Appeal judges fail to read Sh23 billion appeal by US wind consortium

The prospect of an American consortium Cordisons International of investing Sh 23 billion in wind power generation in Lamu County has been delayed after a scheduled ruling by the Court of Appeal in Mombasa was postponed at the last minute without notice on Friday.

Cordisons International is appealing last year’s High Court judgment that deprived it off its prospective right to invest in Lamu. That judgment was significant for asserting that county and national governments have no constitutional power to lease public land.

The Appeals Court registry failed to explain to parties why the ruling was not delivered but an official who asked not be named claimed the judgement was ready but had not been signed by the three judges.

The official further said the ruling might be on March 7 in Malindi.

“Judges were not around and the ruling may not have been ready because each and every judge must append his signature on the document before reading it,” the official said and added that the appeal court was handling 20 cases which were to be delivered on the same date but were all postponed to  March 7.

Cordisons International moved to Court of Appeal in May last year after High Court Judge James Olola rendered judgment, it considered contradictory and unconstitutional.

According to the appellants, the High Court reached findings not supported by facts, historical context, legislation and the Kenya constitution when it held that the National Land Commission NLC acted legally in approving land use rights for Cordisons International’s rivals Kenwind.

In the ruling, the judge admitted that the American consortium had invested considerable time, research and financial resources to invest in wind power production in Lamu since 2009 but concluded the Americans misread the applicable law in key aspects.

The judge also observed that Cordisons’ Expression of Interest to develop two regions in Lamu and Lambwe valley was approved by the Ministry of Energy in 2009, which awarded the company a non- renewable right of first refusal and allowed the firm to proceed and secure land rights to implement the two projects, independently.

He also noted that Cordisons later supplied the Ministry of Energy and National Environment Management Authority with extensive studies and feasibility reports including a Lamu Transmission Analysis by an American entity known as Electric Power Engineers Inc.

In addition, the judge acknowledged that on July 5 2013 NEMA approved a licence for Cordisons to implement a wind power project to produce 300 megawatts in the Moa-Witu, Kiongwe-Mpeketoni, Pate Faza and Kiangwe-Kiunga in Lamu County.

During the High Court proceedings, Cordisons International had accused NLC and its chair Muhammad Swazuri of favouring its rival. Cordisons International’s record in the high court said that in 2015 NLC approved an application for land allotment to its rival and ignored its own earlier application. The 2015 approval of Kenwind overlapped Cordisons’ own land in the same Lamu County, according to the suit papers by the American consortium and Lamu county government in the High Court.

And Cordisons argued during high court proceedings that NLC refused to approve and release its land lease instruments despite fulfilling all legal requirements prescribed by the Land Act, Energy ministry and constitution since 2009.

Further Cordisons had claimed that its Part Development Plan PDP LMU/1281/01/16 of July 22 2016 prepared by the Lamu County government physical planners was disregarded by NLC which proceeded to instruct the Director of Physical Planning in the Lands ministry to draw up fresh PDPs, which, according to the Lamu county government and Cordisons, were designed to favour Kenwind.

But Cordisons’ judicial review application for remedy which began in February 2017 failed on May 25 last year when Justice Olola ruled in Kenwind’s favour saying the latter followed the right legal procedures to apply for land allocation from the commission while the Americans misread the applicable law by seeking similar approval from the Lamu County government.

The judge based his conclusion on a 2014 Supreme Court advisory that delineated the powers of the commission on land matters vis a vis county and national governments and his understanding of the commission’s statutory authority under the National Land Commission Act, the Land Act and the Land Registration Act.

The judge argued that a contextual reading of the Supreme Court advisory together with the land Acts stated above means that the power to manage and administer public land includes “allocation of land, disposing of public land; leasing and effecting change of user.”

And the judge further argued that the Supreme Court advisory established that the clause prescribing independence of some constitutional commissions was, deliberately, inserted in the 2010 constitution to insulate these commissions from “an all-powerful presidency” that had, since 1963 emasculated other arms of Government. He said this independence enables commissions to enforce their mandates unhindered and effectively without  fear of extraneous interference.

He said the advisory also held that although independent commissions are required, by law to coordinate and harmonise their activities with other arms of government to “maximize results and protect public interest” and ensure “a seamless and an efficient and effective rendering of services,” final decision-making must emanate from them.

Aggrieved Cordisons appealed to the Court of Appeal citing points of law and fact they felt the High court had ignored or misconstrued in reaching its judgement.

Fundamentally the appellant argued that the high court judgement breached Article 62(2)(a) of the constitution which Cordisons argued vests un-alienated public land in county governments.

The appellant also argued that the trial court ignored respondents’ unreasonable conduct, abuse of power, breach of procedure and awarded them what they did not deserve.

When Cordisons made its first application for the land in early 2010, the land commission did not exist. However, the judge ruled that the land commission now ha unfettered powers and does not need to consult anybody when alienating Public land anywhere in the country.

On the last day of the appeal hearing in October last year, Cordisons lead lawyer Mr. Francis Wasuna complained to the court that Lamu County, a respondent, could not switch both their lawyers and their written submission with fresh ones, in the middle of live court proceedings, without notifying the Applicant, Cordisons.

A new set of lawyers had attempted to withdraw Lamu County’s initial submission, which appeared supported all of Cordisons’ principal arguments. Cordisons’ lawyers accused Kenwind of repeatedly defying court orders on submission deadlines. 

The Appeal Court judges agreed with Mr. Wasuna, ordered the case to be heard on the spot and set a ruling date for  February 21 2019.

The appeals case has six respondents; namely, the immediate former NLC Chairman Dr. Mohammed Swazuri, the National Land Commission and the Director of Physical Planning. Others are Kenwind, Lamu County Government and the Attorney General.

Cordisons further argued that if the High Court ruling is not overturned, it shall usurp the Constitution of Kenya and plant the National Land Commission, an administrator of public lands, on top of the national and county governments, under whom the Constitution vests ownership of public lands.