Court orders urgent hearing of case seeking Dangote refinery deal disclosure

By  Joseph Wangui

Correspondent

Nation Media Group

The High Court has certified urgent a case seeking disclosure of agreements and public commitments behind Kenya’s planned stake in Dangote’s Sh2.2 trillion Lamu refinery.

Justice David Mburu ordered the State and other parties to respond within seven days, as petitioner Francis Onyango Awino questions the proposed use of public money, land, tax measures and guarantees.

The petition comes days after President William Ruto and Nigerian industrialist Aliko Dangote broke ground on the 700,000-barrel-a-day refinery at Mokowe, Lamu County, on September 30. The project is known as Dangote East Africa Petroleum Refinery and Petrochemicals SEZ.

President Ruto said Kenya would use the National Infrastructure Fund and public assets, including land, to acquire a stake. Mr Awino says key transaction documents, approvals, and other documents underpinning Kenya’s planned participation in the project have not been disclosed to the public.

Mr Awino, a rights activist, says he is not opposed to industrialization or lawful foreign investment. His concern, he says, is transparency and whether public resources can be committed without adequate disclosure and public participation.

“Article 201 of the Constitution requires openness, accountability and public participation in financial matters. This obligation is directly engaged where the State may deploy NIF funds, public assets, equity, land, tax incentives, exemptions, guarantees or other fiscal support,” says the petitioner.

He has sued the Attorney-General, Treasury, Energy and Petroleum officials, Lands officials, NEMA, the National Land Commission, Lamu County Government, LAPSSET Corridor Development Authority, Kenya Ports Authority, Kenya Maritime Authority and the National Infrastructure Fund. Dangote East Africa Petroleum Refinery and Petrochemicals SEZ and Capital Markets Authority (CMA) are listed as interested parties.

Justice Mburu certified the case urgent on Tuesday and directed physical service of the petition and motion within two days. The respondents and interested parties must file responses within seven days of service.

“The matter is certified urgent and will therefore be heard on a priority basis,” the judge ordered. He fixed the case for mention on November 12 to confirm compliance and take further directions.

Mr Awino wants interim court orders preventing State agencies from making irreversible or non-routine commitments involving National Infrastructure Fund (NIF) funds, public land, equity, guarantees, indemnities, tax concessions and other support before the petition is determined.

His affidavit says he has not been supplied with the legal instrument authorizing the NIF’s participation, the source and amount of funding, or documents showing the proposed State shareholding.

The petition seeks disclosure of public land valuation and use, valuation and financial models, feasibility and due-diligence reports, records of approvals and shareholder and governance arrangements.

It also seeks details of guarantees, indemnities and contingent liabilities, tax concessions and other incentives, environmental approvals and assessments, project agreements and memoranda, procurement records, and Capital Market Authority (CMA) records concerning proposed securities or IPO arrangements.

Other documents sought include environmental assessments, land records, procurement records, tax incentives, licences, permits and information identifying the project company’s directors and beneficial owners.

Mr Awino says these records are necessary to establish “the legality, value, affordability, public benefit, fiscal sustainability, procurement, accountability safeguards and financial risk” of the reported State participation.

Dangote refinery is expected to be completed in 2030. President Ruto earlier said 9,000 acres had been identified for the project and another 3,000 acres was being sought for an expanded development.

The President also said the land being used belongs to the government and that the State would compensate families within areas earmarked for the project.

The land issue is already before the Environment and Land Court in Malindi. On September 25, Justice Jane Onyango ordered parties to maintain the status quo on the land registered as LR No.13061 in Hindi/Manda Magogoni until October 14.

That case was filed by 133 Lamu residents who say their families have occupied and used parts of the land for generations. They seek recognition of their interests, compensation and protection of homes and graves.

The Malindi court did not stop the September 30 groundbreaking. It ordered parties to maintain the existing position while the residents’ application is heard.

The new Nairobi petition is different. It does not ask the court to determine ownership of the disputed land. It challenges disclosure and approval of the State’s proposed financial and related commitments on the refinery, announced by the government.

The $16 billion (Sh2.2 trillion) refinery is intended to reduce East Africa’s reliance on imported refined petroleum products and will include a 1,000-megawatt power plant.

“We are going to use the National Infrastructure Fund to invest in this refinery,” President Ruto said at the groundbreaking.

Activist Awino says the public cannot properly assess the proposed investment while key documents remain unavailable.

The respondents and Dangote have not yet filed their responses. The case remains at the initial stage, with responses due before further directions on November 12.

Follow our WhatsApp channel for breaking news updates and more stories like this.