What started like a small thorn in the flesh for Lake Turkana Wind Power (LTWP) project in Loiyangalani, Marsabit county has morphed into a full-blown crisis whose Sh80 billion worth of investment is in limbo after the local community won a second round of a court battle to take back the 150,000-acre piece where the project sits.
The land is now set to revert to locals after a one-year window issued in 2021 to regularise the deal lapsed.
On Thursday the High Court handed the firm its second blow after it rejected an application for an extension of time to regularise the process of acquisition.
A bench of three judges of the Environment and Land Court threw out the plea by LTWP for more time and a review of the decision issued in November 2021, nullifying title deeds to the land.
Justices Peter Muchoki, Yuvinalis Angima and Grace Kemei said the law has given some timelines in which the Cabinet Secretary for land is expected to survey and demarcate and register community land, and the one-year period, which was granted by the court in 2021 was quite generous.
“For the above reasons, in our considered view, the extension of time will not serve any purpose as the parties, by their conduct, appear unwilling to commence the process of conversion of the land,” said the judges.
The LTWP sought a review of the decision arguing that it had spent Euros 623 million or approximately Sh80.9 billion for the project and the firm was set to lose the investment if the land reverted to the community.
The court in 2021 ruled that the power company irregularly acquired the title deeds to the land where the project sits adding the law was not followed.
But even after issuing the decision, the court gave the firm amnesty of one year to regularise the acquisition process, failure to which the land where the 310MW power producer sits, will automatically revert to the community.
The time has since expired.
The government defended the initial process while refuting claims of impropriety and said the law was followed.
The National Land Commission also supported the LTWP saying the land was alienated, subdivided and changed user to the Trust Land Act as required by the Constitution.
The landmark ruling could open the way for the community to seek compensation, as government agencies will be required to hold public participation forums.
The community in Laisamis, Marsabit county moved to court in 2014 and challenged acquisition arguing that the land was central to their survival and livelihood as it is their cultural, ancestral and grazing land held under an intergenerational trust for future generations.
But the firm sought a review saying no action has been taken by the government to regularise the title deeds and the firm risks losing the property as the one-year period was inadequate to complete the process.
Further, Lake Turkana said the judgment and orders were not specific, clear and not sufficiently directed to the relevant entities or communities with the power to act.
The power producer said the firm risks running into billions of shillings and loss of electric power to the national grid, which will be transferred to the public.
LTWP said the wind project is a Vision 2030 project that generates clean, renewable and low-cost wind energy for distribution to the KPLC.
The firm argued that the suspension of the decision for another year will meet the ends of justice and will prevent the abuse of the court process.
The company also wanted the court to reopen the case and allow it to call Dr Wilfred Mwangi, a land administration and management expert.
According to the expert, the process will take between five to seven years to complete.
Dr Mwangi explained in an affidavit that the community must register themselves as a legal entity and drive the process and the government have no role in the initiation of the process.