Energy Principal Secretary (PS) Alex Kamau Wachira and Energy and Petroleum Regulatory Authority (EPRA) Director-General Daniel Kiptoo risk being jailed for contempt of court over the multi-million construction project of a 300 MW wind farm in Bubisa, a community in Marsabit County.
This is after Kenyan diaspora-owned company Gitson Energy Limited today November 30, 2023, filed contempt of court proceedings against Wachira and Kiptoo for continuing to violate orders issued by the court on November 11, 2021.
According to Gitson, High Court Judge Pauline Nyamweya in her judgement rendered in 2021 ordered the Ministry of Energy and the industry regulator EPRA to include the 300 MW wind farm in its list of approved power projects which has not been complied with to date
In court papers before the Milimani High Court Judicial Review Division, the firm now wants the court to allow it to commence contempt of court proceedings against the two state officers whom it wants jailed for six months.
"We seek leave to institute contempt of court proceedings against Alex Wachira the PS Ministry of Energy and Daniel Kiptoo, Director General of EPRA," reads the certificate of urgency application by Gitson.
Justice John Chigiti has ordered firms to serve respondents namely PS Wachira, Kiptoo, CS Treasury, Kenya Power and Lighting Company, the Attorney General and Kenya Electricity Transmission Company Limited with the application within 14 days.
The judge has also granted the respondents 7 days to file their responses in the matter before the mention on December 7, 2023.
While arguing with the court to commence contempt of court proceedings against the bank officials, the company stated that in total violation of the orders of the court issued by Justice Nyamweya.
On November 11, 2021, Justice Nyamweya in her judgment ordered the Ministry of Energy and EPRA to include Gitson Energy’s 300 MW 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,” Justice Nyamweya said in her ruling.
The judge faulted the Energy 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.
She 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 that EPRA repeatedly ignored Gitson Energy's 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.
The company informed the court that it had received promises of financing from the U.S. Export Credit Agency (U.S. Exim Bank) and the Overseas Private Investment Corporation (OPIC), which has since become the U.S. Development Finance Corporation (DFC), thanks to the merger with the Development Credit Authority (DCA) of the U.S. Agency for International Development (USAID).
The Bubisa wind farm project received approval from the Kenyan government at almost the same time as Lake Turkana Wind Power, another project developed by a myriad of foreign investors that resulted in the construction of a 310.25 MW wind farm.
It is said that the facility is capable of generating 2,000 GWh per year, enough to power approximately 1.5 million Kenyan homes. The construction of the Bubisa wind farm is expected to further diversify Kenya’s electricity mix, one of the most attractive on the African continent.