Malindi judge orders Swazuri to reply to Lamu wind power suit

The High Court in Malindi has ordered the chairman of the National Land Commission NLC Muhammad Swazuri and the commission to respond to a suit filed by a consortium of American investors challenging its decision declining to sign land lease documents for a wind power project in Lamu.

Cordisons International (K)Limited has sued the commission, Director of Physical Planning in the Lands ministry, Attorney General and Lamu County government challenging the NLC decision.

The investor says it has satisfied and received all the statutory approvals from state agencies including the Lamu county government and accuses the commission of frustrating its investment in favour of a Belgian investor Kenwind Holdings Limited.

On January 30 this year the High Court in Milimani in Nairobi allowed Cordisons International to challenge the commission’s decision and transferred the matter to the Malindi Environment and Land Court.

The AG filed a preliminary objection challenging the jurisdiction of the Milimani Court but Justice R.E Aburili overruled the AG.

The matter is now before Justice James Olola at the Environment and Land Court in Malindi. On February 15 Kenwind Holdings Ltd applied to be enjoined in the matter as an interested party. All respondents except the Lamu county government failed to file their responses to Cordisons International.

Justice Olola ordered the respondents to file replies within 14 days and adjourned the matter to March 16. But when the matter came up for mention on Monday the respondents had not complied.

Instead Kenwind Holdings Ltd filed a preliminary objection challenging the court’s jurisdiction. The judge allowed additional time for all respondents to reply and set a date for hearing of the jurisdiction challenge.

Cordisons International Ltd has asked court to compel the National Land Commission (NLC) to issue them land lease documents for 11,000 acres of land as directed by the County government of Lamu for establishing a Sh23 billion wind energy project.

Cordisons International Ltd had argued that NLC and the director of physical planning Augustine Masinde denied them the right to invest in the land at an expense of a rival Belgium company, Kenwind, despite following the right procedure to acquire the land.

Kenwind Holdings limited through their lawyers Kiarie Kariuki and Mr William Mogaka argued that the court has no jurisdiction to listen to the case transferred from Nairobi to Malindi.
Mr Mogaka argued that the court has no jurisdiction to handle proceedings on matters touching on land planning and ownership and therefore ought to be dismissed with costs of the suit.
Some 39 residents of Baharini in Mpeketoni, Lamu West Sub County applied to be enjoined as interested parties seeking to challenge Cordisons International Kenya Limited.
In addition, Cordisons International Ltd which started its investment project in 2009 and enjoys support of the County government of Lamu, has also asked the court to quash development plans published in gazette notices on the disputed land.
“We pray for orders to quash part development plan dated July 26, 2016 and published in Gazette notice number 6454 on August 12, 2016 by AK Masinde for director of physical planning,” states part of the Cordisons International application.
The case will be heard on April 11.

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