A Land Acquisition Tribunal has ordered the government to pay persons affected by the Sh20 billion Soin-Koru Multipurpose Dam project at least Sh2.2 billion compensation within 90 days.
In the orders directed to the National Water Harvesting and Storage Authority and the National Land Commission (NLC), the tribunal chaired by Dr Nabil Orina also faulted the government for embarking on the development without a financial budgetary allocation to compensate those displaced by the project.
"It is clear to us that the State was not ready to undertake this acquisition for the failure to provide the necessary funds that would compensate the Applicants and other project affected persons not before the tribunal, who are part of Phase 2 of the project," it said.
The tribunal issued the ruling in a case filed by 27 people, whose land parcels were compulsorily acquired by the NLC on behalf of the National Water Harvesting and Storage Authority in 2022.
"Whereas government projects are subject to planning and budgeting, the failure to set aside funds for the project speaks to its lack of prioritization, and calls into question the legitimacy and legal propriety of the process of compulsory acquisition in its entirety," it added.
The tribunal directed that the payout be accompanied with interest earned at the base lending rates set by the Central Bank of Kenya with effect from January 31, 2022, the date of the awards.
Construction of the dam, which is located in Kericho and Kisumu counties, affected approximately 1,200 families whose land parcels were acquired for the development project. The construction works started in 2022 and stalled in September 2023 due to financial challenges.
The project was initiated to control floods caused by overflowing of River Nyando, improve food productivity through irrigation farming and electricity generation to the national grid. It was also aimed to address portable water supply shortages in Kisumu City, Kericho and neighbouring areas like Awasi, Chemelil and Ahero. It is projected to have water storage capacity of 93.7Million cubic metres.
The tribunal held that a State development project could not be viewed to be viable before compensation is paid to the project affected persons, who have been displaced or are at the risk of displacement.
It took note of the response filed by the National Water Harvesting and Storage Authority stating that the funds for compensation had not been entirely remitted to the NLC.
Documents indicate that total compensation assessed by NLC for the entire project was a sum Sh2,209,068,620 while the Authority had deposited a quarter of the same being Sh501,763,713.
"The Authority further admits that it does not know when such funds will be availed. It explained that there has not been any budgetary allocation towards the compensation funds in both the financial years 2023/2024 and 2024/2025. The delay or failure to pay compensation to the Applicants is detrimental to their rights under Article 40(3) of the Constitution of Kenya, 2010," the tribunal stated in the ruling.
"The Applicants are entitled to the immediate payment of compensation following the compulsory acquisition of their properties."
It observed that prompt payment of compensations was necessary to alleviate the disruption occasioned on project affected persons whose properties have been taken compulsorily.
According to the tribunal, NLC as the body mandated to acquire land on behalf of the State was under a legal obligation to ensure that the National Water Harvesting and Storage Authority had set aside funds for the acquisition.
"This requirement is necessary to ensure that the intended use of the land by the acquiring authority is not “fanciful” but has been budgeted for and funds have been allocated for the project," emphasized the tribunal.
In their case, the 27 people pleaded that the water authority had taken possession of their property and started works on the project without them receiving compensation for their parcels of land.
As a result of the delay in getting their due compensation, the Applicants contended that they have suffered various inconveniences including dispossession of the value of their land, food insecurity and poverty.
In response, the water authority said that the compensation of the project was divided into two phases.
Phase 1 involves compensation of persons within the embankment area, where commencement of the dam construction began and which constituted 60 per cent of the entire works. Phase 2 involves the compensation of persons within the reservoir area which accounts for the remaining 40 per cent of the works.
However, the tribunal ruled that in default of compliance with the orders issued, an order of injunction will issue upon the expiry of 90 days restraining the NLC, the Authority and the contractor from remaining or entering upon on the suit properties.
