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ELCOtherELC Suit No. ... (filed 2014) - Meru ELC· [2018] KEELC 3513 (KLR)

Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 9 others [2018] KEELC 3513 (KLR)

Environment and Land Court
25 April 2018
LMLucy N. Mbugua
2,176 words in judgment
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The bottom line

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A Meru court ruled the Lake Turkana Wind Power land dispute is so important it must be decided by at least three judges, not one.

What this practically means

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Executive summary

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The plaintiffs, nomadic pastoralists claiming about 150,000 acres in Laisamis, Marsabit County as ancestral, cultural and grazing community land, sued for cancellation of the titles held by Lake Turkana Wind Power Ltd (L.R No. 6395/1, 28031/1, 6396/1, 28031/2) and nullification of the wind power project, alleging the community land was illegally set apart to a private entity. An injunction application was denied on 9.11.2016 (the judgment variously gives 2014, 2015 and 2016 for related rulings), and the matter was referred to ADR under section 59(c) of the Civil Procedure Act without success; mediation also failed. Before trial, counsel for the 1st defendant orally applied for certification of the case as raising substantial questions of law warranting a three-judge bench under Article 165(4), relying on the project's status as a Kshs.71 billion Vision 2030 project, the power purchase agreement with KPLC involving public funds, international donor funding, the completed 365-turbine project, and voluminous materials with 24 expert witnesses lined up. The plaintiffs opposed, arguing nothing was novel and that a single judge's decision is as good as a bench. Applying the Chunilal V. Mehta test as adopted in the NASA case and Martin Nyaga, Mbugua J found that the competing rights of indigenous communities, private entities, the public and future generations; the use of taxpayers' money under Article 201(d); the Kshs.224.2 billion indemnity notice; the complexity and volume of evidence; and the failure of ADR established a substantial question of law of great public importance. The court certified the matter and referred it to the Chief Justice forthwith for constitution of a bench under Article 165(4).

Key legal issues

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Whether the Lake Turkana Wind Power suit raises a substantial question of law for certification of a three-judge bench under Article 165(4)

Holding

Yes. The competing rights of indigenous communities, private entities, the general public and future generations; the use of public funds in the power purchase agreement; the complexity, volume of materials and 24 expert witnesses; and the failure of mediation make the matter weighty, complex and of great public importance.

Reasoning

Applying the Chunilal V. Mehta test as adopted in the NASA case and Martin Nyaga, the court considered whether the matter affects substantial rights, is of general public importance, is not free from difficulty, is complex, requires substantial time, and attracts public interest. The scale of the project, the Kshs.224.2 billion indemnity notice, reliance on public funds under Article 201(d), and the inter-generational land injustice question all pointed to certification.

p. 3

Legal principles established

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  • A matter certified under Article 165(4) as raising a substantial question of law shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
  • The decision of a single judge is as good as that of a bench of judges; each case for certification must be considered on its own merits.
  • The guidelines for what constitutes a substantial question of law under Article 165(4) are not exhaustive and courts may expand them.

Court orders

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  1. 1.The court certified that the matter raises substantial questions of law of great public importance
  2. 2.The matter was referred to the Chief Justice forthwith for the constitution of a bench in terms of Article 165(4) of the Constitution

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(4)
  • Constitution of Kenya, 2010Article 201(d)
  • Civil Procedure ActSection 59(c)

Cases cited (4)

  • Harrison Kinyanjui vs. Attorney General & Another
    (2012) Eklr
  • Chunilah V. Mehta versus Century Spinning and Manufacturing Co.
    AIR 1962 SC 1314
  • National Super Alliance (NASA) versus The Independent Electoral and Boundaries Commission
    H.C Pet No. 328/2017
  • Martin Nyaga and others versus Speaker of the County Assembly of Embu & 4 others and Amicus
    (2014) eKLR
Jurisdiction invoked
Article 165(4) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 9 others [2018] KEELC 3513 (KLR)", Case Analysis (2018). ELC Suit No. ... (filed 2014) - Meru ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3513/eng@2018-04-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.