no objection. The ruling will be delivered on November 9.
The company acquired two titles for the land one measuring 40,000 acres and the other 110,000 acres and the land is now categorised as private.