July 21, 2019

Why Waititu may not succeed in declining renewal of Del Monte’s lease

Kabete MP Ferdinand Waititu

Kiambu Governor Ferdinand Waititu’s decline to renew land lease for Del Monte Kenya could flop due to several legal hurdles.

According to a Malindi Court ruling last week, it was established that county governments have no legal mandate in extending or cancelling leases for any public land.

Justice James Olola in a landmark ruling categorically stated that allocation and leasing of public land is a duty squarely under the preserve of the National Lands Commission (NLC) only.

He was presiding over a case pitting an American consortium-Cordisons International which wanted to invest in the Sh23 billion Lamu wind power project since 2009.

The judge said that under the new Constitution which recognizes NLC as an independent institution, no county government has the legal power to allocate or lease public land to private investors.

He cited that NLC is vested with this mandate and cannot work under duress from any person or government entity.

Justice Olola drew his conclusion from a Supreme Court advisory  in 2014 which stipulated that NLC’s functions are completely autonomous and cannot be interfered with by the national or county government.

“Article 62(3) on the other hand stipulates that public land vested in county governments shall be administered on their behalf by the second respondent (NLC)…” said the judge in his ruling as quoted by www.thikatowntday.com.

Justice Olola further noted that contextual reading of the advisory by the apex court and the Lands Act puts NLC’s mandate as “allocation of land, disposing of public land, leasing and effecting change of user.”

Waititu has been under pressure from a section of leaders and residents who feel his decision is ill-advised.

The governor said his decline has been informed by the need to expand Thika Town which is fast growing to an industrial hub.

“In this regard, my administration has declined to extend land leased to Del Monte for another term,” he said. “We shall use the said land for the expansion of Thika Town which is ranked among the fast growing towns in the country.”

However, a Kiambu-based politician, Gladys Chania opposed the plan noting it will sabotage the economy of the county.

Chania opined that “We cannot tolerate economic sabotage from our own government. If any worker gets laid off because of the county government’s disruption of industries, we shall be on it badly.”