Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesianntam & 4 others (Interested Parties) [2021] KEELC 1441 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the 150,000-acre land allocation to Lake Turkana Wind Power was unlawful, giving authorities one year to fix it or the land reverts to the community.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the plaintiffs as representatives of pastoralist communities
Plaintiffs had locus under Article 258 and section 12 of the Trust Land Act; residence in distant parts of the county did not defeat ancestral and user rights
The court applied Article 258 which liberalises standing and section 12 TLA which gives persons claiming rights or interests in set-apart land access to court. Evidence from multiple witnesses confirmed the plaintiffs' communities held customary, occupational and user rights over the land. It mattered not where within the county a Rendille resided; the rights vested in the community severally and individually.
Lawfulness of the setting apart of 150,000 acres of trust land
The setting apart was unlawful - no Divisional Board existed, no notice, hearing or recorded representations occurred, and the Town Planning Committee could not lawfully substitute for the Board
Section 117 of the repealed Constitution and section 13 TLA prescribe a mandatory process: notification of the Divisional Board, notice to residents, hearing and recording of representations, board recommendation and council resolution. The defendants conceded these steps were not followed due to absence of the Board, and no explanation was given for the Minister's failure to appoint one. Government policy could not override statute, and alleged custom was unproved.
Violation of environmental and cultural rights
Not proved - EIA licence and NEMA approval were unchallenged and no evidence of real or threatened cultural violation
The plaintiffs did not challenge the EIA licence or NEMA approvals nor demonstrate the extent of any environmental violation. On culture, evidence showed the Galgulame ceremony was historically held at various sites for security reasons and only apprehension of future hindrance was voiced. The National Museums confirmed no turbines were sited on archaeologically significant areas.
Entitlement to compensation
Compensation would have been due had due process been followed, but the court declined to award it as it was not prayed for, not canvassed, and premature
Under sections 8 and 9 TLA compensation claims were to be assessed by the District Commissioner in consultation with the Divisional Board. The plaintiffs were denied this opportunity by the flawed process. However, compensation is in the nature of special damages to be pleaded with particularity; no valuation reports were tendered and assessment is best left to the organs entrusted by law.
Cancellation of the 1st Defendant's titles
Titles declared irregular and unlawful and liable to cancellation; one year given to regularise the setting apart, failing which titles stand cancelled and land reverts to the community
Article 40(6) withdraws protection from unlawfully acquired property. Under sections 26 and 80 LRA a title acquired illegally or unprocedurally may be cancelled; a flawed setting apart process births a nullity (Macfoy). Additionally, the Grants were issued under the Registration of Titles Act instead of the Registered Land Act which applied to land set apart under section 117, rendering them invalid.
Nullification of the wind power project
Refused - a completed, operational project is not capable of being nullified and demolition/removal was not sought
The court examined the meaning of 'nullify' and found the only effective remedy against a complete project would be demolition or removal, which was not pleaded. The order regularising the setting apart within one year also rendered nullification inappropriate. National exigencies and project completion could not cure illegality, but they shaped the remedy.
Legal principles established
#- A county council cannot substitute another body (such as a Town Planning Committee) for the Divisional Board required by section 13 of the Trust Land Act; government policy or custom cannot override the statutory procedure
- Public interest in a project cannot justify or cure blatant violation of the law in the acquisition of community/trust land
- Legitimate expectation cannot arise or be relied upon where effectuating it would contravene express statutory provisions
- A title procured through an illegal or unprocedural setting apart process is liable to cancellation notwithstanding first registration
Court orders
#- 1.A declaration that the setting apart of the suit properties was irregular, unlawful and unconstitutional
- 2.A declaration that the titles issued to the 1st Defendant are irregular and unlawful and should be cancelled, with the 2nd, 3rd, 4th and 5th defendants granted one year to strictly comply with the existing law on setting apart, failing which the titles stand cancelled and the suit land reverts to the community
- 3.Denial of the prayer for nullification of the Wind Power Project
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction under Article 162(2) of the Constitution (Environment and Land Court); constitutional claims under Articles 40, 42, 63, 69, 71, 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesianntam & 4 others (Interested Parties) [2021] KEELC 1441 (KLR)", Case Analysis (2021). Meru ELC Case No. 163 of 2014 (Formerly Nairobi ELC No. 1330 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1441/eng@2021-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.