The Tana and Athi River Development Authority (Tarda) got a reprieve after the Court of Appeal set aside a judgment that had revoked a grant of lease issued to it over a parcel of land within Tana Delta, Tana River County.
The Court of Appeal declined to uphold a decision of the Environment and Land Court (ELC) in Malindi, which had revoked the grant and also issued a permanent injunction restraining Tarda from dealing with the land following a petition by the Tana River County.
According to court documents, Tarda is engaged in projects such as irrigation with the Tana Delta Irrigation Project formulated to open 12,000 hectares of flood plains to produce 65,000 tonnes of milled rice a year.
Appellate judges Gatembu Kairu, Pauline Nyamweya, and George Odunga ruled that the ELC judge erred in nullifying the allocation of the whole land when there was no evidence that it was trust land.
They further ruled that ELC ought to have made a finding as to what portion was government land and the fraction that was trust land.
"Even if there was evidence that the setting apart (of the land) was not procedural, we are not satisfied that that was the case; it is our view that the trial court in arriving at its decision ought to have taken into account public interest,” said the three judges.
They further said that a consideration of public interest does not justify a violation of a person’s constitutionally guaranteed rights.
“A court of law cannot decline to make a finding that a right has been violated or is threatened by violation on the basis that to do so is not in the public interest,” ruled the Court of Appeal.
It further ruled that the ELC erred in finding that the residents of the area were never compensated.
