The Dangote Lamu Refinery, the Malindi Court Order and the Legal Questions Raised

Public statements by the President and by Dangote Group describe a refinery to be completed in about three years, with reports variously giving 40 months or the year 2030. The President has spoken of about 60,000 direct and indirect jobs and is reported to have said the project would raise annual gross domestic product by 12 per cent. A 1,000 megawatt power plant is reportedly part of the complex.

Regional governments have reportedly been offered a combined 30 per cent stake. Kenya's share has been reported at up to 10 per cent, and the National Treasury has reportedly indicated that Kenya could take more if others do not take up their allocation. Dangote is reported to have said governments may spread payment over four years. The President has said the State will invest through the National Infrastructure Fund and by deploying state assets, including land, and that ordinary Kenyans will be able to buy shares through the Nairobi Securities Exchange. He has also said that land matters will be "handled lawfully and fairly" and that environmental and social safeguards will be enforced.

These are statements of intention. The legal question in each case is what instrument gives effect to them, and whether the public can read it.

According to press reports of the court record, Salim Tima Swale and 132 other residents of Chandavai sued the Office of the President, the Cabinet Secretary for Defence, the State Department for Lands and Physical Planning, the Attorney General, the National Land Commission, the LAPSSET Corridor Development Authority, the County Government of Lamu, Dangote Industries and two contractors. The land is identified as LR No. 13061 in the Hindi/Manda Magogoni area.

Justice Jane Onyango reportedly declined to certify the application as urgent and did not grant the order sought to stop the groundbreaking. The court directed that the respondents be served and file responses within 14 days, fixed the application for hearing inter partes on 14 October 2026, and ordered that "the status quo prevailing" on the land be maintained in the meantime, with a warning that disobedience would attract penal consequences. Some early international reports gave a different hearing date.

The parties read the order differently. Counsel for the residents is reported as saying that construction should not begin before the court reconvenes. Dangote Group has said that the court did not halt the ceremony, while accepting that some site activities may be affected.

A status quo order is not a finding on the merits. It preserves the position as it stood on the date of the order. Its practical effect depends on what that position was, and that is frequently where the next dispute arises.

The residents reportedly say their families have occupied, farmed and grazed the land for generations and have built homes, mosques and shrines on it, and that relatives are buried there. They do not hold title deeds. They allege that heavy machinery entered the land on 7 August 2024 and destroyed crops and trees, that police and chiefs cleared one parcel on 10 September 2026 ahead of the ceremony, and that they learnt around 20 September 2026 that a compulsory acquisition process had begun which was directed at absentee title holders rather than the people living on the land. They rely on the Land Act and on Articles 35, 40 and 47 of the Constitution. They are reported as saying they do not oppose development but want their interests recognised first. A second suit by other residents has also been reported.

These are allegations. The respondents have not yet answered them in court.

Article 40(3) of the Constitution permits the State to deprive a person of property only for a public purpose or in the public interest, and on prompt payment in full of just compensation. Article 40(4) allows compensation to be paid to occupants in good faith who may not hold title.

Part VIII of the Land Act, 2012 sets out the sequence. The National Land Commission publishes notice of the intended acquisition, inspects the land, holds an inquiry at which persons interested are heard, makes a written award, and pays. Possession follows payment, save in defined cases of urgency.

If, as alleged, the acquisition process began in September 2026, the court will need to be told on what legal basis land was entered and cleared before then. That is a question of fact and it is the centre of the case.

The respondents may argue that the land is public land, or is registered to others, and that the claimants hold no compensable interest. The residents may answer with Article 40(4), with Article 63 of the Constitution and the Community Land Act, 2016 on unregistered community land, and, if the land is privately titled, with the law of adverse possession, which is not available against public land. Which of these applies depends on what the register shows for LR No. 13061.

Compulsory acquisition exists for public purposes. Here the land is reportedly to host a refinery that will be majority owned by a private group and later listed. That does not make the acquisition unlawful, since the public interest can be served by privately operated infrastructure. It does make the terms important. Is the land to be leased, allocated or contributed as the State's equity? At what valuation, and who conducted it? Under which law: the Land Act, the Special Economic Zones Act, 2015, or the Public Finance Management Act, 2012? None of this has been published.

Section 58 of the Environmental Management and Coordination Act, 1999 requires a project of this kind to obtain an environmental impact assessment licence from the National Environment Management Authority before it begins, after a study report has been published and the public invited to comment. Articles 42, 69 and 70 of the Constitution protect the right to a clean and healthy environment.

Greenpeace Africa has alleged that political and financial commitments were made before an environmental and social impact assessment or wide public consultation. Soil testing and preparatory work reportedly began in July 2026. As at the date of writing we have not been able to confirm from public sources whether a licence has been issued, or for which works.

Lamu has been here before. In Save Lamu & 5 others v National Environmental Management Authority & another [2019] eKLR, the National Environment Tribunal cancelled the licence for the proposed Lamu coal plant, and the Environment and Land Court at Malindi upheld that decision in October 2025. In Mohamed Ali Baadi & others v Attorney General & 11 others [2018] eKLR, concerning Lamu Port, the High Court found failures of public participation and ordered compensation for about 4,600 fishermen. Lamu Old Town is also a UNESCO World Heritage Site.

Senate Deputy Minority Leader Edwin Sifuna told the Senate on the day of the groundbreaking that senators had not seen the agreement. Trans Nzoia Governor George Natembeya has questioned whether Kenyans have enough information to judge the benefits.

Article 35 of the Constitution and the Access to Information Act, 2016 give citizens a right to information held by the State. Article 201 requires openness and accountability in public finance. If public money and public land are to be committed, Parliament and the public are entitled to ask what Kenya pays, what it receives, and what tax incentives, guarantees, fuel supply arrangements or protections against imports have been agreed. Dangote Group's own description of the project refers to a special economic zone, a status that ordinarily carries tax concessions.

A public offer of shares in Kenya requires approval by the Capital Markets Authority and a prospectus. Reports indicate that one route under discussion is depositary receipts on the Nairobi Securities Exchange over shares in Dangote's existing Nigerian refinery, subject to regulatory approval. That is a different asset from the Lamu refinery. Until an approved offer document exists, a statement that Kenyans will own shares is a statement of policy, not an investment.

The government presents the refinery as energy security for a region hit by fuel price increases, as the largest foreign direct investment in Kenya's history, and as the anchor the LAPSSET corridor has lacked. The President has told Lamu residents they are entitled to ask about jobs, contracts, land and fishing. He has also cautioned against imposing excessive conditions on investors and, a day after the ceremony, reportedly criticised those challenging the project in court.

Mr Dangote has described court challenges as "normal for us in Africa" and said the project will proceed. He has said the government has dealt with compensation for the land, that some opposition comes from traders whose business the refinery would disrupt, and that local residents will be trained for jobs. Several local leaders and residents are reported to support the project while asking for proper community involvement.

Beyond the litigants, critics point to the ecology of the Lamu archipelago, the absence of any announced equity for the host community, and commercial uncertainty. Kenya has no commercial oil production at present, and the refinery would reportedly rely on regional crude and on imports from the Middle East and the United States. Constitutional lawyer Levi Munyeri has publicly threatened proceedings over public participation. These concerns do not decide the case, but they explain why disclosure matters.

The case raises questions that reach beyond Lamu. Can the State take possession of occupied land before the acquisition process is complete? What does Article 40(4) guarantee to long-term occupiers without title? Can land acquired for a public purpose be contributed to a privately controlled company, and on what terms? Must an agreement of this size be shown to Parliament? And what does a status quo order require of parties who intend to proceed regardless?

For public bodies, the sequence matters: notice, inquiry, award and payment come before possession, and the licence comes before the works.

For investors, title and licensing risk sits with whoever builds. A government assurance is not a substitute for a clean register and a valid licence.

For communities and occupiers without title, the absence of a title deed does not end the matter. Evidence of occupation, such as homes, graves, crops and witnesses, should be recorded and preserved early.

For prospective shareholders, wait for the approved offer document and read it.

The refinery may prove to be of real value to Kenya and the region. The court has not said otherwise. What the court will examine is whether the land was taken, and the works begun, in the manner the Constitution and statute require. Large projects do not suspend those requirements. The larger the commitment of public land and public money, the stronger the case for showing the public the terms.