Judges Stephen Kairu, Pauline Nyamweya and Jessie Lesiit noted that restricting access to the facility will be against public interest considering the billions that have been pumped into the project.
The judges also noted that the Kenya Ports Authority (KPA) has demonstrated that the developments on the suit property are enormous and a lot of time and money has gone into the project.
The Court of Appeal has temporarily stopped an order restricting the Kenya Ports Authority from accessing the Lamu Port-South Sudan-Ethiopia Transport (Lapsset) project over compensation row.
Judges Stephen Kairu, Pauline Nyamweya and Jessie Lesiit noted that restricting access to the facility will be against public interest considering the billions that have been pumped into the project.
“We are persuaded that in all the circumstances of this case if what is being sought to be stopped takes place, it will be irreversible,” they said
The judges also noted that the Kenya Ports Authority (KPA) has demonstrated that the developments on the suit property are enormous and a lot of time and money has gone into the project.
The judges also agreed with KPA that it stands to suffer irreparable losses, which it cannot recoup, should the court fails to grant an order stopping execution of the Environment and Land Court (ELC) decision that would have seen the government agency evicted from the facilities.
“We have come to the conclusion that KPA has satisfied the twin principles for grant of stay of proceedings pending hearing and determination of the appeal. Consequently, there shall be a stay of execution of the judgment and consequent orders of the ELC dated and delivered March 23, 2021,” said the judges
The dispute stems from a failure by the National Lands Commission (NLC) to compensate Nightshade Properties Ltd, whose 100 acres of land located in Mokowe, Lamu was compulsory acquired for the Lapsset project.
Last year, the commission had been ordered by the ELC to convene a meeting within 45 days to determine the compensation due to the company.
According to the order by then, Malindi ELC judge James Olola, NLC, Lapsset Corridor Development Authority and KPA were ordered not to remain on the firm’s parcel of land if the directive requiring the determination of the compensation due was not complied with within the stipulated time.
The court faulted the government agencies for failing to explain why the firm had not been compensated by the time the petition was being filed in November 2019.
The land court also observed that the process of compulsory acquisition had not been invalidated by the mere fact that the compensation had not been paid.
The developments on the suit property include extensive construction and development works of the Lamu port, the berths and its ancillary structures including its headquarters and administration blocks.
KPA said these facilities alone has cost taxpayers approximately Sh992.4 million, and $259.4 million.
KPA said the government has injected Sh18 billion and $260 million on the project and therefore it cannot afford to lose the developments thereon because of the compensation dispute.
