- Judge says tribunal was free to issue licence as no appeal was made after ERC dismissed petition.
Environmentalists and a group of Lamu residents have suffered a blow after a judge in Malindi declined to hear a case seeking to stop the establishment of a coal plant.
Mr Okiya Omtatah, supported by the Kenya National Commission on Human Rights among other bodies, wanted the court to issue a temporary order prohibiting Kenya Power, Amu Power Company and Energy Regulatory Commission (ERC) from approving the Sh200 billion plant.
Mr Omtatah also wanted the court to suspend the Environmental Impact Assessment Licence for the power plant until the Energy ministry produces a copy of the power purchase agreement, signed between the government and Amu.
He sought the details of any loans or guarantees precipitating the agreement and for the court to determine under what circumstances the licence was issued especially after Mr Joseph Ng’ang’a, the former director-general of ERC, had declined to issue it.
The court was told that the deal between the government and Amu was for the company to produce 1,050MW of coal fired power plant in Manda, Lamu County.
Mr Omtatah told the court the 25-year agreement commits Kenyan taxpayers to pay about Sh36 billion per year as capacity charges for the plant. He argued that the deal was a scandal of monumental proportions, which does not make sense because there is already an overproduction of electricity in Kenya.
He said geothermal, hydro, solar, wind and biomass energy have hardly been tapped, adding that there is no justification for setting up the highly polluting coal fired power plant in Lamu or anywhere in Kenya.
The activist said the Environmental Impact Assessment report upon which the licence was granted was faulty because it was prepared by an expert who was an agent of Amu therefore bringing about a conflict of interest. He said the report was prepared by Kurrent Technologies Ltd, appointed by Amu.
Justice James Olola said Save Lamu, a non-governmental organisation, lodged an objection against the issuance of the power generation licence by the ERC, but the case was dismissed by the commission in a decision published in a gazette notice dated February 24, 2017.
Justice Olola said no appeal was filed against the decision, within the 30 days as required by section 26 of the Energy Act and the National Environment Tribunal was, therefore, free to proceed, as it did, to issue the licence. The judge was further told that another matter was pending before the tribunal.
The Attorney-General thereafter asked the court to dismiss the case because it lacked jurisdiction to hear the matter.
“Accordingly, I am satisfied that in a case such as this one, where the law provides for a procedure to be followed, the parties are bound to follow the procedure before they can invoke the jurisdiction in this court,” said the judge.
He also said the government largely complied with the statutory framework established for a project of such nature. This, he noted, was done through an advertisement in the newspaper notifying the public of the project.
“That being the case, the complaints raised by the petitioner herein in my view ought to have been raised as an objection after the public was notified of the application for the licence through the advertisement in the newspapers,” said Justice Olola.