Legal win for firm in Marsabit wind power project standoff

Part of the turbines at Lake Turkana Wind Power farm at Sarima, near Lake Turkana in Laisamis, Marsabit County on March 15, 2017. [File, Standard]

The High Court has ordered the Ministry of Energy to make all power projects underway in Marsabit County public.

This is the second such directive after the ministry failed to honour a similar order by the ombudsman.

The ministry has been in a protracted push and pull with one of the firms planning to put up a wind power plant in the county over the disclosure of information on all approved power projects in the region.

Gitson Energy, once struck off the list of firms licensed to build power plants but reinstated through a 2021 court order, has been seeking a guarantee of its reinstatement from the ministry by making public the list of approved projects in Marsabit.

The firm plans to build a 300-megawatt (MW) power plant in Marsabit.

Gitson, which describes itself as a Kenyan-diaspora energy firm, in 2022, through its Chief Executive James Gitau, requested the ministry for the information on the projects in Marsabit as of  December 31, 2021 through the Access to Information Act and Article 35 of the Constitution.

The ministry, however, did not furnish the firm with the information. Gitson Energy in March 2023 made a complaint to the Commission on Administrative Justice (CAJ) or the ombudsman, which on April 5, 2023 wrote to the Ministry, reminding it of the pending access to information request and urging it to respond.

The Ministry would, however, not respond, prompting CAJ to issue an order on October 12, 2023, requiring the ministry to facilitate access to the information  “within seven days from the date hereof.”

Further non-compliance saw Gitson Energy move to the High Court in December 2023, where it sought a court order to compel the ministry to adhere to the Ombudsman’s directive.

On April 10 this year, High Court Judge Bahati Mwamuye ruled that the Ministry should furnish Gitson Energy with the list of firms undertaking power projects in Marsabit within 30 days.

“The Applicant (Gitson Energy) is hereby granted leave to enforce the CAJ order dated 12th October 2023 as a decree of this Court,” said the ruling.

“The order of CAJ dated 12th October 2023 requiring the first Respondent (Ministry of Energy) to provide complete and accurate information concerning all approved power projects in Marsabit County as of December 31, 2021 is hereby adopted as an order of this Court.”

“The first Respondent shall, within thirty (30) days from the date hereof, comply fully with this decree by supplying the Applicant with a certified and accurate list of all approved power projects in Marsabit County as of 31st December 2021. The said information must clearly indicate project names, capacity, approval dates, current status and project details as requested.”

Parts of Marsabit have among the best wind regimes in the region. It is where the Lake Turkana Wind Plant (LTWP) is located, with several other companies, including state-owned KenGen, planning to build wind farms in the county.

Gitson is among the several firms with such plans in the County.

The firm has, however, faced setbacks, having been struck off the ministry’s list of approved power plants, and it was not until November when the High Court directed the Energy and Petroleum Ministry and the Energy and Petroleum Regulatory Authority (Epra) to include its project in the country’s list of approved power projects.

The firm had applied for and received approval to proceed with the project in Marsabit from the ministry in 2010.

Land gazettement issues, however, delayed the project, forcing the company to seek the court’s intervention, which took five years.

But when the land matter was resolved, the project faced further delays with the Energy Ministry presenting what the company claimed were more hurdles hindering the project from taking off.