Court stops residents' appeal against Sh75bn Turkana wind power firm

Turkana Wind Power substation project in Marsabit in 2016. FILE PHOTO | NMG 

By JOSEPH WANGUI

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Summary

• Judges rule that residents failed to comply with the procedures of filing appeals and the court’s rules.
• The court concurred with the Attorney-General, Marsabit County Government and the Lake Turkana Wind Power Ltd that the notice of appeal was defective for failure to state the nature of the appeal.
• The firm’s director Rizwan Fazal said the residents’ actions amount to gambling with the judicial process.

A court has stopped Marsabit residents from appealing against a decision to allow construction of the Sh75 billion Lake Turkana Wind Power project.

The Court of Appeal judges Thursday ruled that the residents failed to comply with the procedures of filing appeals and the court’s rules.

The Lands court had dismissed their application to stop the building of the plant but they appealed.

But the three-judge bench comprising Patrick Kiage, Fatuma Sichale and Sankale Ole Kantai found that the residents’ notice of appeal dated November 9, 2016 and their memorandum and record of appeal dated June 15, 2017 were against the regulations of the second highest court in the country.

Through lawyer Amina Hashi, the residents unsuccessfully urged the court to invoke Article 159 of the constitution so as to render substantive justice.

READ: Homes face Sh1bn monthly Turkana wind power fine

Community rights

The lawyer said the community’s rights would be trampled, adding there was no public consultation organised between the government and residents of Laisamis Constituency, where the project is situated on a 150,000-acre land.

She said the community is at risk of losing their ancestral land.

Ms Hashi said the wind-power producer acquired the land of the marginalised community without following the due process and consulting the community.

The court heard that the community has no security of tenure and the effects of the project will cover an entire generation.

Ms Hashi further claimed there were no reservations recorded from the residents and that no compensation or alternative settlement was offered.

READ: Consumers to pay Sh5.7bn for wind power line delays

Rules of procedure

As to whether the respondents can seek refuge in the constitutional provision (Article 159), the judges held that "justice should be administered without undue regard to procedural technicalities".

“We are in content to state that the constitutional provision is not meant to whitewash every procedural failing and it is not meant to place procedural rules at nought. In fact, there is great utility in complying with the rules of procedure,” the judges observed.

The court concurred with the Attorney-General, Marsabit County Government and the Lake Turkana Wind Power Ltd that the notice of appeal was defective for failure to state the nature of the appeal.

Through lawyer James Wairoto, the wind power firm argued that the appellants breached rules and procedures of the court such as sticking to timelines as he termed the appeal "fatally defective."

Abuse court process

He said the appellants intended to abuse the court process in their quest to stop the project that has 365 wind turbines and is expected to add 310 megawatts to the national grid.

The firm’s director Rizwan Fazal said the residents’ actions amount to gambling with the judicial process.

In the case, the residents were represented in the suit by Mohamud Itarakwa Kochale, Kochale Jomo Jale, Issa Jitegwe Gambare, David Tamasot Arakhole, William Lengoyiap and Sekotey Seye.