Court hands a lifeline to second 300MW Marsabit wind project
By Kamau Macharia | November 22nd 2021
The High Court has ordered the Ministry of Energy and the sector regulator, Energy and Petroleum Regulatory Authority (Epra), to include a 300 megawatt (MW) wind power plant to its list of approved electricity projects.
The move opens Kenya’s electricity mix to cheaper green energy sources.
Gitson Energy Ltd, a Kenyan-Diaspora owned energy company had applied and received approval from the Ministry of Energy in 2010 to start a wind power project in Marsabit County.
Land gazettement issues however delayed the project, forcing the company to seek the court’s intervention, which took five years.
After the land matter was resolved, the project faced further delays, with the Energy Ministry presenting what the company claimed were new hurdles to stall the project.
High Court Judge Pauline Nyamweya in a November 11, 2021 judgment ordered the Ministry of Energy and Epra to include Gitson Energy’s 300MW wind energy project in the Commission’s list of approved projects, in line with the approval of February 16, 2010, granted for the project in Bubisa, Marsabit.
“An order of mandamus (order from a court to an inferior government official) be and is hereby issued to compel the second (Ministry of Energy) and (Epra) fourth respondents to forthwith include the ex parte applicant’s 300MW wind energy project in the fourth respondent’s list of approved projects, and to, in consultation with the ex parte applicant, issue the appropriate permit and licence to the ex parte applicant,” said Justice Nyamweya in her ruling.
The court faulted the ministry and Epra for attempting to apply the public-private partnership law enacted in 2013 retrospectively.
The court also held that the Energy ministry, through a letter by the Principal Secretary in 2017 introduced additional hurdles to the approved project that were not in conformity with the repealed Energy Act 2006, and the current Energy Act of 2019.
The court noted that the State's approval letter in 2010 gave legitimate expectations to Gitson Energy to invest in the project.
In the 75-page judgment, the court observed the Epra repeatedly ignored Gitson Energy letters to be included in the Least Cost Power Development Plan (LCPDP) that runs from 2010-2037, despite the project being approved under the Green Energy Programme.
The judge said Epra had also ignored letters to include the Gitson Energy project in the LCPDP from Ministry of Energy officials including the Principal Secretary and Director of Renewable Energy.
Gitson Energy Chief Executive James Gitau said the ruling paves way for the company to harness renewable energy. Marsabit County, he noted, is endowed with the strong winds as a resource but remains untapped. “Bubisa site has the best wind regime in Kenya and among the best in the world,” he said.
The firm is to regularise the land issue as held by the Court Appeal in 2017. This is also in line with the recent ruling in the Lake Turkana Wind Power land case where the court directed the firm to regularise the land within a year.
The reprieve for the wind firm comes at a time when the State is instituting major reforms in the energy sector aimed at reducing the cost of electricity. They include renegotiating contracts with Independent Power Producers (IPPs).
During the Kenya Power investors briefing last week, Energy Cabinet Secretary Monica Juma invited IPPs to renegotiate the tariffs.
The negotiations seek to end disparities in tariffs pricing among IPPs. While KenGen sells a unit of electricity to Kenya Power at Sh5.31, other IPPs sell power to the power retailer at over Sh15 on average.
The Auditor-General recently said one of the power producers was paid Sh195 per unit.
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