RESETTLEMENT ACTION PLAN (RAP)

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1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized RUIRU SEWERAGE INFRASTRUCTURE PROJECT (RSIP) RESETTLEMENT ACTION PLAN (RAP) June 2013 Draft Version Public Disclosure Authorized NAIROBI METROPOLITAN SERVICES IMPROVEMENT PROJECT (NaMSIP) Prepared for: Ministry of Nairobi Metropolitan Development and Athi Water Services Board (AWSB) Prepared by: EMC Consultants Nairobi, Kenya

2 RSIP-Resettlement Action Plan Action Plan TABLE OF CONTENTS -This Section has been deliberately left blank- 2

3 RSIP-Resettlement Action Plan Action Plan ACRONYMS AND ABBREVIATIONS AFD Agence Francaise Development AWSB Athi Water Services Board CBO Community Based Organization CRCC County Resettlement and Compensation Committee EIA: Environmental impact assessment ESIA Environmental and social impact assessment ESMF: Environment and Social Management Framework ESMP Environmental and Social Management Plan FGD Focus Group Meetings GDP Gross Domestic Product HIV/AIDS: Human Immuno Deficiency Virus JKUAT Jomo Kenyatta University of Agriculture and Technology KISIP Kenya Informal Settlement Improvement Project KMP Kenya Municipal Program LA Land Act LRCC Locational Resettlement and Compensation Committee MOF Ministry of Finance MoNMED Ministry of Nairobi Metropolitan Development NaMSIP NAIROBI METROPOLITAN SERVICES IMPROVEMENT PROJECT NGO s: Non-Governmental Organizations NLC National Land Commission NMR Nairobi Metropolitan Region NUTRIP National Urban Transport Improvement Project OP: Operational Procedures PAPs Project Affected Persons PIU Project Implementation Unit PRA Participatory Rural Appraisal RAP Resettlement Action Plan RPF: Resettlement Policy Framework RSIP Ruiru Sewerage Infrastructure Project SCRCC Sub County Resettlement Compensation Committee SEBR Socio-Economic Baseline Report SIDA Swedish International Development Cooperation Agency SMP Social Management Plan STDs Sexually Transmitted Diseases SUP Socially Uplifting Project VRCC Village Resettlement and Compensation Committee WB: World Bank 3

4 RSIP-Resettlement Action Plan Action Plan Definitions Note: Several of the definitions below are sourced from the IFC s Handbook for Preparing a Resettlement Action Plan, Project: A project to construct a sewerage treatment plant and trunk lines for Ruiru Town. The Project includes a sewerage treatment plant for treating the wastes from Ruiru Town and its environs and trunk sewer lines. -Project-Affected Area: An area, which is subject to a change in use as a result of the construction or operation of the Project. -Project-Affected Person (PAP): Any person who, as a result of the implementation of the Project, loses the right to own, use, or otherwise benefit from a built structure, land (residential, agricultural, or pasture), annual or perennial crops and trees, or any other fixed or moveable asset, either in full or in part, permanently or temporarily. PAPs may include: Physically Displaced People, i.e. people subject to Physical Displacement as defined hereunder, Economically Displaced People, i.e. people subject to Economic Displacement as defined hereunder. -Physical Displacement: Loss of shelter and assets resulting from the acquisition of land associated with the Project that requires the affected person(s) to move to another location. -Economic Displacement: Loss of income streams or means of livelihood resulting from land acquisition or obstructed access to resources (land, water or forest) caused by the construction or operation of the Project or its associated facilities. Not all economically displaced people need to relocate due to the Project. -Project-Affected Household (PAH): A PAH is a household that includes Project-Affected Persons as defined above. A PAH will usually include a head of household, his/her spouse and their children, but may also include other dependents living in the same dwelling or set of dwellings, like close relatives (e.g., parents, grandchildren). -Compensation: Payment in cash or in-kind at replacement value for an asset or a resource that is acquired or affected by the Project at the time the assets need to be replaced. In this RAP, cash compensation means compensation paid in cash or by cheque. -Resettlement Assistance: Support provided to people who are physically displaced by the Project. Assistance may include transportation, and social or other services that are provided to affected people during their relocation. Assistance may also include cash allowances that compensate affected people for the inconvenience associated with resettlement and defray the expenses of a transition to a new locale, such as moving expenses and lost work days. -Replacement Value: The rate of compensation for lost assets must be calculated at full replacement value, that is, the market value of the assets plus transaction costs. The replacement value must reflect the cost at the time the item must be replaced. With regard to land and structures, replacement value is defined as follows: 4

5 RSIP-Resettlement Action Plan Action Plan - Agricultural land: the market value of land of equal productive use or potential located in the vicinity of the affected land, plus the cost of preparation to levels similar to or better than those of the affected land, plus the cost of any registration and transfer taxes; - Household and public structures: the cost of purchasing or building a new structure, with an area and quality similar to or better than those of the affected structure, or of repairing a partially affected structure, including labor and contractors fees and any registration and transfer taxes. -Vulnerable Groups: People who by virtue of gender, ethnicity, age, physical or mental disability, economic disadvantage, or social status may be more adversely affected by resettlement than others and who may be limited in their ability to claim or take advantage of resettlement assistance and related development benefits. -Replacement cost for houses and other structure means the prevailing cost of replacing affected structures, in an area and of the quality similar to or better than that of the affected structures. Such costs will include: (a) transporting building materials to the construction site; (b) any labor and contractors fees; and (c) any registration costs. -Resettlement Policy Framework (RPF) is an instrument to be used throughout the Program implementation. The RPF sets out the resettlement objectives and principles, organizational arrangements and funding mechanisms for any resettlement that may be necessary during implementation. The RPF guides the preparation of Resettlement Action Plans of individual sub projects in order to meet the needs of the people who may be affected by the project. The Resettlement Action Plans ( RAPs ) for the NaMSIP Program will be prepared in conformity with the provisions of this RPF. -Census: means a field survey carried out to identify and determine the number of Project Affected Persons (PAP) or Displaced Persons (DPs) as a result of land acquisition and related impacts. The census provides the basic information necessary for determining eligibility for compensation, resettlement and other measures emanating from consultations with affected communities and the relevant stakeholders. -Cut-off date: Cut-off date Date of completion of the census and assets inventory of persons affected by the project. Persons occupying the project area after the cutoff date are not eligible for compensation and/or resettlement assistance. Similarly, fixed assets (such as built structures, crops, fruit trees, and woodlots) established after the date of completion of the assets inventory, or an alternative mutually agreed on date, will not be compensated. -Displaced Persons: mean persons who, for reasons due to involuntary acquisition or voluntary contribution of their land and other assets under the program, will suffer direct economic and or social adverse impacts, regardless of whether or not the said Displaced Persons are physically relocated. These people may have their: standard of living adversely affected, whether or not the Displaced Person will move to another location; lose right, title, interest in any houses, land (including premises, agricultural and grazing land) or any other fixed or movable assets acquired or possessed, lose access to productive assets or any means of livelihood. -Involuntary Displacement: means the involuntary acquisition of land resulting in direct or indirect economic and social impacts caused by: Loss of benefits from use of such land; relocation or loss of shelter; loss of assets or access to assets; or loss of income sources or means of livelihood, whether the Displaced Persons has moved to another location or not. 5

6 RSIP-Resettlement Action Plan Action Plan -Involuntary Land Acquisition: is the possession of land by government or other government agencies for compensation, for the purposes of a public program against the will of the landowner. The landowner may be left with the right to negotiate the amount of compensation proposed. This includes land or assets for which the owner enjoys uncontested customary rights. -Land: refers to agricultural and/or non-agricultural land and any structures thereon whether temporary or permanent and which may be required for the program. Land acquisition means the possession of or alienation of land, buildings or other assets thereon for purposes of the program. -Rehabilitation Assistance: means the provision of development assistance in addition to compensation such as land preparation, credit facilities, training, or job opportunities, needed to enable the program Affected Persons and Displaced Persons to improve their living standards, income earning capacity and production levels; or at least maintain them at pre-program levels. -Resettlement and Compensation Plan: also known as a Resettlement Action Plan (RAP) or Resettlement Plan - is a resettlement instrument (document) to be prepared when program locations are identified. In such cases, land acquisition leads to physical displacement of persons, and/or loss of shelter, and /or loss of livelihoods and/or loss, denial or restriction of access to economic resources. RAPs are prepared by the party impacting on the people and their livelihoods. RAPs contain specific and legal binding requirements to resettle and compensate the affected party before implementation of the program activities commences. -Replacement cost: means replacement of assets with an amount sufficient to cover full cost of lost assets and related transaction costs. The cost is to be based on Market rate (commercial rate) according to Rwanda law for sale of land or property. In terms of land, this may be categorized as follows; (a) -Replacement cost for agricultural land: means the pre- program or pre-displacement, whichever is higher, market value of land of equal productive potential or use located in the vicinity of the affected land, plus the costs of: (b) preparing the land to levels similar to those of the affected land; and (c) any registration and transfer taxes; In determining the replacement cost, depreciation of the asset and the value of salvage materials are not taken into account, nor is the value of the benefits to be derived from the Project deducted from the valuation of an affected asset. -Host population People living in or around areas to which people physically displaced by a project will be resettled who, in turn, may be affected by the resettlement. -Involuntary resettlement Resettlement is involuntary when it occurs without the informed consent of the displaced persons or if they give their consent without having the power to refuse resettlement. -Land expropriation Process whereby a public authority, usually in return for compensation, requires a person, household, or community to relinquish rights to land that it occupies or otherwise uses OD 4.30 The World Bank Group Operational Directive on Involuntary Resettlement. OD 4.30 embodies the basic principles and procedures that underlie IFC s approach to involuntary resettlement associated with its investment projects. Stakeholders Any and all individuals, groups, organizations, and institutions interested in and potentially affected by a project or having the ability to influence a project. 6

7 7 RSIP-Resettlement Action Plan Action Plan

8 RSIP-Resettlement Action Plan Action Plan EXECUTIVE SUMMARY This is the Resettlement Action Plan (RAP) for Ruiru Sewerage Infrastructure Project (RSIP) to be funded under the Nairobi Metropolitan Services Improvement Project (NaMSIP) which is a program of the World Bank. As such, the RAP has been prepared based on the principles and procedures of the Resettlement Policy Framework (RPF) prepared for NaMSIP sub project investments. NaMSIP is financing investments in infrastructure and service delivery in Kenya s largest and most economically important urban conurbation (accounting for some 17 percent of the country s population and about 50 percent of its GDP). Together, the program aims to comprehensively address core issues that are constraining the development potential, efficiency, equity, and competitiveness of Kenya s urban areas. In addition, the NaMSIP will create synergies with the Bank s National Urban Transport Improvement Project (NUTRIP) by improving access to transport hubs and integrating land use planning into transport and overall urban planning, especially around commuter rail stations. Proposed Project Area The proposed RSIP is going to be located in Ruiru Town, which has an existing sewage collection network, and treatment system that utilizes septic tanks. Several medium sized industrial processing factories located in the town have their own waste treatment system. As an example, Spinners and Spinners a private company in Ruiru Town utilizes the ion exchange method to remove color from waste-water generated from their dyeing activities prior to disposal while Devki Steel Mills applies the oil separators to remove oil and grease from wastewater. The diffuse nature of waste treatment in the town has contributed to significant environmental degradation especially pollution of the existing water bodies. This calls for a centralized system of wastewater management, which is one of the objectives of the proposed project. Project Justification Nairobi Sewerage Master Plan projects population growth to an approximate 1.4 million people in the entire Nairobi Metropolitan Region (NMR), which encompasses Ruiru Town. Infrastructure development does not match the population growth rate that is currently estimated at 7.8% per annum in the urban regions of NMR. The master plan proposes development of Ruiru II Sewerage Treatment Works for the growing population of Ruiru town estimated to grow to 237,413 persons from 174,877 persons (2009 Population and Housing census). The aim of the Nairobi Metropolitan Development Strategy stipulates the goal of 8

9 RSIP-Resettlement Action Plan Action Plan improving the quality of life in the NMR, which is currently characterized by intense pressure on land, water, roads, sewerage, and other basic infrastructure need in any developing urban centres. Developing the RSIP is a milestone towards achieving the goals of the key strategic goals. Project Description The project will involve the construction and maintenance (during the defects liability period) of approximately 56.5 Km of sewer lines of various sizes ranging from 225mm to 1200mm spigot and socket flexible jointed concrete pipes, construction of 1050mm to 1500mm manholes and other auxiliary works. The works involve construction of trunk and tertiary sewers in Murera, Ruiru, Mugutha, Gitambaya, Membley, Peponi and the surrounding areas. The system will be connected to Ruiru Trunk Sewer that forms part of the scope. The system will empty the load to the Ruiru Waste Water Stabilization Pond and Sewerage Treatment System as described below. The construction of a 20,736 m3/day Waste Water Stabilization Pond and Sewerage Treatment System in Kibendera village is the ultimate flagship of this RSIP and is where all the trunk sewerage lines will drain into for eventual treatment of the wastes before they are released into the Ruiru River. Project Beneficiaries The project beneficiaries include the entire population of Ruiru Town and its environs including Membley and all centres between Kenyatta University and Ruiru Town. Scope of the RAP The RAP was prepared based on the feasibility design undertaken by Athi Water Services Board engineers. This RAP is prepared based on the guiding principles detailed in the Resettlement Policy Framework (RPF) for NaMSIP for involuntary resettlement. The main objective of the RAP is to minimize the adverse impacts to project affected persons (PAPs) and enhance or at least restore their livelihood to that of the pre-project level. The RAP includes the institutional arrangements, schedules, and the budgets to facilitate resettlement process that will be necessitated as a result of this project. Potential Adverse Impacts of Ruiru Sewerage Infrastructure Project Project activities that will give rise to resettlement include the construction of the wastewater stabilization pond and sewerage treatment plant and ancillary trunk 9

10 RSIP-Resettlement Action Plan Action Plan sewer lines to be located in different areas within Ruiru Town to drain into the sewerage treatment plant as described above. The construction of the RSIP and related structures will lead to land acquisition, physical and economic displacement of people, loss of shelter, assets, income sources and livelihood, as well as restriction of access to economic resources. Impacts at Waste Water Stabilization Ponds and Sewerage Treatment Plant Land in this site is approximately Ha and is owned by the Ruiru Municipal Council, which has offered it for project construction at no cost. The land is however encroached by local residents who are conducting stone quarrying activities and for that matter as a result of the project; these PAPs will be economically displaced. Structures: 60 structures will be affected. This will include 12 Commercial/business structures found in the proposed site for construction of the Waste Water Stabilization Ponds and Sewerage Treatment Plant 48 Residential structures found in the proposed site for construction of the Waste Water Stabilization Ponds and Sewerage Treatment Plant Trees and crops Sewerage Trunk Lines There are 4 major sewerage trunk lines that will drain into the Waste Water Stabilization Ponds and Sewerage Treatment Plant, which will economically displace PAPs. These lines will be located adjacent to the existing riverine riparian reserve or natural drains which is a common practice when designing sewer lines to take advantage of the natural gradient and gravitational force. The lines are; - 1. Infrastructure for Sewerage Trunk lines Membley Estate Route This sewerage trunk line aimed to serve Membley Estate will be laid along the Kamiti River and will be approximately 4 Kms before it joins with line the Sukari Ranch line. Land tenureship along Kamiti River is titled even though it is riparian reserve land contrary to the Water Act. All the 21 PAPs who have land along the riparian where the sewerage trunk line will traverse have legal title and in essence have formal holding of the land. 2. Infrastructure for Sewerage Trunk lines Ruiru River Route This sewerage trunk line, which will run along the Ruiru River from Ruiru Town, is approximately 9.82 kms and will serve the Ruiru Town population and will drain directly into the proposed sewerage treatment plant in Kibendera village, Gatongora location. The land targeted for this line is within the 30m riparian reserve (Ruiru River) and even though the PAPs cultivate crops on the riparian 10

11 RSIP-Resettlement Action Plan Action Plan reserve, they do not own any form of title for this land and will thus not be compensated for land ownership. 11

12 RSIP-Resettlement Action Plan Action Plan 3. Infrastructure for Sewerage Trunk lines Kahawa Sukari Ranch Route This line will connect from the Membley line, which is 6.35km and cut into the land owned by Sukari Ranch (a private investor) before crossing into the Eastern bypass where it will connect to the Eastern by pass line. The Sukari Ranch owner will be affected economically and physically legally owns the land targeted for constructing the sewerage trunk line. This PAP has official and legal tenure ship on the land. 4. Infrastructure for Sewerage Trunk lines Eastern By Pass Route This sewerage trunk line will connect from the line in Sukari Ranch after it crosses the Eastern by pass and will run along a normal and existing natural drain for approximately 4.6 Kms and drain directly into the sewerage treatment plant that is located in Kibendera village. This land is natural drainage/riparian owned by the government and therefore, no form of land compensation is envisaged. At the same time, there are no structures or crop cultivation along the natural drain and no formal or informal claim of land ownership thus far. With respect to the amount of land, trees and crops, the project will affect: Land The project will acquire a total of Ha of land, which is owned by the government. The project will not acquire any land owned by PAPs this is because the present PAPs for example in the case of the proposed sewerage treatment plant are not the legal owners of the land but encroachers. The other category of PAPs are who will be affected are using government riparian land owned by the government and thus are not legal owners of the land. Trees 8,988 trees will be removed. Crops Ksh. 2,154,163.8 worth of crops will be lost Project Affected Persons (PAPs) Project affected persons (PAPs) are individuals whose assets may be lost and/or affected, including land, property, other assets, livelihoods, and/or access to natural and/or economic resources as a result of activities under the RSIP. The project will physically displace (permanently) 60 households that are currently owning residential and commercial structures/houses in the proposed sewerage treatment plant area while another 359 households will be economically displaced as a result of loosing agricultural land (that they have no legal tenure over since it is riparian reserve) that falls within the trunk sewer line areas as shown in Table 1 12

13 RSIP-Resettlement Action Plan Action Plan below. Approximately 1,619 residents are going to be affected by the project and hence referred to as Project Affected Persons. Table 1. Affected PAPs Residential /Commercial Structures Households Household Members Project affected households are groups of PAPs in one household and where one or more of its members are directly affected by the RSIP. These include members such as the head of household, male, and female members, dependent relatives and members, tenants, etc. Vulnerable groups are groups who could be a member of affected households. The RSIP has separately identified the vulnerable members, such as those who are too old or too ill; children; physically challenged; and women headed households. The vulnerable groups are eligible for additional assistance under this RAP, as it is explained later in Entitlement Matrix table and the budget. Category of impact The following category of impacts in relation to PAPs have been identified namely; - Project affected persons with land only (land owners) Project affected persons with business structures (property owners) Project affected persons with land and trees (land and crops) Project affected person without land (Quarry workers e.g. Ballast breakers, stone loaders, stone cutters, stone dressers among others). Vulnerable groups orphans, children, the sick, the old, women, disabled, and widows. Minimizing resettlement and losses Efforts have been made to align the sewer lines, trunk lines, reticulation lines and canals along the existing river bed and within the 30m government owned riparian reserve land so as to avoid or minimize relocation and therefore resettlement and disturbances arising from land acquisition in line with the World Bank OP Additional measures taken or steps to be taken to reduce impact include: Roads for earth moving equipment will be constructed along the earmarked main canal and/or existing tracks to limit social disturbances and destruction of the environment. All those that shall be affected by the project will be fully compensated before project commencement. 13

14 14 RSIP-Resettlement Action Plan Action Plan

15 RSIP-Resettlement Action Plan Action Plan The Census and the Socio - Economic study The census and the socio-economic study of PAPs was undertaken between March and April 2013 including consultative meetings with different categories of PAPs. The socio- economic survey was done using a semi-structured household questionnaire. The questionnaire covered the households baseline information on incomes and expenditures, occupational and livelihood pattern, use of resources, arrangements for use of common property, social organization, leadership patterns, community organizations, and cultural parameters. The census survey and socio-economic study findings revealed the following: The project has a total of 419 households and population of 1,419 (60.9% males and 38.2% females). A total of 419 PAPs households were enumerated. The PAPs had lived in their respective areas for an average period of 30 years. The vulnerable groups1 among the projected affected persons totaled to 5 and are classified into seven categories; the physically handicapped, the extreme poor, the elderly/aged, widows, HIV/AIDS affected household, and the orphaned children. The main livelihood sources in the project area include farming, formal employment, informal employment (quarrying, stone cutting, stone dressing), small scale trading. The average monthly income per household is Kshs. 8,256 while average total monthly expenditure per household was slightly lower at Kshs. 15,755 Resettlement Policy and Entitlements The process and procedures of land acquisition for the RSIP will be principally governed by Kenya land laws including; Land Act 2012, Land Registration Act 2012, National Land Commission Act 2012 as well as the World Bank Involuntary Resettlement Policy (OP 4.12). The Kenyan land laws and the Constitution of Kenya (CoK) recommend just compensation where resettlement is experienced but it is not clear on specifics of what constitutes just compensation. The World Bank OP.4.12 recommends full replacement costs for all PAPs. This RAP has adopted the full replacement cost that would restore or improve the livelihood of the PAPs to pre-project level. Valuation Methodology 1 Vulnerable groups are under the risk of being marginalized, since the investments priorities identified by poor communities tend to reflect the demands of the majority and usually do not capture the special needs of vulnerable groups, which are usually the minority in their own communities. Some typical examples of this are: 15

16 RSIP-Resettlement Action Plan Action Plan In Kenya, the Land Act stipulates that compensation value must be just. This can be interpreted to mean that the value paid must include all the other miscellaneous expenses as well as disturbance to them. Specific guidelines for assessing or determining just compensation have not yet been developed. In this RAP, compensation will be based on replacement cost explained later in the document. Valuation for assets as outlined in this RAP involved field survey to collect data on the PAPs, land to be acquired/easement rights, structures, trees, community assets and crops affected. Replacement Cost approach was used. Compensation All affected persons irrespective of their status or whether they have formal titles, legal rights or not, will be eligible for some kind of assistance if they occupied the land before the entitlement cut-off date. The entitlement cut-off date was 29 th March 2013 when census started and the time when the assessment of persons and their property in the area was carried out for the preparation of this RAP. Different categories of affected persons will be entitled to different compensation as outlined in the entitlement matrix, Table 26 in Chapter 6 of this RAP. Compensation will be paid to project affected persons by the National Land Commission (NLC) on the basis of the requirements of the Land Act Under this law, landowners and leaseholders are entitled to be compensated at market value for land; tenants for crops and property on the land that they rented; property owners for the value of any property on expropriated land. NLC will make all awards to the PAPs in line with the entitlements outlined in this RAP. Therefore, the MoNMED/NaMSIP will remit the money for the compensation award to NLC in order for NLC to make the payments as required by the Land Act, which mandates NLC to make awards to all PAPs. Grievance Management mechanisms Grievance management forms a critical part of any resettlement and compensation program. In this project, grievance management will be undertaken by NLC and facilitated by the County Resettlement and Compensation Committee (CRCC), Sub County Resettlement and Compensation Committee (SCRCC) at the District Level, Locational Resettlement and Compensation Committee (LRCC) and Village Resettlement and Compensation Committee (VRCC) at the lowest project site level. VRCCs will be the first points of contacts in resolving disputes before referring to the other committees. However, this RAP also provides for a formalized grievance redress mechanism to help reduce any complaints and grievances of the PAPs and to enhance the acceptance of rehabilitation and resettlement program through people 16

17 RSIP-Resettlement Action Plan Action Plan participation ad support. All efforts should be made to reduce unnecessary litigation by resolving disputes through mediation and using the committees highlighted above. In the event that disputes are unresolvable via the committees, then PAPs will seek resolution at the high court or any other relevant courts in Kenya with jurisdiction on the same. Institutional Framework for RAP Implementation and Grievance Appeals The Ministry of Nairobi Metropolitan Development and Athi Water Services Board are the joint implementing agencies responsible for the implementation of this RAP, and will also ensure affected household are fully compensated. The implementation of this RAP will be at various levels namely; Ministry of Metropolitan Development or its successor- will mobilize funds from GoK for resettlement and compensation purposes of this RAP. AWSB/MoNMED/RSIP- Project Implementation Unit (PIU) - will be in charge of implementation of this RAP; establishing ad hoc Sub County Resettlement and Compensation Committee (SCRCC) and Local Resettlement and Compensation Committee (LRCCs); review the budget needed for the implementation of this RAP and make request for the funding from Ministry of Nairobi Metropolitan Development; provide the funds for compensation to the National Land Commission (NLC)2, which in turn will compensate the affected people. The joint AWSB/MoNMED/PIU will also provide budget for SCRCC and LRCCs operations; ensure the grievance committees are established and working; collect all the needed documentation for compensation as well as grievances and compiling them; sending a copy of all the documents to the RSIP/PIU; and monitoring of the RAP implementation The Land Act 2012 empowers NLC to manage public land and carry out compulsory acquisitions of land for specified public purposes. NLC has been constituted and thus legally, NLC is supposed to provide approval to the request made by MoNMED to acquire land. NLC is also expected to notify landholders in writing of the intention to acquire land; assist in resolving disputes related to compensation; undertake public consultation on intended acquisition; receive money from MoNMED for actual payment of entitlement awards to PAPs. NLC holds the authority to execute compulsory acquisition in Kenya. The Government of Kenya bears the authority for land acquisition, which is vested on the NLC by legislation. 2 According to the Part VIII of the Land Act 2012, National Land Commission (NLC) exclusively reserves the power and functions on compulsory land acquisition, including valuation and public participation. However, NLC members are not yet appointed. For more details see the Institutional Setting Chapter. 17

18 RSIP-Resettlement Action Plan Action Plan It is important to note that the NLC also has statutory powers to prescribe criteria and guidelines for land acquisition. Therefore, the criteria prescribed in this case could necessitate a variation or revision of this RAP if NLC, which is constituted but has not yet fully active in terms of operation, embark on the land acquisition process if they so demand. At the sub County level, MoNMED and AWSB through the RSIP/PIU will establish a sub County Resettlement and Compensation Committee (SCRCC) to facilitate the implementation of the RAP in a transparent and participatory resettlement program. There will be only one Sub County Resettlement and Compensation Committee since the project affects only one sub County which is Kiambu district now known as a sub County. They will work in coordination and close communication with the NLC. (SCRCC) will have membership of: Sub County/ District Commissioner (Chair) Land Registrar; Land Survey Officer; RSIP/PIU representative Representative of the PAPs, One active NGO in the district; District Gender Social and Community Development officer; There will be Locational Resettlement and Compensation Committees (LRCCs) in all the locations that will be affected by the project and the membership will include: In every affected village there will be a Village Resettlement and Compensation Committees and the membership will include: The sub locational chief, Assistant chiefs, One project affected youth, One project affected woman, One project affected male A representative of vulnerable groups, A CBO in the location. Business representative. The LRCCs will help ensure effective communication between PAPs and SCRCC and between PAPs and RSIP/PIU. They will facilitate grievance management mechanism of the project -affected persons in the locational units. 18

19 RSIP-Resettlement Action Plan Action Plan Resettlement Options Even though the RSIP will physically displace PAPs specifically in the area proposed for the construction of the sewerage treatment plant, the land does not legally belong to these PAPs and therefore according to the Bank safeguard requirements they are not entitled to resettlement options other than compensation for economic losses and restoration of livelihoods. Resettlement options have for that reason not been considered in this RAP. The land for the wastewater stabilization ponds and sewerage treatment plant is owned by Ruiru Municipal Council, which has offered the same at no cost to the project. Even though there are over 340 PAPs who undertake stone quarrying activities and other income generating activities in the land identified for the construction of the sewerage treatment plant including a few residential structures, the PAPs are fully aware that they do not own the land. They have all been receptive of the project and have not resisted any move to displace them from the site in spite of the fact that they will loose their income source. PAPs who are farming along the 30 metre riparian reserve along the riverbanks of Ruiru River where a sewerage trunk line of 9.82Kms will be constructed will only be economically and not physically displaced and thus not necessitating resettlement. There are PAPs who own legal title on land in the riparian reserve where another trunk line will be laid as the case is with PAPs along Kamiti River and these PAPs will not be physically displaced instead the RAP proposes that easement rights be negotiated by the client instead of full acquisition since the land needed for the sewerage lines is only 3 metres wide and the trunk lines will be underground. The line cutting across Sukari Ranch which is approximately 6.35Km is under individual private ownership and similarly, easement rights as a form of acquisition is proposed instead of full land acquisition hence does not warrant physical resettlement. Cost estimates/valuation of Assets Based on the Land Act and OP.4.12, the RAP consulting team came up with cost estimates for the RSIP RAP. As mentioned earlier, it is important to note that the Land Act 2012 does not expressly include costs related to relocation. However, for this RAP, a 15% disturbance and relocation assistance was included to the budget. The relocation assistance will cater for economic and social as well as physical disturbance caused to a PAP. The costs add up to KES 25,596, % 19

20 RSIP-Resettlement Action Plan Action Plan Waste Water Ponds and Sewerage Treatment Plant Land-Valuation The land where the sewerage treatment plant will be constructed is by far the largest in size with acres of land targeted for acquisition. However, there will be no compensation in terms of purchase of this land since the Ruiru Municipal Council, which has offered the land for the project at no cost, owns it. (See annex 4 for official letters on the same). The over 340 PAPs who are engaging in various economical activities including quarrying of stones, running of food joints/eateries and those residing in the project site will be compensated for loss of income as follows; Table 2. Quarry Workers and proposed compensation Occupation Number Enumerated Daily Rate Total Monthly Earning (Kshs) per category of worker Quarry Owners 105 1,000 per day 30,000 Quarry loaders per day 27,000- Quarry drillers per day 18,000- Quarry workers per day 15,000- Business men per day 15,000 Traders per day 15,000 Casuals per day 9,000 Hotel owners 12 1,000 per day 30,000 Traders 10 1,000 per day 30,000 Hotel employees per day 15,000 Builder per day 15,000 Truck driver per day 15,000 Uknown Occupants 8 All the workers will be compensation for loss of income for up to a period of 3 months from the time of displacement from the site where they conduct their business activities. Sewer Trunk Lines Land-Valuation Land for the different sewerage lines will not involve full acquisition through purchase but will instead entail easement rights as a form of acquisition to reduce the costs of acquisition. Livelihood Restoration Program To mitigate against destitution and impoverishment of those likely to be adversely affected by the project, particularly those losing their livelihood/income like the quarry workers; loaders; stone cutters, dressers, loaders, drillers and the identified vulnerable persons, a livelihood restoration budget to assist approximately 5 vulnerable persons, which includes those whose livelihoods will be affected, was 20

21 RSIP-Resettlement Action Plan Action Plan factored at a rate of Ksh 50,000 to each vulnerable household affected by the project. Similarly, a 15% of the total compensation cost will be provided to each PAP as a disturbance and relocation allowance. The cost for implementing the RAP is estimated to be Ksh. 30,192,727 including the costs of professional services, project management, and capacity building of PAPs and monitoring services. The total RAP cost will therefore be Ksh. 30,192,727 Table 3 below shows a summary of the total RAP budget. Table 3: Summary Budget of the RAP Land Easement Structure Compensation Trees and Crops Cash compensation for loss of income Relocation Assistance Assisting Vulnerable PAPs RAP Implementa tion Cost 93,600 6,600, ,154, ,722,000 3,872, , , ,599,844 The budget will be revised and finalized when individual PAP compensation agreements have been negotiated. Responsibilities Overall responsibility for implementation and monitoring of the RAP including the Compensation Plan rests with MoNMED/AWSB-RSIP/PIU. The RSIP/PIU will employ a team of project specialist at the project level who will be responsible for the implementation of the RAP jointly with the RCCs at all levels. The team of RSIP/PIU at the project level includes A Civil Engineer, Sociologists, Environmentalist, Surveyor and Land Economist. They will also be backed up by a supervision consultant who will have the same experts all who will be responsible for implementing the RAP including monitoring. The tasks of the RSIP/PIU will include among others; - a. Civil Engineers- follow-up on the design, route alignment and construction supervision b. Environmentalist - follow-up on implementation of EMP c. Sociologist - follow-up on implementation of RAP as well as social issues within the project d. Surveyors confirm the sewer routes based on new alignments e. Land economist re-confirm and values assets along the Relevant government institutions at the County and sub County level, will be engaged and execute their responsibilities as provided by the land laws of Kenya. 21

22 RSIP-Resettlement Action Plan Action Plan Monitoring and Reporting RSIP/PIU will: Track implementation of each item of the RAP, and report on progress as part of the agreed annual reporting. Annual RAP implementation reports will include feedback from PAPs collected through meetings with the Community Forum. Provide annual reports to local stakeholders on implementation of the RAP as part of the Public Consultation and Disclosure Program. Local CBOs and NGOs active in the project area will also undertake monitoring, evaluation and reporting RAP Implementation Schedule The activities related to construction of sewerage treatment plant and trunk sewer lines are expected to commence in July 2013 by which time the PAPs are expected to have moved from the site. PAPs have already been informed of this date. It is expected that before July 2013, all the PAPs will have been fully compensated in line with the findings of the RAP study and that all the grievances arising will have been resolved in order to pave way for the project execution. 22

23 RSIP-Resettlement Action Plan Action Plan 1 INTRODUCTION 1.1 Project Overview Nairobi Metropolitan extends over 32,000 square kilometers that depends on Nairobi City for employment and social amenities. This is spurred by rapid population growth around Kiambu, Thika, Murang a Machakos and Kajiado. It will therefore be difficult to separate development of Nairobi City from the metropolitan region in terms of development and planning. Nairobi Metropolitan area growth rate is estimated to be growing at an average 7.8% per annum creating a need for integrated roads, bus and rail infrastructure for metropolitan area, efficient mass transport system for Nairobi Metropolitan Area, replacement of slums with affordable low cost/rental, provision of adequate housing, development and enforcement of planning and zoning regulations, efficient water supply and waste management infrastructure, promotion, development and investment in sufficient public utilities, public services and world class infrastructure for transforming Nairobi into a global competitive city for investment and tourism. Project Information The Government of Kenya has requested assistance from the World Bank to help with its urban transformation. As one project is not enough, it has asked for support for three Bank-financed projects, each addressing a different element of urban development. The first is the Kenya Municipal Program (KMP), approved in May 2010 and effective in June This program focuses on strengthening the essential institutions of urban management budgeting, financial management, participatory planning, project management, operations and maintenance, and good governance in 15 of Kenya s largest cities, while also financing investments in citywide infrastructure. The Kenya Informal Settlement Improvement Project (KISIP), the second of the programs, was approved in March 2011 and became effective in June It is working in the same 15 municipalities as the KMP, and financing strengthening of tenure security, participatory planning, and settlement infrastructure. The KMP and KISIP are co-funded with the Agence Française Development (AFD) and the Swedish International Development Cooperation Agency (SIDA). The third is the Nairobi Metropolitan Services Improvement Project (NaMSIP), which started in This will finance investments in infrastructure and service delivery in Kenya s largest and most economically important urban conurbation (accounting for some 17 percent of the country s population and about 50 percent of its GDP). Together, the three programs will comprehensively address core issues that are constraining the development potential, efficiency, equity, and 23

24 RSIP-Resettlement Action Plan Action Plan competitiveness of Kenya s urban areas. In addition, the NaMSIP will create synergies with the Bank s National Urban Transport Improvement Project (NUTRIP) currently under preparation by improving access to transport hubs and integrating land use planning into transport and overall urban planning, especially around commuter rail stations. Implementation of Nairobi Sewerage Master Plan Peri urban boundaries of Nairobi is constantly growing at a projected population of 350,000 people in 1989 to 1.4 million people in 2020 and this poses a major challenge to the County government due to unavailability of sewerage system in the area. The present sewerage network covers most of the built up areas of the city. Ruiru, Juja and Thika regions, which are in the Northern Part of the city, are partially sewered with the sewer system available for Kenyatta University, Jomo Kenyatta University of Science and Technology (JKUAT); the other areas are entirely on septic tanks, conservancy tanks and pit latrines. In order to meet the envisaged development for Nairobi and its environs, the master plan indicates that there will be need to provide sewerage services through construction of own local sewerage treatment systems or by employing privately owned on site. The Nairobi Sewerage Master Plan proposes development of Ruiru II Sewerage Treatment Works in the area downstream on the confluence of Ruiru River to serve Ruiru and Juja Township respectively. Nairobi Metropolitan Development Strategy The rising population in the NMR is an indicator of regional development through the purchasing power. NMR are characterized by extreme pressure on base resources including water resources, land and services including transportation, solid waste management, water supply, street lighting, sewerage infrastructure, housing and development of social amenities. The project is therefore categorized as Socially Uplifting Project (SUP) to the persons living with the NMR of Ruiru and Juja, which currently depend on septic tanks and pit latrines. Need for sewerage infrastructure for growing population in NMR Ruiru Town population is projected to rise to 237,417 by 2015 with a growth rate of an average of 7.8% per annum from the study it was established that the area has no proper sewerage infrastructure for the region hence there is an urgent need of setting up an offsite treatment facility to handle the waste generated by the population. With the rapid increase in the population of Ruiru Town due to the increase in rural-urban migration, and the subdivision of ranches surrounding the town into small units, there is need for provision of adequate infrastructural facilities to take care of wastes generated within the town. 24

25 RSIP-Resettlement Action Plan Action Plan Ruiru is a dormitory town for the nation's capital, and is connected to the capital city by both rail and road. According to 2009 census, Ruiru had a population of 174, 877 and is project to rise to 237,413 by 2015, the town has struggled to adapt to the influx of people and modernizing its sewerage system is of paramount importance. 1.2 Scope of the Resettlement Action Plan Project Social Documentation This Resettlement Action Plan (RAP) has been prepared for submittal within the framework of the NaMSIP Resettlement Policy Framework (RPF) and Environmental and Social Impact Assessment (ESIA), which include the social documentation identified below: This RAP, which describes the measures that will be taken to address displacement impacts entailed by the construction and operational phases of the Project A Socio-Economic Baseline Report (SEBR), which provides a detailed description of the socio-economic situation prevailing in the Project area at the time of undertaking the ESIA, and which was appended to the ESIA, A Social Management Plan (SMP), which provides an assessment of social and economic impacts, a description of proposed mitigation measures and an action plan, which presents the organizational and other arrangements proposed by RSIP to implement the social and economic mitigation measures. This document will be submitted to the World Bank, and to Kenya government entities having jurisdiction over the management of social issues related to resettlement. The Environmental and Social Impact Assessment (ESIA) report for this project has already been submitted to the World Bank and the National Environment Management Authority (NEMA) and consequently approved Scope of the Resettlement Action Plan This RAP contains: A summary description of the Project, A summary description of the baseline socio-economic conditions in the Project area, An assessment of the Kenyan legal and international requirements applicable to displacement and resettlement in the Project, An assessment of likely displacement impacts, A description of the proposed strategy to deal with displacement impacts, 25

26 RSIP-Resettlement Action Plan Action Plan Implementation details, which presents the organizational and other arrangements proposed by RSIP to implement the mitigations related with physical and economic displacement. 26

27 RSIP-Resettlement Action Plan Action Plan 2 PROJECT DESCRIPTION The Ruiru Sewerage Infrastructure Project (RSIP) will involve the construction of and maintenance (during the defects liability period) of approximately 56.5 Km of sewer lines of various sizes ranging from 225mm to 1200mm spigot and socket flexible jointed concrete pipes, construction of 1050mm to 1500mm manholes and other auxiliary works. The scope of works essentially includes, but not limited to, the following: Construction of 20,736 m3/day Waste Water Stabilization Pond/Sewerage Treatment System. Construction of 56.5Km sewerage network: Provision, testing, excavating for, laying and backfilling to the required levels for spigot and socket flexible jointed concrete pipes as follows; mm diameter Km mm diameter Km mm diameter Km mm diameter Km mm diameter Km mm diameter Km mm diameter Km Construction of 825 concrete manholes and associated works: Provision, testing, excavating for, laying and backfilling to the required levels for precast concrete ring manholes as follows; 1050mm diameter No. 1200mm diameter No. 1500mm diameter No. Construction of 2 parallel Waste Water Stabilization Pond units each of 10,368 m3/day with the following components including auxiliary works as detailed in drawings: Inlet works Influent channel and inlet distribution chamber 2 Anaerobic ponds (in parallel) 2 Facultative ponds (in parallel) 2 Maturation ponds (in series) Outlet channel and outlet works Sludge drying beds 27

28 RSIP-Resettlement Action Plan Action Plan Septage disposal facilities Plant water and wash water supply Ancillary support facilities Site road works and drainage Access road to the WWTP 2.1 Location and Size The proposed RSIP is located within Ruiru Town in Thika sub County, Kiambu County of Kenya. Located within three kilometers of Nairobi's city boundary, Ruiru is a dormitory town for the nation's capital, and is connected by both rail and road to the Capital City. The town covers an area of 292 km2, and is surrounded by numerous coffee plantations. According to 2009 census, Ruiru had a population of 174, 877 and is project to rise to 237,413 by Ruiru Town is located on the 0.5 N Latitude and 37 E Longitude lines. The town stands on the Nairobi-Thika highway, which is a section of A2 Nairobi-Addis Ababa trunk road. It is situated 16 km North-East of Nairobi town and it borders Nairobi City. The major roads crossing through the town are Nairobi-Thika highway, Kenyatta highway joining Kiambu Municipality and Ruiru Municipality and Kwa Maiko road joining Ruiru and Githunguri. Ruiru Town is accessible by both railway and national trunk roads and has a fertile hinterland. Its location nationally plays a significant role as a satellite town of Nairobi linking the Northern parts of Kenya with the City through Thika road and the Nairobi-Ruiru railway line. GPS coordinates of the proposed project site are (280254E N). The site is relatively ideal for setting up a treatment facility as the land was set-aside in the 1990s by Ruiru Municipal Council for construction of Sewerage system for Ruiru town. Administrative Setup Ruiru Town is administratively divided into four sub-locations namely Kiuu, Theta, Mugutha and Ruiru and further divided into five wards namely Githurai, Kahawa Sukari, Gitothua, Murera and Biashara. The study area generally is the area bounded by Theta River to the North, Kamiti River to the South, the entire Ruiru town CBD and Ruiru East settled area. 2.2 Summary Description of the Main Project Components The construction of a waste water stabilization pond and sewerage treatment plant and trunk sewers (primary, secondary and tertiary) lines comprise the major components of the RSIP, as further described below. The works involve construction of trunk and tertiary sewers in Murera, Ruiru, 28

29 RSIP-Resettlement Action Plan Action Plan Mugutha, Gitambaya, Membley, Peponi and the surrounding areas. The system will be connected to Ruiru Trunk Sewer that forms part of the scope and the load will be emptied into the Ruiru Sewerage Treatment Plant, which is also part of the project construction. Waste Water Ponds and Sewerage Treatment Plant This infrastructure will be the final disposal point for all the wastes generated from Ruiru Town and its environs and will primarily treat all the wastes before release to the adjacent Ruiru River. Infrastructure for Sewerage Trunk lines Membley Estate Route This is a 4Kms long trunk line that will be connected to all the reticulations from Membley Estate and will drain all the wastes from the estate before connecting to the Sukari Ranch trunk line. Infrastructure for Sewerage Trunk lines Ruiru River Route The trunk line along River Ruiru is approximately 9.82 Kms long and will connect all the reticulations in Ruiru Town Centre and drain directly into the wastewater ponds and sewerage treatment plant in Kibendera village. Infrastructure for Sewerage Trunk lines Kahawa Sukari Ranch/Brookside Route This trunk line (6.35 Kms) will primarily connect from the Membley trunk line and cut across the Sukari Ranch to join with the line on the Eastern by pass which will then drain into the wastewater ponds and sewerage treatment plant in Kibendera village. Infrastructure for Sewerage Trunk lines By Pass Route This is a 4.6 Kms long trunk line which will begin from the Eastern By pass and following the natural drain will eventually drain all the wastes from Membley Estate into the wastewater ponds and sewerage treatment plant in Kibendera village. 2.3 Project Development Schedule The following general schedule and order of development is proposed. Table 5. Projected completion of works in RSIP Site Activity Completion Time Construction of Sewerage Treatment Plant July 2013-July 2015 Construction of Sewer Trunk Lines July 2013-July 2015 Full operation of Sewerage Treatment Plant and July 2015 Trunk Lines PROJECT COMPONENTS AND ACTIVITIES THAT WILL REQUIRE LAND ACQUISITION AND RESETTLEMENT The following project components will require land acquisition and lead to physical and economic displacement. 29

30 RSIP-Resettlement Action Plan Action Plan Waste Water Stabilization Ponds and Sewerage Treatment Plant Land in this site is approximately Ha and is owned by the Ruiru Municipal Council, which has offered it for project construction at no cost. The land is however encroached by local residents who are conducting stone quarrying activities and for that matter as a result of the project; these PAPs will be economically displaced. Structures: 60 structures will be affected. This will include 12 Commercial/business structures found in the proposed site for construction of the Waste Water Stabilization Ponds and Sewerage Treatment Plant 48 Residential structures found in the proposed site for construction of the Waste Water Stabilization Ponds and Sewerage Treatment Plant Trees and crops Sewerage Trunk Lines There are 4 major sewerage trunk lines that will drain into the Waste Water Stabilization Ponds and Sewerage Treatment Plant in Kibendera Village, which will economically displace PAPs. These lines will be located adjacent to the existing riverine riparian reserve or natural drains which is a common practice when designing sewer lines to take advantage of the natural gradient and gravitational force in transporting the wastes. The trunk lines are; - Infrastructure for Sewerage Trunk lines Membley Estate Route This sewerage trunk line aimed to serve Membley Estate will be laid along the Kamiti River and will be approximately 4 Kms before it joins with line the Sukari Ranch line. Land tenureship along Kamiti River is titled even though it is riparian reserve land contrary to the Water Act. All the 18 PAPs who have land along the riparian where the sewerage trunk line will traverse have legal title and in essence have formal holding of the land. Infrastructure for Sewerage Trunk lines Ruiru River Route This sewerage trunk line, which will run along the Ruiru River from Ruiru Town, is approximately 9.82 Kms and will serve the Ruiru Town population and will drain directly into the proposed sewerage treatment plant in Kibendera village in Gatongora location. The land targeted for this sewerage line is within the 30m riparian reserve of Ruiru River and even though the PAPs cultivate crops on the riparian reserve, they do not own any form of title for this land and will thus not be compensated for land ownership. Infrastructure for Sewerage Trunk lines Kahawa Sukari Ranch Route This line will connect from the Membley line and cut into the land owned by Sukari Ranch (a private investor) before crossing into the Eastern bypass where it 30

31 RSIP-Resettlement Action Plan Action Plan will connect to the Eastern by pass line. The Sukari Ranch owner who will be affected economically and physically owns the land targeted for constructing the sewerage line. This PAP has official and legal tenure ship on the land. Infrastructure for Sewerage Trunk lines By Pass Route This sewerage trunk line will connect from the line in Sukari Ranch after it crosses the Eastern by pass and will run along a normal and existing natural drain for approximately 4.6 Kms and drain directly into the sewerage treatment plant. Mechanisms Used To Minimize Displacement Based on the socio-economic studies and consultations undertaken for the preparation of the ESIA and the RAP, some of the impacts identified as a result of the preliminary and detailed design have been taken into consideration through specific measures to mitigate those impacts. During the consultations, PAPs proposed that the trunk sewer lines should, as much as possible; go through agricultural land or government 30m riparian land so as to reduce the number of people and structures affected. As a result, the sewer trunk lines have been rerouted to the existing river riparian land avoiding most homesteads and business premises. All the mitigation measures expected to reduce negative impact are discussed in Chapter 5 of this document. 31

32 RSIP-Resettlement Action Plan Action Plan Scope And Objectives Of The Resettlement Action Plan SCOPE OF THE RAP The Resettlement Action Plan (RAP) was prepared based on the feasibility design undertaken by engineers from Athi Water Services Board. OBJECTIVES OF THE RAP The RAP has been developed based on the principles of the RPF for NaMSIP which was prepared based on the Kenyan Laws and the World Bank Involuntary Resettlement OP 4.12 to ensure that the project affected persons (PAPs) of the RSIP will not be negatively affected and if so, there are proper measures to mitigate those impacts. To this end the main objectives of this RAP in accordance with the RPF are: a) Minimize involuntarily taking of the land and impact on livelihoods through modification in design as much as possible; and b) If there are some impacts, as it is the case of this RSIP, then put mechanisms in place under this RAP to assist the PAPs in their efforts to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre-project level. GUIDING PRINCIPLES FOR THE RAP The RAP has been prepared in full compliance with the RPF prepared for the NaMSIP and as such the implementer of the RAP, will adhere to the following guiding principles as outlined in the RPF. 1. Involuntary resettlement and land acquisition will be avoided where feasible, or minimized, where it cannot be eliminated. 2. Where involuntary resettlement and land acquisition are unavoidable, resettlement and compensation activities will be conceived and executed as sustainable development programs, providing resources to give PAPs the opportunity to share project benefits. 3. PAPs will be meaningfully consulted and will participate in planning and implementing of RSIP. 4. PAPs will be assisted in their efforts to ideally improve their livelihoods and standards of living or at least to restore them, in real terms, to pre-displacement levels or levels prevailing prior to the beginning of the project implementation, whichever is higher. 5. Measures to address resettlement will ensure that project affected people are informed about their options and rights pertaining to resettlement, are included in the consultation process and given the opportunity to participate in the selection of technically and economically feasible alternatives. They will also be provided prompt and effective compensation at full replacement cost for losses of assets and access attributable to the project investments. 32

33 RSIP-Resettlement Action Plan Action Plan 6. Projected affected persons if resettled will be supported to integrate economically and socially into host communities so that adverse impacts on host communities and vice versa are minimized. To this end, appropriate patterns of social organization will be promoted and existing social and cultural institutions of PAPs supported to the greatest extent possible. 7. This RAP applies to all PAPs regardless of the total number affected, the severity of the impact and whether or not they have legal title to the land. Informal or customary tenure is to be treated in the same manner as formal, legal titles. 8. All PAPs will be (have to be) identified and recorded as early as possible, preferably at project investment identification stage, in order to protect those affected by the project and prevent an influx of illegal encroachers, squatters, and other non-residents who will wish to take advantage of such benefit. 9. Particular attention will be paid to the needs of vulnerable groups among those displaced; especially those below the poverty line, the landless, the elderly, women and children, orphans, marginalized groups and the ethnic minorities or other displaced persons who may not be protected through the Kenyan laws. The objective is to provide whatever additional assistance may be necessary to restore pre-project living standards. 10. The compensation of the PAPs must be completed prior to the implementation of RSIP. Steps Undertaken During RAP Preparation 1. Analyzing and evaluating of potential project impacts through identification of the PAPs, estimating their number and evaluating the impacts of the project on them through the census and socioeconomic study undertaken for the preparation of the RAP. 2. Identifying all categories and number of project affected persons (PAPs) regardless of land ownership status. 3. Taking an inventory of the affected assets and livelihood activities. 4. Preparing the inventory list of the potential project affected persons. This list include land owners, quarry operators, stone cutters, stone dressers, loaders, farmers, vulnerable groups, locations on the map and photos of the affected structures; 5. Conducting a socio- economic survey of the Project Affected Persons (PAPs) using a semi-structured household questionnaire. The questionnaire covered the households baseline information on incomes and expenditures, occupational and livelihood pattern, use of resources, arrangements for use of common property, social organization, leadership patterns, community organizations, and cultural parameters; 6. Collecting and reviewing relevant Kenyan laws and regulations for compensations and resettlement and comparing the same with World Bank safeguard policy OP 4.12 on Involuntary resettlement and proposing measures to bridge the gaps; 7. Adapting the Grievance Mechanism (GM) in the RPF to ensure affordable and accessible procedures for grievances address mechanisms for third party settlement of disputes arising from resettlement including judicial resources and, community and traditional settlement mechanism; 8. Assessing the appropriate organizational framework for implementing resettlement including identification of agencies responsible for delivery of resettlement measures 33

34 RSIP-Resettlement Action Plan Action Plan and provision of services, to ensure appropriate coordination between agencies and sub County government involved in implementation of the project and the RAP; 9. Developing an implementation schedule covering all resettlement activities from preparation through implementation including target dates for the achievement of expected benefits to those who need to be resettled; 10. Costing and budgeting for all RAP related activities including among others, land acquisition costs, livelihood restoration costs of the PAPs, assistance to vulnerable groups, etc.; 11. Recommending compensation and livelihood assistance programmes for the PAPs as well as developing the entitlement matrix, livelihoods restoration options and proposed livelihood programs for vulnerable groups; 12. In accordance with the RPF, elaborating monitoring plan of resettlement activities which will be undertaken by the implementing agency, supplemented by independent monitors as considered appropriate to ensure complete and objective information collection on the RAP implementation and the outcome for resettlement activities. 34

35 3 SOCIO-ECONOMIC BASELINE CONDITIONS RSIP-Resettlement Action Plan Action Plan The following sections provide a summary of methodology and results used to characterize socio-economic baseline conditions in the project area prior to significant project investment. 3.1 Summary of Survey Methodology Data used to establish socio-economic baseline conditions were derived from field surveys conducted in the project area during the preparation of the ESIA and RAP. There were two broad data objectives for the socio-economic baseline assessment. 1. Establish a robust characterization of general pre-project socio-economic conditions against which future changes can be measured, and 2. Enable the following key issues to be addressed during project implementation: Issue No. 1: Physical and economic displacement of PAPs from the proposed sewerage treatment plant site; and trunk sewer lines Issue No. 2: Loss of areas/fields used for stone quarrying, residential housing, commercial enterprises, and cultivation) due to exclusion from accessing the affected areas. Issue No. 3: Effects from an influx of migrants to the area, anticipated as a public response to perceived economic opportunity, leading to a number of issues including the following: Inflation and resulting social tension due to economic disparities Increased social pathologies such as crime and prostitution Decreased access to existing services and infrastructure Issue No. 4: Increased risk of STDs including HIV/AIDS as a result of increased movement through the project area, especially from truck traffic during the construction. Issue No. 5: Economic marginalization of resident population if skilled labor and professional positions are assigned to a bettereducated group of non-residents. The fieldwork effort was carried out by a team of social scientists under the direction of the Team Leader (Tito Kodiaga). The survey team employed the following methods: 35

36 RSIP-Resettlement Action Plan Action Plan Quantitative household survey Participatory Rural Appraisal (PRA) Focus Group Discussions Key-Informant Interviews Applying this suite of methods assures that several distinct perspectives are offered on the socioeconomic conditions in the RSIP project area and that a mix of both qualitative and quantitative results is produced. All villages in the project site were included in the baseline survey. In each of these villages all households were identified and a random sub-sample was chosen for in-depth interview. 3.2 Overview of the Socio-Economic Study Area The proposed RSIP is located within Ruiru Town in Thika District, Kiambu County of Kenya. Located within three kilometers of Nairobi's city boundary, Ruiru is a dormitory town for the nation's capital, and is connected by both rail and road to the Capital City. The town covers an area of 292 km2, and is surrounded by numerous coffee plantations. Ruiru Town is located on the 0.5 N Latitude and 37 E Longitude lines. The town stands on the Nairobi-Thika highway, which is a section of A2 Nairobi-Addis Ababa trunk road. It is situated 16 km North-East of Nairobi town and it borders Nairobi City. The major roads crossing through the town are Nairobi-Thika highway, Kenyatta highway joining Kiambu Municipality and Ruiru Municipality and Kwa Maiko road joining Ruiru and Githunguri. GPS coordinates of the proposed project site are (280254E N). The site is relatively ideal for setting up a treatment facility as the land was set-aside in the 1990s by Ruiru Municipal Council for construction of sewerage system for Ruiru Town. 3.4 Demographics The total population in the project areas where economic and physical displacement is expected has been estimated during this baseline study at 419 people. Of all the respondents, 60.9% were male while 38.1% female with majority of the respondents being of ages between years old. Majority of the sample households (97%) were male-headed while 3% were female-headed with a mean age of 50 years. The main occupation for the household heads was quarrying followed by farming, while 3% were selfemployed off-farm. 36

37 RSIP-Resettlement Action Plan Action Plan Table 6. Distribution Based On the Gender of the Respondents Category Frequency Percentage Male Female No Response 4 1 Total Table 7. Relationship between the Age and Gender of the Respondents Age Gender of the respondent Total Male Female No Response Below 20 Years F % to 30 Years F % to 40 Years F % to 50 Years F % to 60 Years F % to 70 Years F % to 80 Years F % Years F % No Response F % Total N %

38 RSIP-Resettlement Action Plan Action Plan Figure 1. Distribution Based On the Age of the Respondents No Response 42 (10%) 80 Years 1 (0.2%) 71 to 80 Years 61 to 70 Years 20 (4.8%) 31 (7.4%) 51 to 60 Years 66 (15.8%) 41to 50 Years 31to 40 Years 91 (21.7%) 102 (24.3%) 21 to 30 Years 64 (15.3%) Below 20 Years 2 (0.5%) Over 28% of the household heads have attained primary level education and almost 77% can read and write with more males able to read and write than their female counterparts. Figure 2. Educational Level of the Household Head No response Others Completed Technical training Completed Secondary Education Did not complete Secondary Education Completed Primary Education Did not complete Primary Education Without Education 11.7% 0.5% 2.1% 16.9% 11% 28.6% 22% 7.2% 0% 5% 10% 15% 20% 25% 30% 38

39 RSIP-Resettlement Action Plan Action Plan Figure 3. Household Heads Who Can Read or Write Yes No No response 323, (77 %) 55, (13%) 41, (10%) Table 8. Household Heads Who Can Read or Write By Gender Can read and/write Gender of the respondent Total Male Female No Response Yes f % No f % No response f % Total n % The households had an average of 6.4 members, with a mean of 1.84 adult males and 1.88 adult females. 80% of the household heads are married and living together with their spouses, 3% are married but the spouses live away, 7% are widows/widowers, 9% have never been married and 1% are separated. Within the community, only a portion of 45.3 % is in the age category that is able to work (18-55 years) while 46.7% of the PAPs are under 17 years old. 3.5 Livelihoods Livelihoods in the proposed project area were characterized through data obtained in questionnaires, the PRA and village interviews. Overview The main economic activity for the populations is working in the quarry, with over 53.2% of households engaging in this form of activity. Farming 13.5%, which occurs mostly in the riverbeds, is another primary occupation of the PAPs. The 39

40 RSIP-Resettlement Action Plan Action Plan population does not engage intensively in secondary activities particularly to provide income. Table 9. Primary Occupation of the Respondents Primary occupation of the respondents Frequency Percent Farmer Builder Craftsman/woman Civil servant Housewife Breaking ballast/quarry Business Casual jobs Journalist No response Total Table 10. Secondary Occupation of the Respondents Secondary Occupation Frequency Percent Farmer Animal breeder Business Casual jobs Stone breaking No response Total Agriculture Agriculture is based on a variety of different crops including maize and beans, bananas and peas. Market garden crops such as sweet potatoes, irish potatoes, tomatoes and various leafy vegetables are prevalent in the area. Farmers in the study area have diversified their production evidenced by different crop enterprises within the same piece of land where they practiced mixed cropping, as monocrops or intercrops. Beans and maize production were the most common enterprises for majority of the households practicing farming, while sweet potatoes and irish potatoes were the third and fourth respectively. Land Tenure Sewerage Treatment Plant Area The results of the survey indicate that the Ruiru Municipal Council, which has allocated the land for the construction of the sewerage treatment plant at no cost 40

41 RSIP-Resettlement Action Plan Action Plan since it is a government owned land, owns the proposed site for the sewerage treatment plant, which is Ha. However, the proposed site has been encroached by residents from the surrounding areas of Juja and Thika Town and is currently used as a quarrying site with the locals mining stones for building construction for sale and have been doing so for the last years. Infrastructure for Sewerage Trunk lines Membley Estate Route This sewerage trunk line aimed to serve Membley Estate will be laid along the Kamiti River and will be approximately 4 Kms before it joins with the Sukari Ranch trunk line. Land tenureship along Kamiti River is titled even though it is riparian land contrary to the Water Act. All the 18 PAPs who have land along the riparian where the sewerage trunk line will traverse have legal title and in essence formally hold the land. Infrastructure for Sewerage Trunk lines Ruiru River Route This sewerage trunk line that will run along the Ruiru River is approximately 9.82 Kms and will serve the Ruiru Town and drain into the sewerage treatment plant. The land targeted for this line is within the 30m riparian reserve land and thus the PAPs do not own any form of title for this land. Infrastructure for Sewerage Trunk lines Kahawa Sukari Ranch Route Land targeted for constructing the sewerage line from Membley to the Eastern By pass is owned by the Sukari Ranch and has official and legal tenure ship. Infrastructure for Sewerage Trunk lines By Pass Route The sewerage trunk line that will connect from the line in Sukari Ranch and will run along a normal drainage for approximately 4.6 Kms and drain directly into the sewerage treatment plant that is located in Kibendera village. Cropping Systems Land especially within the riparian reserve in much of the project area i.e. along the riverbeds where cultivation of crops occurs especially along the Ruiru riverbed is considered to be rich but particularly prone to erosion. The same plot has frequently been used for as many as years. A large part of the riverbeds are farmland. Animal traction is not used at all instead hand held hoes are the common implements used for cultivation. Agricultural Income Data on income derived from agricultural sales is difficult to obtain because farmers will typically sell their products right after harvest to buy medicine or other items of immediate necessity. On average, agriculture provided 3.1% of 41

42 RSIP-Resettlement Action Plan Action Plan income for populations in the study area with quarrying activities representing the most form of income at 63%. Formal Employment Approximately 10% of the population has a salaried job, but not necessarily with regular pay. Employment typically consists of jobs in the civil service, teaching positions and health care work. There are many job seekers in the area and casual labourers who mostly work in the quarries in the project site. Those that currently have no employment had expressed interest in working for RSIP during the construction phases and thus, counted themselves as job seekers in the household survey. Secondary activities Secondary economic activities in the project site is not common making and include casual labour, farming and businesses. Income Sources Quarrying of stones is the most important source of income accounting for 67.2% of the PAPs households income sources as shown in the table below. This is followed by sales of agricultural products especially from the PAPs who are cultivating along the riverbeds. Figure 5. Income source in the project site No response Loader Casual jobs Business Breaking ballast/quarry Family or firends Civil service Construction Handicraft Agriculture 0.2% 0.2% 2.4% 6.9% 0.2% 0.2% 4.5% 1% 7.6% 76.6% 0% 10% 20% 30% 40% 50% 60% 70% 80% Table 11. Sources of cash income for household Primary occupations Frequency Percentage Breaking ballast/quarry Business Casual jobs Farming Loader

43 RSIP-Resettlement Action Plan Action Plan No response Total Incomes and Expenditures Obtaining data for income and expenditures for a society essentially based on subsistence and barter is very difficult. The table below shows the income ranges of the PAPs for the household head with 63% earning over 100,000 annually, which is about 8,256 Kshs per month, but income figures are unevenly distributed. Female-headed households have the smallest incomes. Table 12. Annual Income of Household (Main Income for Head of Household) Amount (Kshs) Frequency Percentage Below 1, to 5, ,001 to 10, ,001 to 15, ,001 to 20, ,001 to 30, ,001 to 40, ,001 to 50, , 001 to 100, Above 100, No response Total Table 13. Annual Income of Household (Spouse) Amount (Kshs) Frequency Percentage 5,001 to 10, ,001 to 15, ,001 to 30, ,001 to 50, , 001 to 100, Above 100, No response Total The average yearly expenditure is 63,240 Ksh, but varied greatly among the population. The median is approximately 44,132 Ksh, which includes 10% who indicated that they had no expenditures at all during the period concerned. 43

44 RSIP-Resettlement Action Plan Action Plan Health expenditures are about 2% of income in the project area with none of the PAPs having any form of medical insurance apart from the PAPs in the affluent Membley Estate. Education costs per year were less than 7% of total expenditures. Other expenditures include purchases of necessary items such as salt, soap, candles and payments for contract labor. About 0.15% of annual income is spent on seed and fertilizer. Very small amounts are spent on ceremonial costs such as weddings, funerals and providing assistance to relatives. Sources of loans are very limited, especially, where 60% had no one from whom they could borrow money. When in need, many people sell their possessions, such as bicycles, livestock, or clothing; and then take on agricultural labor jobs to repurchase these items. The most common household equipment is a mobile phone 76.4% followed by radio (60.6%), bicycle (32%), television (27.9%). Others are motorcycle, cars, and generator in that order. Table 14. Type of Household Equipment Household equipment Yes No No Response Total F % F % F % n % Bicycle Motorcycle Truck Car Canoe Boat Mobile Tractor Water pump Radio Television Generator Mosquito nets Access to Public Services Water and Sanitation Supply Household water in the project site and in the affected villages is largely taken from the nearby Ruiru River and other unprotected sources (54.2%). In general the quality of water used for household purposes in the project area is extremely poor. 79.4% of the households use pit latrines without septic tanks as toilets Table 15. Access to Drinking Water 44

45 RSIP-Resettlement Action Plan Action Plan Access to drinking water Yes No No Response Total F % F % F % n % Traditional well at home Borehole at home House with a water tap Access to public water taps outside the house Access to water sources or borehole outside the house Access to surface water Rain water River Water Table 16. Access to Sanitary Facilities Sanitary facilities Yes No No Response Total F % F % F % n % Flush toilets in the house Latrine with septic tanks Latrine without septic tanks Public toilet outside the house None Energy The PAPs use kerosene mostly for lighting as shown in the table below (60.6%) followed by electricity from the natural grid at 19.3%. Firewood and charcoal are the most used forms of energy for cooking 47% and 25% followed by paraffin and gas and finally electricity in that order. Table 17. Type of Lighting in Households Type of lighting Yes No No Response Total F % F % F % n % Electricity (Public utility) Electricity (Power generator) Kerosene lamp/lantern Wood Candle None Others

46 RSIP-Resettlement Action Plan Action Plan Table 18. Type of Cooking Energy in Households Type of lighting Yes No No Response Total F % f % F % n % Electricity Paraffin Charcoal Gas Firewood Other Health Services Health authorities indicated that HIV/AIDS is visible; it manifests through other diseases, such as tuberculosis, AIDS may not be recognized as an underlying cause. There is a relatively low prevalence of Sexually Transmitted Diseases (STDs); high-risk behavior was described as uncommon, suggesting that HIV/AIDS is unlikely to become a highly significant issue for the RSIP project. Of all visits to health centers 7% are related to malaria, followed by diarrhea (67%) and STDs (10%). Over 85% of families surveyed have a mosquito net. AIDS Awareness The results of a focused survey on AIDS awareness reveal that most people in the area know about AIDS and are aware of its possible causes. As a method against HIV infection, the most common suggestion was fidelity to one s spouse, use of protection and abstinence. 3.8 Opinions and Expectations Related With RSIP The Participatory Rural Appraisal (PRA) and Focus Group Discussions (FGD) included a number of questions and elements directed at assessing public opinions and expectations for the RSIP. Additional, significant input was also received through the public consultation exercise conducted as part of ESIA conducted in Feedback from all of these sources was incorporated into a detailed Issues and Response report used during the ESIA scoping phase, and was included in a public consultation report that was submitted as part of ESIA. In summary however, it can be stated that individual expectations of the project relate with employment to an overwhelming degree. PAPs also expected that they would be provided with free connection to the sewer trunk lines once they are constructed. Approximately 75% of the population answered directly that they did not fear anything about the project. However, majority of the population expressed 46

47 RSIP-Resettlement Action Plan Action Plan concerns about loss of income from quarrying activities as a result of the proposed project. Compensation: One of the major concerns of the households was whether there would be compensation for loss of income by the project. There are 60 households with residential structures located within the sewerage treatment plant area. Majority of the PAPs who had structures, fields for agriculture or commercial enterprise in the sewerage waste disposal plant site and along the riverbeds where the trunk lines are to be located preferred cash compensation as shown in the tables and figures below. Table 19. Type of compensation preferred incase of displacement from Residence Type of compensation preferred Frequency Percent Resettlement by the project in a new place of residence Resettlement by the project in a new place of residence outside of the project area Cash compensation for loss of residence No response Total Table 20. Type of Compensation Preferred due to displacement from Agricultural Fields Type of compensation preferred Frequency Percentage Construction of infrastructure by the project making it possible to maintain farming on current agricultural lands Replacement fields on new agricultural lands Monetary compensation for the value of part of agricultural plots lost to the project No response Total Awareness of the RSIP 84% of the PAPs interviewed are aware of the Ruiru Sewerage Infrastructure Project as is shown in the figure below. 47

48 RSIP-Resettlement Action Plan Action Plan Figure 6: Awareness of Ruiru Sewerage Project 100% 80% 60% 352 (84%) 40% 20% 6 (1.4%) 61 (14.6%) 0% Yes No No response Awareness that land could be affected: Over 75% of the PAPs interviewed were aware that the land where they were conducting their activities especially in the proposed site for he waste water treatment plant would be acquired as a result of the project as is shown in the figure below. Figure 7. % of PAPs aware that land will be affected Yes No No response 22.4% 2.6% 74.9% Source of Information about the Project The PAPs have been aware about the proposed project for a very long time and mentioned the following as sources where they derived information about the project namely; - 1) Local Authorities 2) National Government 3) Neighbors 4) Family Members 48

49 RSIP-Resettlement Action Plan Action Plan Figure 8. Main Source of Information about RSIP No response Others Local authorities National or regional Government Neighbors Members of your family 16% 0.7% 9.1% 5% 0.2% 69% 0% 10% 20% 30% 40% 50% 60% 70% 49

50 4 LEGAL AND REGULATORY FRAMEWORK RSIP-Resettlement Action Plan Action Plan The chapter sets out the legal operating environment for acquisition of land as anticipated in the implementation of the RSIP. The chapter highlights major issues related to Kenyan land legislation with regards to involuntary resettlement in this RAP. It provides a brief overview of the Kenya land policy, and the Kenya s constitutional provisions related to land use, planning, acquisition, management and tenure, and more specifically the legislations related with land expropriation or acquisition, land valuation and land replacement. The chapter also compares the Kenyan legislation with the World Bank provisions on resettlement, highlighting gaps and making recommendations to fill up gaps. Table 21 below summarizes the relevant legal framework in Kenya applicable to this project in regard to resettlement. Table 21. Summary of relevant resettlement legal statutes applicable to RSIP Legal Framework Functional Relationship to Resettlement Constitution of Kenya 2010 The Land Act 2012 Laws of Kenya Land Registration Act, 2012 National Land Commission Act 2012 The Land Adjudication Act Chapter 95 Laws of Kenya The Valuers Act 532 Constitution of Kenya 2010 recognizes individuals right to acquire and own property provided they are citizens of the country in article 40. However, Article 66 of the same Constitution provides for the State to regulate the manner in which these rights may be curtailed for the benefit of the general public. Article 47 of the Constitution provides for administrative action to override the individual rights but the victim has to be given written reason for the action taken that undermines the right. It is the substantive law governing land in Kenya and provides legal regime over administration of public and private lands. It also provides for the acquisition of land for public benefit. The government has the powers under this Act to acquire land for projects, which are intended to benefit the general public. The projects requiring resettlement are under the provision of this Act. The law provides for the registration of absolute proprietorship interests over land (exclusive rights) that has been adjudicated or any other leasehold ownership interest on the land. Such land can be acquired by the state under the Land Act 2012 in the project area. The act establishes the National Land Commission with the purpose of managing public land and carrying out compulsory acquisition of land for specified public purposes. Provides for ascertainment of interests prior to land registrations under the Land Registration Act 2012 through an adjudication committee that works in liaison with adjudication officers. The act establishes valuers registration board, which has the responsibility of regulating the activities and conduct of registered 50

51 RSIP-Resettlement Action Plan Action Plan valuers in accordance with the provision of the act. THE NATIONAL LAND POLICY The National Land Policy ( NLP or Policy ) 3 was adopted in August 2009 with the aim of providing an overall framework for new legislation and defining key measures required to address critical issues such as land administration, access to land, land use, and restitution related to historical injustices and an outdated legal framework. The NLP addresses constitutional issues such as compulsory acquisition and development control. 4 Section 45 of the NLP defines compulsory acquisition as the power of the State to extinguish or acquire any title or other interest in land for a public purpose, subject to prompt payment of compensation. 5 Under the current Constitution, 6 the Land Act 2012 empowers the National Land Commission (under the guidance of Minister for Lands) to exercise the power of compulsory acquisition on behalf of the State. 7 Similarly, the NLP empowers the National Land Commission to compulsorily acquire land. 8 According to the NLP, the exercise of compulsory acquisition in the past has been conducted with abuses and irregularities. 9 The NLP therefore calls for a revision of such power and requires the GoK: To review the law on compulsory acquisition to align it with the new categories of land ownership (public, private and community land); 10 To harmonize the framework for compulsory acquisition to avoid overlapping mandates; 11 To establish compulsory acquisition criteria, processes and procedures that are efficient, transparent and accountable; 12 To institute legal and administrative mechanisms for the exercise of the power of compulsory acquisition by the State through the National Land Commission; 13 and 3 Sessional Paper No. 3 of 2009 on National Land Policy (referred to as the National Land Policy in this report) was adopted in August 2009 by the Ministry of Lands. Available at accessed May 25, Development control is the power of the State to regulate the property rights in urban and rural areas and is derived from the State s responsibility to ensure that the use of land promotes the public interest. 5 Sessional Paper No. 3 of 2009 on National Land Policy, The Constitution of Kenya, 1963, was replaced in Land Act, 6, Sessional Paper No. 3 of 2009 on National Land Policy. 233(d). 9 Id. at Chapter , article Id. at Chapter , article. 47(a). 11 Id. at Chapter , article. 46 and 47(b). Under the previous Constitution, Chapter IX (Trust Land), Art. 18, the President and local authorities had the power to set apart Trust Land for the purposes of the Government of Kenya or any corporate body established by an Act of Parliament, or companies which shares are held on behalf of the GoK and for extraction of minerals and oils. This power does not exist under the new Constitution. Under the Government Lands Act, the President has special powers with regards to government land, and he may exercise these powers through the Commissioner of Lands. (Government Lands Act, Chapter 280, 3.) 12 Sessional Paper No. 3 of 2009 on National Land Policy, Chapter , 47(c). 51

52 RSIP-Resettlement Action Plan Action Plan To confer pre-emptive rights on the original owners or their successor in title where the public purpose or interest justifying the compulsory acquisition fails or ceases. 14 The Constitution of Kenya The Constitution of Kenya, 2010, 15 protects the sanctity of private property rights and states that no property can be compulsorily acquired by the Government except in accordance with law. 16 Article 40(3) states: The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that (i) Requires prompt payment in full, of just compensation to the person; and (ii) Allows any person who has an interest in or right over, that property a right of access to a court of law. 17 The Constitution empowers the state to exercise the authority of compulsory acquisition. Land Act 2012 (LA) designates the National Land Commission (NLC) as the agency empowered to compulsorily acquire land. 18 Article 40 of the Constitution provides that the state may deprive owners of property only if the deprivation is "for a public purpose or in the public interest," which includes public buildings, roads, way leaves, drainage, irrigation canals among others. The state's exercise of this power is left at the discretion of NLC, and requires the state to make full and prompt payment of "just compensation" and an opportunity for appeal to court. Article 40(3)(a) refers to acquisition and conversion of all kinds of land in Kenya (private, public, community land and foreign interests in land). The Constitution further provides that payment of compensation shall be made to occupants in good faith of land acquired by the state who do not hold title for such land. 19 An occupant in good faith is a bona fide occupant. On the other hand, under the Constitution, those who have acquired land illegally are not regarded as deserving any compensation Id. at Chapter , p. 47(d). 14 Id. at Chapter , 47(e). 15 The Constitution of Kenya, 2010, was adopted by the Government of Kenya on 27 August The full text is available at accessed May 25, Constitution of Kenya, art Id. 18 The Land Act, 2012 The Government of Kenya, Section Constitution of Kenya. Id. at art. 40(5). 20 Constitution of Kenya. Id. at art. 40(3). 52

53 RSIP-Resettlement Action Plan Action Plan In addition to Article 40, Chapter Five of the Constitution is relevant to compulsory acquisition. This chapter, entitled "Land and Environment," is divided into two parts. Part 1 deals with land, and Part 2 deals with environment and natural resources. Part 1 of Chapter 5, articles 60 68, describes the principles of land policy. Land should be held, used and managed in a manner that is equitable, efficient, productive and sustainable and in accordance with security of land rights, sound conservation and protection of ecologically sensitive areas. 21 These principles must be implemented through a national land policy reviewed regularly by the national government and through legislation. 22 Land Tenure System in Kenya Land tenure in Kenya is classified as public, community or private. 23 Public land consists of government forests (other than those lawfully held, managed or used by specific communities as community forest, grazing areas or shrines 24 ), government game reserves, water catchment areas, national parks, government animal sanctuaries and specially protected areas. 25 Public land will be managed by the National Land Commission. 26 Community land includes land that is lawfully held, managed or used by specific communities as community forest, grazing areas or shrines, and ancestral lands and lands traditionally occupied by hunter-gatherer communities. 27 Rights are also held through traditional African systems, and rights that derive from the English system introduced and maintained through laws enacted by colonial and then the national parliament. The former is loosely known as customary tenure bound through traditional rules (customary law). The latter body of law is referred to as statutory tenure, secured and expressed through national law, in various Act of parliament e.g. Land Act 2012, Land Registration Act, 2012, Trust Land Act (cap 288) of the Laws of Kenya). Customary Land Tenure This refers to unwritten land ownership practices by certain communities under customary law. Kenya being a diverse country in terms of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agricultural practices, climatic conditions and cultural practices. However most customary tenure systems exhibit number of similar characteristics as follows: First, individuals or groups by virtue of their membership in some social unit of production or political community have guaranteed rights of access to land and other natural resources. Individuals or families thus claim property rights by virtue of their affiliation to the group. 21 Id. at art Id. at art. 60(2). 23 Id. at art Id. at art. 63(d)(i). 25 Id. at art. 62(g). 26 Id. at arts. 62(3), 67(2)s (a). 27 Id. at art. 63(d)(i) and (ii). 53

54 RSIP-Resettlement Action Plan Action Plan Freehold Tenure This tenure confers the greatest interest in land called absolute right of ownership or possession of land for an indefinite period of time, or in perpetuity. Freehold land is governed by the Land Registration Act, The Act provides that the registration of a person as the proprietor of the land vests in that person the absolute ownership of that land together with all rights, privileges relating thereto. A freehold title generally has no restriction as to the use and occupation but in practice there are conditional freeholds, which restrict the use for say agricultural or ranching purposes only. Land individualization was demanded by the colonial settlers who required legal guarantee for the private ownership of land without which they were reluctant to invest. Leasehold Tenure Leasehold is an interest in land for a definite term of years and may be granted by a freeholder usually subject to the payment of a fee or rent and is subject also to certain conditions which must be observed e.g. relating to developments and usage. Leases are also granted by the government for government land, the local authorities for trust land and by individuals or organizations owning freehold land. The maximum term of government leases granted in Kenya is 99 years for agricultural land and urban plots. There are few cases of 33 years leases granted by government in respect of urban trust lands. The local authorities have granted leases for 50 and 30 years as appropriate. Public Tenure This is where land owned by the Government for her own purpose and which includes unutilized or un-alienated government land reserved for future use by the Government itself or may be available to the general public for various uses. The land is administered under the Land Act 2012 (LA). These lands were vested in the president and who has, normally exercised this power through the Commissioner of Lands, to allocate or make grants of any estates, interests or rights in or over un-alienated government land. However the new constitution grants those rights to the National Land Commission (NLC) which is governed by the National Land Commission Act, 2012 that specifies the role of NLC as: To identify public land, prepare and keep a database of all public land, which shall be georeferenced and authenticated by the statutory body responsible for survey; Evaluate all parcels of public land based on land capability classification, land resources mapping consideration, overall potential for use, and resource evaluation data for land use planning; and Acquire land for public purposes Solve land disputes and deal with historical land injustices Share data with the public and relevant institutions in order to discharge their respective functions and powers under this Act; or 54

55 RSIP-Resettlement Action Plan Action Plan May require the land to be used for specified purposes and subject to such conditions, covenants, encumbrances or reservations as are specified in the relevant order or other instrument 28. Categories of government land include forest reserves, other government reserves, alienated and un-alienated government land, national parks, townships and other urban centers and open water bodies. The Lands Act does not contain any notion of trusteeship by government of the land to her people. Public Resources on Public Land Notwithstanding the fore going, it is a common law doctrine to the effect that common property resources such as rivers, forests and parks are held by the state in trust for the general public. Consequently, the state cannot alienate these resources or use them in a way detrimental to public interest. This is the doctrine that would ensure that public land cannot be alienated or committed to waste to the detriment of public interest. It is the case that the statutory frameworks for land ownership in Kenya is heavily influenced by common law jurisprudence on land ownership-the owner s rights includes the rights of use and abuse. In Kenya however, the development of physical planning legislation has vested in the state the cumulative rights of other landowners. The regulatory power is referred to as police power. Land Act, 2012 The Land Act 29 ( LA ) is the Kenya s framework legislation regulating compulsory acquisition of land (i.e. land, houses, easements etc.). The LA was adopted on 2 nd May 2012 and provides for sustainable administration and management of land and land based resources including compulsory acquisition. Land Acquisition Process Proof that compulsory possession is for public good It is very explicit in the Land Act, 2012, Section 107, that whenever the national or county government is satisfied that it may be necessary to acquire some particular land under section 110 of Land Act 2012, the possession of the land must be necessary for public purpose or public interest, such as, in the interests of public defence, public safety, public order, public morality, public health, urban and planning, or the development or utilization of any property in such manner as to promote the public benefit. Irrigation and drainage are explicitly identified as qualifying for land acquisition as public utility and the necessity therefore is such as to afford reasonable justification for the causing of any hardship that may result to any person having right over the property, and so certifies in writing, possession of such land may be taken. 28 National Land Commission Act, 2012, Section II, article 5(1) 29 Land Act,

56 RSIP-Resettlement Action Plan Action Plan Respective Government agency or cabinet must seek approval of NLC The respective Cabinet Secretary or Government agency or the County Executive Committee Member must submit a request for acquisition of private land to the NLC to acquire the land on its behalf. The Commission will prescribe a criteria and guidelines to be adhered to by the acquiring authorities in the acquisition of land. It is important to note that if the NLC is constituted prior to conclusion of land acquisition, it could prescribe criteria and guidelines necessitating variations or revisions to the current RAP. Similar, the Commission has powers to reject a request of an acquiring authority, to undertake an acquisition if it establishes that the request does not meet the requirements prescribed. Inspection of Land to be acquired NLC may physically ascertain or satisfy itself whether the intended land is suitable for the public purpose, which the applying authority intends to use as specified. If it certifies that indeed the land is required for public purpose, it shall express the satisfaction in writing and serve necessary notices to land owners and or approve the request made by acquiring authority intending to acquire land. Publication of notice of intention to acquire Upon approval, NLC shall publish a notice of intention to acquire the land in the Kenya Gazette and County Gazette. 30 It will then serve a copy of the notice to every person interested in the land and deposit the same copy to the Registrar 31 The courts have strictly interpreted this provision, requiring that the notice include the description of the land, indicate the public purpose for which the land is being acquired and state the name of the acquiring public body. 32 NLC shall ensure that the provisions are included in her notice. The Land Registrar shall then make entry in the master register on the intention to acquire as the office responsible for survey, at both national and county level, georeferences the land intended for acquisition. Serve the notice of inquiry Thirty days after the publication of the Notice of Intention to Acquire, NLC will schedule a hearing for public inquiry. NLC must publish notice of this meeting in the Kenya Gazette and County gazette 15 days before the inquiry meeting and serve the 30 The Kenya Gazette is the official government journal in Kenya published by the Government Printing Press. 31 Land Act, 2012, Government of Kenya Coastal Aquaculture Limited v. The Commissioner of Lands and Settlement and the Minister of Lands and Settlements. Mombasa H.C. Misc. Appl., No. 55 of 1994, accessed May 25, This ruling was upheld by the Court of Appeal. Coastal Aquaculture Limited v. the Commissioner of Lands and Settlement and the Minister of Lands and Settlements. Nairobi. No. 252 of 1996, accessed May 25,

57 RSIP-Resettlement Action Plan Action Plan notice on every person interested in the land to be acquired. Such notice must instruct owner of land to deliver to the NLC, no later than the date of the inquiry, a written claim for compensation. 33 Holding of a public hearing NLC then convenes a public hearing not earlier than 30 days after publication of the Notice of Intention to Acquire. On the date of the hearing, NLC must conduct a full inquiry to determine the number of individuals who have legitimate claims on the land, the land value and the amount of compensation payable to each legitimate claimant. 34 Besides, at the hearing, the Commission shall make full inquiry into and determine who are the persons interested in the land; and receive written claims of compensation from those interested in the land. For the purposes of an inquiry, the Commission shall have all the powers of the Court to summon and examine witnesses, including the persons interested in the land, to administer oaths and affirmations and to compel the production and delivery to the Commission (NLC) of documents of title to the land. The public body for whose purposes the land is being acquired, and every person interested in the land, is entitled to be heard, to produce evidence and to call and to question witnesses at an inquiry. It will also provide opportunity to land owners to hear the justification of the public authority in laying claims to acquire the land. Valuation of the land Part III of the Land Act 2012, section 113 (2a) states that the Commission shall determine the value of land with conclusive evidence of (i) the size of land to be acquired; (ii) the value, in the opinion of the Commission, of the land; (iii) the amount of compensation payable, whether the owners of land have or have not appeared at the inquiry. This can be interpreted that NLC must determine the value of the land accordingly and pay appropriate just compensation in accordance with the principles and formulae that it will develop. Nonetheless, just compensation 35 could also be interpreted as market rate. The final award on the value of the land shall be determined by NLC and shall not be invalidated by reason of discrepancy, which may be found to exist in the area. Matters to be considered in determining compensation: The market value of the property, which is determined at the date of the publication of the acquisition notice must be considered. 36 Determination of the 33 Land Act, 2012 (112). 34 Id. at article Schedule explaining just compensation has not been assessed and released by NLC. The Land Act 2012 say NLC should develop the schedule. 36 Id. at article 112 and article

58 RSIP-Resettlement Action Plan Action Plan value has to take into consideration the conditions of the title and the regulations that classify the land use e.g. agricultural, residential, commercial or industrial. Increased market value is disregarded when: It is accrued by improvements made within two years before the date of the publication of the acquisition notice, unless it is proved that such improvement was made in good faith and not in contemplation of the proceedings for compulsory acquisition. It is accrued by land use contrary to the law or detrimental to the health of the occupiers of the premises or public health. Any damages sustained or likely to be sustained by reason of severing such land from other land owned by the claimant. Any damage sustained or likely to be sustained if the acquisition of the land had negative effects on other property owned by the claimant. Reasonable expenses, if as a consequence of the acquisition, the claimant was compelled to change his residence or place of business (i.e., compensation for disruption to the claimant s life). Any damage from loss of profits over the land occurring between the date of the publication of the acquisition notice and the date the NLC takes possession of the land. 37 Matters not to be considered in determining compensation: The degree of urgency, which has led to the acquisition. Any disinclination of the person s interest to part with the land. Damages sustained by the claimant, which will not represent a good cause of action. Damages, which are likely to be caused to the land after the publication of the acquisition notice or as a consequence of the future, land use. Increased land value accrued by its future use. Any development at the time of acquisition notice, unless these improvements were necessary for maintaining the land. 38 Award of compensation The Land Act does not stipulate that compensation must be in the form of money only. Under the Land Act 2012 section 117, the State can award a grant of land in lieu of money compensation ( land for land ), provided the value of the land awarded does not exceed the value of the money compensation that would have been allowable. 39 The law could be interpreted that any dispossessed person shall 37 Schedule 2 governing compensation Schedule 3 governing compensation for compulsory acquisition. 39 Land Act,

59 RSIP-Resettlement Action Plan Action Plan be awarded the market value of the land. 40 The new law is silent on relocation support or disturbance allowance support. Upon the conclusion of the inquiry, and once the NLC has determined the amount of compensation, NLC will prepare and serves a written award of compensation to each legitimate claimant. 41 NLC will publish these awards, which will be considered final and conclusive evidence of the area of the land to be acquired, the value of the land and the amount payable as compensation. 42 Land Act, Section 115 further stipulates that an award shall not be invalidated by reason only of a discrepancy between the area specified in the award and the actual area of the land. Compensation cannot include attorney s fees, costs of obtaining advice, and costs incurred in preparing and submitting written claims. Payment of Compensation A notice of award and offer of compensation shall be served to each person by the Commission. Section 120 provides that first offer compensation shall be paid promptly to all persons interested in land. 43 Section 119 provides a different condition and states that the NLC as soon as practicable will pay such compensation. 44 Where such amount is not paid on or before the taking of the land, the NLC must pay interest on the awarded amount at the market rate yearly, calculated from the date the State takes possession until the date of the payment. 45 In cases of dispute, the Commission may at any time pay the amount of the compensation into a special compensation account held by the Commission, notifying owner of land accordingly. If the amount of any compensation awarded is not paid, the Commission shall on or before the taking of possession of the land, open a special account into which the Commission shall pay interest on the amount awarded at the rate prevailing bank rates from the time of taking possession until the time of payment. Transfer of Possession and Ownership to the State Once first offer payment has been awarded, the NLC will serves notice to landowners in the property indicating the date the Government will take possession. Upon taking possession of land, the commission shall ensure payment of just compensation in full. When this has been done, NLC removes the ownership of private land from the register of private ownership and the land is 40 Land Act, Schedule 41 Land Act, Land Act, Land Act, This language reflects the language of the Kenya Constitution, Land Act, Constitution of Kenya, article

60 RSIP-Resettlement Action Plan Action Plan vested in the national or county Government as public land free from any encumbrances. 46 On the other side also, the Commission has also the power to obtain temporary occupation of land. However, the commission shall as soon as is practicable, before taking possession, pay full and just compensation to all persons interested in the land. In cases of where there is an urgent necessity for the acquisition of land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures of compulsory acquisition under this Act, the Commission may take possession of uncultivated or pasture or arable land upon the expiration of fifteen days from the date of publication of the notice of intention to acquire. On the expiration of that time NLC shall, notwithstanding that no award has been made, take possession of that land. If the documents evidencing title to the land acquired have not been previously delivered, the Commission shall, in writing, require the person having possession of the documents of title to deliver them to the Registrar, and thereupon that person shall forthwith deliver the documents to the Registrar. On receipt of the documents of title, the Registrar shall cancel the title documents if the whole of the land comprised in the documents has been acquired; if only part of the land comprised in the documents has been acquired, the Registrar shall register the resultant parcels and cause to be issued, to the parties, title documents in respect of the resultant parcels. If the documents are not forthcoming, the Registrar will cause an entry to be made in the register recording the acquisition of the land under this Act. Opportunity for Appeal The Kenya Constitution establishes Environment and Land Court 47. Article 162 of the constitution provides for the creation of specialized courts to handle all matters on land and the environment. Such a court will have the status and powers of a High Court in every respect. Article 159 on the principles of judicial authority, indicates that courts will endeavor to encourage application of alternative dispute resolution mechanisms, including traditional ones, so long as they are consistent with the constitution. Section 20, of the Environment and Land Court Act, 2011 empowers the Environment and Land Court, on its own motion, or on application of the parties to a dispute, to direct the application of alternative dispute resolution (ADR), including traditional dispute resolution mechanisms. 46 Land Act, 115 and Land Act 2012, Section128 60

61 RSIP-Resettlement Action Plan Action Plan Any person whose land has been compulsorily acquired may petition the Environment and Land Court for redress with respect to: The determination of such person's right over the land; The amount offered in compensation; and The amount offered in compensation for damages for temporary dispossession in the case of the Government s withdrawal of its acquisition of the land. 48 Parties will pay fees as determined by Environment and Land Court or the court may choose to waive them completely or in part on grounds of financial hardship. 49 Children and Orphans Provision of Land Possession The Land Act 2012, Part III, section recognizes the capacity of a child as being capable of holding title to land. However this can only happen through a trustee and such a child shall be in the same position as an adult with regard to child s liability and obligation to the land. The Valuers Act Valuation of land is a critical aspect of compulsory acquisition practice and compensation. The National Land Commission based on land valuation determined by registered valuers will make compensation awards. Besides, the Valuers Act 51 establishes the Valuers Registration Board, which regulates the activities and practice of registered valuers. All valuers must be registered with the Board to practice in Kenya. The Board shall keep and maintain the names of registered valuers, which shall include the date of entry in the register; the address of the person registered the qualification of the person and any other relevant particular that the Board may find necessary. As of March 2011, there were 285 registered valuers in Kenya. 52 The Valuers Act does not provide for a description of the valuation procedures and methods. RSIP RAP team has made use of the services of registered valuers who are approved by Valuers Registration Board. Under the Valuers Act, professional misconduct of registered valuer will include: False or incorrect entry in the register; 48 Land Acquisition Act. at article 29(7). 49 Land Acquisition Act at article A child shall be capable of holding title to land through a trustee and such child be in the same position as an adult with regard to the child s liability and obligations to the land. 51 The Valuers Act, Chapter 532, accessed May 25, Government of Kenya, Kenya Gazette notice no. 2892, March 18, Registered and Practicing Valuers. 61

62 RSIP-Resettlement Action Plan Action Plan False or misleading statement caused by omission or suppression of a material fact; 53 and The acceptance of any professional valuation work which involves the giving or receiving of discounts or commissions. 54 In case of professional misconduct, the registered valuer is guilty of an offense punishable with a fine (not exceeding Ksh.10, 000) and/or imprisonment for three years. Fees for land valuation in case of compulsory acquisition are established based on the value of the property as the first Kshs 400,000 at 1 per cent. Residue at 0.5 per cent 55 and are paid by those who requested the valuation. Comparison of Kenya Land Laws & World Bank Table 22 outlines World Bank OP policy on involuntary resettlement and compares them to the Kenyan legislation on the same. Recommendations are made on the existing gaps of the Kenyan laws. 53 The Valuers Act, 24 and Legal Notice no Land Act 2012, article Legal Notice

63 Comparative Analysis of World Bank Op 4.12 & Kenyan Resettlement Laws Table 22: Comparative Analysis of World Bank OP 4.12 and Government of Kenya requirements including measures to address gaps OP 4.12 Kenyan Legislation Comparison Recommendation to Address Gap GENERAL REQUIREMENTS World Bank OP4.12 has overall policy objectives, requiring that: 1. Involuntary resettlement should be avoided wherever possible, or minimized, exploring all alternatives. 2. Resettlement programs should be sustainable, include meaningful consultation with affected parties, and provide benefits to the affected parties. 1. According to Kenyan Legislation, involuntary resettlement may occur as a result of projects implemented in public interest. 2. The Land Act, 2012 Act outlines procedures for sensitizing the affected population to the project and for consultation on implications and grievance procedures. 1. The Land Act does not stipulate that resettlement should be avoided wherever possible; on the contrary, as long as a project is for public interest, involuntary resettlement is considered to be inevitable. 2. Same as the World Bank 1. For RSIP RAP, ensure that resettlement issues are considered at the design stage of the project in order to avoid/ minimize resettlement. 3. Displaced persons should be assisted in improving livelihoods etc., or at least restoring them to previous levels. 3. The Land Act 2012 guarantees the right to fair and just compensation in case of relocation. 3. Just and fair compensation as outlined in the Land Act 2012 is not clear and can only be determined by NLC, which can be subjective. It is does not talk about improving livelihood or restoring them to pre-project status. Implement World Bank OP 4.12 policy - displaced should be assisted in improving their livelihood to preproject status.

64 RSIP-Resettlement Action Plan Action Plan OP 4.12 Kenyan Legislation Comparison Recommendation to Address Gap PROCESS REQUIREMENTS Consultation: Displaced persons should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs The Land Act outlines procedures for consultation with affected population by the NLC and grievance management procedures. Same as World Bank Implement consultation procedures as outlined in both Kenyan legislation and World Bank. Grievance: For physical resettlement, appropriate and accessible grievance mechanism will be established. Land Act 2012 clearly outline the steps and process for grievance redress that includes alternative dispute resolution, renegotiation with NLC and is backed by the judicial system through Environmental and Land Court Kenyan legislation meets OP4.12 requirements. N/A Eligibility Criteria Defined as: (a) those who have formal legal rights to land (including customary and traditional rights recognized under the laws of the country); (b) those who do not have formal legal rights to land at the time the census begins but have a claim to such land or assets provided that such claims are recognized under the laws of the country or become recognized through a process identified in the resettlement plan (see Annex 10 A, para. 7(f)); and19 The Land Act 2012 provides that written and unwritten official or customary land rights are recognized as valid land right. The Law provides that people eligible for compensation are those holding land tenure rights Land Act also recognizes those who have interest or some claim in the land such pastoralist or who use the land for their livelihood. The constitution recognizes occupants of land even if they do not have titles and payment made in good faith to those occupants of land. However, this does not include those who illegally acquired land Kenya s Land Law defines eligibility as both formal (legal) and informal (customary) owners of expropriated land. However, it does not specifically recognize all users of the land to be compensated. The constitution of Kenya on the other hand recognizes occupants of land who do not have title and who the state has an obligation to pay in good faith when compulsory acquisition is made. Ensure ALL users (including illegal squatters, laborers, rights of access) of affected lands are included in the census survey or are paid 64

65 RSIP-Resettlement Action Plan Action Plan OP 4.12 Kenyan Legislation Comparison Recommendation to Address Gap (c) those who have no recognizable legal right or claim to the land they are occupying To determine eligibility: Carry out resettlement census. Cut off date for eligibility is the day when the census begins. Land Act 2012 provides for census through NLC inspection and valuation process Same as World Bank Implement cut-off procedures as outlined in the RPF and Kenyan Law Measures: Preference should be given to land based resettlement strategies for displaced persons whose livelihoods are land-based. Cash based compensation should only be made where (a) land taken for the project is a small fraction of the affected asset and the residual is economically viable; (b) active markets for lost assets exist and there is sufficient supply of land and housing; or (c) livelihoods are not land-based. World Bank OP4.12 Article 6(a) requires that displaced persons are provided with prompt and effective compensation at full replacement cost for losses of assets attributable Legislation provides for land for land compensation but the Land Act 2012 does not state whether preference should granted to land to land compensation. Land Act 2012 appears to prefer mode of compensation by the Government to the affected population. Land Act talks of prompt, just compensation before the acquisition of land. However, interpretation of just compensation is yet to be clearly outlined through a specific schedule defining just Land for Land provided for in the Land Act based on agreement by the PAP. Cash based compensation seems to be the preferred mode of awarding compensation to the affected population by Government of Kenya Just compensation as stipulated in the Land Act not yet specifically defined. Ensure that all alternative options are considered before providing cash compensation Use World Bank OP4.12 procedures in determining form of compensation Implement prompt and effective compensation at full replacement cost for the losses of the assets. 65

66 RSIP-Resettlement Action Plan Action Plan OP 4.12 Kenyan Legislation Comparison Recommendation to Address Gap directly to the project. If physical relocation is an impact, displaced persons must be provided with assistance during relocation and residential housing, housing sites and/or agricultural sites to at least equivalent standards as the previous site. Replacement cost does not take depreciation into account. In terms of valuing assets, if the residual of the asset being taken is not economically viable, compensation and assistance must be provided as if the entire asset had been taken. compensation have not been put in place. Attorney s fees, cost of obtaining advice or cost incurred in preparing and making written claim not in the Land Act other than just compensation OP 4.12 provides related land transaction fees. Land Act not clear on this. Implement World Bank policy. Compensation and other assistance required for relocation should be determined prior to displacement, and preparation and provision of resettlement sites with adequate facilities, where required The Act is does not out rightly stipulate assistance for relocation but we can interpret that relocation cost will be included in just compensation. OP4.12 requires that displacement must not occur before all necessary measures for resettlement are in place, i.e., measures over and above simple compensation Ensure that ALL resettlement options are agreed on with PAPs and put in place BEFORE displacement of affected persons. Valuation: With regard to land and structures, replacement cost is defined as follows: For agricultural land, it is the preproject or pre-displacement, whichever is higher, market value of land of equal productive potential or Valuation is covered by the Land Act 2012 and stipulates, as already mentioned, that the affected person receive just compensation from NLC, as determined by National Land Commission. Valuers Act stipulates that a residual amount of 0.5% of the total valuation of an asset is expected to pay the valuer. Land Act 2012 talks of just compensation for the lost assets but it is not specific of Though one could argue that there is some form of consistency between the Kenyan Law and World Bank OP.4.12, interpretation of just compensation has not been defined. Interpretation of just compensation not clear Apply the World Bank OP4.12 valuation measures, as outlined in Section 6, in order to fully value all affected assets in a consistent manner. Apply World Bank OP4.12 on valuation and compensation measures. 66

67 RSIP-Resettlement Action Plan Action Plan OP 4.12 Kenyan Legislation Comparison Recommendation to Address Gap use located in the vicinity of the affected land, plus the cost of preparing the land to levels similar to those of the affected land, plus the cost of any registration and transfer taxes. the exact amount or procedures on the same. For houses and other structures, it is the market cost of the materials to build a replacement structure with an area and quality similar to or better than those of the affected structure, or to repair a partially affected structure, plus the cost of transporting building materials to the construction site, plus the cost of any labor and contractors fees, plus the cost of any registration and transfer taxes. The Land Act 2012 stipulates just compensation. Interpretation of just compensation not clear. Apply World Bank OP4.12 on valuation and compensation procedures. Monitor Adequate monitoring and evaluation of activities to be undertaken. According to Land Act can be undertaken County Land Boards. Both Kenyan Law and World Bank policy advocates for Monitoring and Evaluation Implement as prescribed in the World Bank OP4.12 and Kenyan Law. 67

68 RSIP-Resettlement Action Plan Action Plan Comparative Analysis of World Bank OP 4.12 & Kenya s Requirements Relevant to the Process Table : 23 Comparative Analysis of World Bank OP 4.12 and Kenya s requirements Relevant to the Process Category of PAPs and Type of Lost Assets Kenyan Law World Bank OP4.12 Land Owners Fair and just compensation which could be in form of cash compensation or Land for Land Recommends land-for-land compensation. Other compensation is at replacement cost Land Tenants Land Users Constitution says that occupants of land entitled to some level of pay in good faith. Land Act stipulates that they are entitled to some compensation based on the amount of rights they hold upon land under relevant laws. However, those who acquired land illegally not entitled to any. Land Act not clear on Land Users although in some cases they can receive some form of compensation depending on the determination by NLC PAPs are entitled to some form of compensation whatever the legal/illegal recognition of their occupancy. Entitled to compensation for crops and investments made on the land; livelihood must be restored to at least preproject levels. Owners of Temporary Buildings Owners of Permanent buildings The constitution of Kenyan respects the right to private property and in case of compulsory acquisition, just compensation must be granted to the owner for the loss temporary buildings. The constitution of Kenyan respects the right to private property and in case of compulsory acquisition, just compensation must be granted to the owner for the permanent building Entitled to in-kind compensation or cash compensation at full replacement cost including labor and relocation expenses, prior to displacement. Entitled to in-kind compensation or cash compensation at full replacement cost including labor and relocation expenses, prior to displacement. Perennial Crops Compensation for the loss of crops As per specifications of this RPF, once approved by the Bank and disclosed at the Bank info shop, 68

69 RSIP-Resettlement Action Plan Action Plan Quarry Workers/Casual Labourers Not specific on livelihood. The constitution says some pay maybe made in good faith Compensation and Livelihood restoration to predisplacement level. 69

70 RSIP Resettlement Action Plan Action Plan 5 PROJECT DISPLACEMENT IMPACTS 5.1 Minimizing Displacement and Social Impacts Efforts have been made to align the sewer lines, trunk lines, reticulation lines and canals along the existing river bed and within the 30m government owned riparian reserve land so as to avoid or minimize relocation and therefore resettlement and disturbances arising from land acquisition in line with the World Bank OP Similarly, the land identified for the construction of the sewerage treatment plant is government owned land a deliberate effort and action to avoid privately owned and settled land. Additional measures taken or steps to be taken to reduce impact include: Roads for earth moving equipment will be constructed along the earmarked main canal and/or existing tracks to limit social disturbances and destruction of the environment. All those that shall be affected by the project will be fully compensated before project commencement. 5.2 Impact on Land: The Project-Affected Area The proposed project will have minimal impact (insignificant) on land due to the fact that there will be no acquisition of land from PAPs at all for all components of the project. Land identified for the project is either owned by the government and in cases where tenure is private; the land sizes are insignificant in size and will furthermore entail easement and not full acquisition. Infrastructure for Sewerage Treatment Plant As already highlighted in other sections of this report, the land where the proposed sewerage treatment works will be located is owned by the Ruiru Municipal Council who have transferred the land to the Ruiru Juja Water Services Company (RUJWASCO) for the project at no cost. Annex 4 shows the documents that indicate land transfer between these institutions and approved by the Ministry of Lands. A total of Ha of land has been set aside for the wastewater treatment ponds and sewerage treatment plant. The land is however encroached by over 340 PAPs who have for over years been undertaking quarrying related activities at no cost to the Ruiru Municipal Council hence illegally inhabiting and or using the land for economic purposes. Infrastructure for Sewerage Trunk lines Membley Estate Route The sewerage trunk line that is expected to target the waste from Membley Estate and its environs including Kenyatta University is approximately 4 Kms and the 70

71 RSIP Resettlement Action Plan Action Plan proposed site for laying the trunk lines is along the Kamiti River on the 30 metre riparian reserve owned by the government. The sewer trunk line is a linear infrastructure and will require approximately 3 metres of land in terms of width. Even though the proposed land for constructing the sewer trunk line is along the government riparian land, which should not be privately owned, the survey found out that approximately 21 PAPs have been allocated land right up to and into the riparian area of River Kamiti and these PAPs own legal title deed. The RAP has proposed that the project acquires easements rights to use the land for the trunk sewer lines instead of purchasing the land in accordance with the Easement Act of Kenya since this is a cheaper alternative and less combative in nature bearing in mind that challenging the title of the PAPs on the basis of the land being a riparian reserve would potentially lead to a protracted legal tussle that may delay the implementation of the project. Infrastructure for Sewerage Trunk Lines Ruiru River Route This sewerage trunk line will be about 9.82 Kms and will begin from Ruiru Town along Ruiru River and will drain into the proposed sewerage treatment plant in Kibendera Village. The project intends to use the land demarcated as riparian reserve land (30 metres mark), which is in effect owned by the government, and as such, there will be no land acquisition other than compensation of PAPs for the crops that they have been cultivating along the riparian reserve. Infrastructure for Sewerage Trunk Lines Sukari Ranch/Brookside Route This trunk sewer line will connect the Membley trunk sewer lines and then drain into the treatment plant in Kibendera area passing through the Sukari Ranch and then connecting to the line on the Eastern By pass. Sukari Ranch Limited owns the land and the RAP has considered easements rights in terms of acquisition rather than acquisition of land for the trunk sewer lines thus minimizing the costs on land as well as the acquisition footprint. Infrastructure for Sewerage Trunk Lines By Pass Route This trunk line will begin from the Eastern By-pass and run for 4.6Km along the natural drainage and eventually drain into the treatment plant site approximately. This sewerage trunk line will drain all the wastes emanating from Membley Estate and its environs, Kenyatta University and its environs. The land along this site is within the government s demarcation for natural drains and there will be no compensation for land. During the socio-economic survey, it was further observed that there is no form of crops or trees along the natural drainage hence in equal measure, compensation of this nature will not occur. 71

72 72 RSIP Resettlement Action Plan Action Plan

73 RSIP Resettlement Action Plan Action Plan 5.3 Impacts On People And Livelihoods Census A comprehensive census of Project-Affected People has been carried during the preparation of this RAP. This census has included: The numbering of all residential structures in the affected communities, and the related numbering of all resident households, The inventory of all structures (both residential and non residential), including their measurement and description, The inventory of all fields cultivated in the Project-Affected area, including their measurement, description of standing crops if any, identification of stakeholders (owners, tenants, sharecroppers, as appropriate), The census of Project-Affected People, including the administration of a socio-economic questionnaire, The identification of disabled and sick people, child headed, and women headed households who may be categorized as vulnerable. Overview of the Results of the Census The total number of Project-Affected People is 1,619 individuals belonging to 419 households. Table 24 below shows the breakdown of these numbers for the affected communities. Table 24: Summary Results of the Census Residential /Commercial Structures Households Residents Affected Villages Overview of Impacts 340 households where the sewerage treatment plant will be located will be affected (physically and economically displaced) by the project, including the residential and commercial houses and other structures. The remaining households will instead be economically displaced through the loss of agricultural land that is within the riparian areas of Rivers Kamiti and Ruiru. The following table, sourced from the Socio-Economic Baseline Report, summarizes the main physical and socioeconomic characteristics of the PAPs in the project area: 73

74 RSIP Resettlement Action Plan Action Plan Table 25 : Main Physical and Socio-Economic Characteristics of households in the project area Characteristics Description Languages English, Kiswahili, Kikuyu Religion (1) Catholics (2) Pentecostals (3) Housing Walls: mud, mud brick, Roofs: aluminum or iron sheets. The important proportion of mud walls is a sign of the poor state of the village. Water Surface water from the nearby Ruiru River/Tap water/ Electricity No Electricity within the project affected site especially in sewerage treatment plant site; Membley Estate has electricity Television None Cell phone Safaricom, Airtel, Orange and Yu Mobile Education Several schools (primary and secondary) in Ruiru Town and environs Health Several clinics and health centres in Ruiru Town and environs Commerce Several market centres in Ruiru Town and environs Transport Motorbikes used to get people to the main road especialy in the site for the proposed sewerage treatment plant where there is poor road access Cultural sites No cultural site within project site Cemeteries No communal cemetery 5.4 Impact on Residential and Commercial Structures Residential structures that will be affected are mainly in the proposed site for the sewerage treatment plant where Ruiru Municipal Council owns the land. A total of 48 residential structures and 12 commercial structures are affected in the project area, as follows: -60 residential structure including commercial, kitchens, latrines among other ancillary structures. Type of housing: Households within the project site had an average of 2 buildings constructed within the homestead, which included residential houses (owned by 100% of the households), and either kitchen (76%) latrine/bathroom (100%), livestock pens (40%) or stores (12%), with a variation in the types of walling material and roofing material. The most common types of building materials used were earth/mud and stones as the walling and iron sheets as roofing materials respectively for residential houses and commercial structures. Photograph Plate 1 and 2 presents different types of residential structures observed in the Project-Affected Area. None of the affected structures has any modern features such as an inside bathroom or toilet, or running water and more generally the vast majority of houses are made only from local materials, including locally extracted earth or clay for walls without cement or plastering, local timber for the structure. Usual construction techniques include (see Photograph Plate 1): 74

75 RSIP Resettlement Action Plan Action Plan mud and wattle, based on a structure of vertical and horizontal wooden poles filled in with mud, Most of the households have no latrines within their homesteads. This human defecation habits on the farms and uncultivated pieces of land were evident, which is a health hazard incase the community members. It is therefore important to emphasize good sanitation habits as well as the dangers associated with improper habits during sensitization meetings. Ancillary structures include: Pit latrines Kitchens (when they exist, which is not common, they consist of a few second-hand iron sheets intended to protect the fire from the wind), Racks and sheds of various shapes and kinds, usually made of salvaged timber of poor quality. 5.5 Impact on Public and Community Infrastructure Roads The RSIP will not adversely impact on the road network instead improved access will be realized in the project sites that have limited and or poor infrastructure since the construction process will entail construction of access roads to facilitate entry in the sewerage treatment plant. Other Networks There is no piped water source, electricity or telephone network in the sewerage treatment plant project affected area. Similarly, the routings for the trunk sewer lines with the exception of Membley and Sukari Ranch Limited lack the above facilities. Water Supply Water supply in the sewerage treatment plant area and along the sewerage trunk lines are from traditional sources; specifically Ruiru River with no effort made towards roof catchment. There is no modern drilled well or spring catchment. Membley Park Estate is the only area that has piped water supply system. Public and Community Buildings Graveyard There is no public graveyard within the project site that could be adversely affected; there are no graves either in the other project sites. Churches There are a no churches in the Project-Affected Area; 75

76 RSIP Resettlement Action Plan Action Plan School There are several schools (primary, secondary and colleges) around the project site but are not going to be directly affected by the project in anyway. 5.6 Impact on Businesses The proposed site for the sewerage treatment plant has a couple of small businesses and enterprises including shops and eateries that primarily cater for the quarry workers. These businesses/small enterprises will be directly affected as a result of the proposed project. 5.7 Impact on Cultural Sites There are no cultural sites like shrines etc. in the project sites 5.8 Summary: Categorization of Project Affected People Based on the above impact assessment, the following categorization of Project- Affected People is used in further sections of this RAP: Physically-Displaced People: -Category A: Permanent residents, also customary/official owners of agricultural land. People in this category are at the same time: Encroachers who have become permanent residents of the area owners of their residence in most instances, Owners of agricultural land through official land tenure arrangement, Economically Displaced People: Residents undertaking quarrying activities on the land set aside for the sewerage treatment works and are not land owners (encroachers) Residents undertaking agricultural activities (crops cultivation) along the riparian land along the riverbanks (not land owners) Residents undertaking agricultural activities (crops cultivation) along the riparian land along the riverbanks (legal land owners) The project has category A and B Project Affected Persons as described in the definition above. That is the PAPs in the project site own permanent residences in the area but are encroachers on government land and at the same time others owner of agricultural land. 76

77 RSIP Resettlement Action Plan Action Plan 6 RESETTLEMENTCOMPENSATION STRATEGY 6.1 Key Principles The key principles committed upon by NaMSIP in this RAP are the following: Resettlement and compensation of Project-Affected People will be carried out in compliance with Kenya s legislation and World Bank s Policies and Procedures on involuntary resettlement. All the PAPs who will be physically displaced and own residential property in the sewerage treatment plant site have encroached on the land and will not receive any compensation for land ownership The vast majority of Project-Affected People derive their livelihood from quarrying (stone mining) even though they have no legal title on the land. They will be offered a livelihood restoration allowance including the provision of moving allowance. Both Physically-Displaced People and Economically-Displaced People will be compensated for their losses of livelihood, NaMSIP will assist PAPs in restoring their affected livelihoods, and will provide transitional assistance as necessary as long as livelihoods are not restored to their previous level, The RAP implementation and outcomes will be monitored and evaluated as part of a transparent process, PAPs and host communities will be informed and consulted during the whole course of RAP development, implementation and evaluation. 6.2 Conditions of Eligibility for Compensation Cut-Off Date The practical Cut- Off Date for implementation of the RAP will be deemed to be the date at which the census of affected people and affected assets was completed (29 th March 2013). No structure or field established in the Project-Affected Area after (29 th March 2013) shall be eligible for compensation. Eligibility Assets, including structures and fields, that were surveyed in the Project-Affected Area by the Cut-Off Date are eligible for compensation. People residing in the Project-Affected Area by the Cut-Off Date are eligible for compensation even if they have no legal tenure (encroachers). Table 26 in Section 6.4 provides details on eligibility. 6.3 Entitlements The Entitlement Matrix describes compensation and related assistance for each category of affected PAP. It is presented in Table 26 hereunder. 77

78 RSIP Resettlement Action Plan Action Plan Table 26: Entitlement Matrix Affected Asset Affected Right or Interest AGRICULTURAL LAND TITLED LAND: Land held under a registered title deed Eligible Entity (Individual or Household) Registered land (usually a physical person one case in the Project- Affected Area) INDIVIDUAL Eligibility Conditions Hold a registered land that was registered with relevant Authorities prior to the Cut- Off Date Entitlements Replacement of lost land by agricultural land of similar potential under similar tenure arrangements with formal registration in replacement land with the relevant land authorities Cash compensation for land or non- cash compensation of land (land for land) Cash compensation of all immoveable developments on the affected land, such as structures, etc - See below Structures UNTITLED LAND: Land held under customary ownership, and not registered Customary land owner (legally an unregistered), whether resident or nonresident INDIVIDUAL Hold, prior to the Cut-Off Date, an unregistered, customary land and be recognized as such Cash compensation of standing crops See below Crops Replacement of lost land by agricultural land of similar potential under similar customary tenure arrangements Cash compensation for land or non- cash compensation of land (land for land) Cash compensation of all immoveable developments on the affected land, etc. - See below Structures RENTED LAND: Land rights obtained temporarily as per a customary rental agreement Tenant as recognized by the customary landowner and customary authorities whether resident or non-resident INDIVIDUAL Occupy land prior to the Cut- Off date as per a rental agreement recognized by the land owner and customary authorities Cash compensation of standing crops See below Crops No compensation for the land itself Cash compensation to the owner of immoveable developments established by the owner and to the tenant of immoveable developments that were established by the tenant, such as structures, canals, soil improvement, etc - See below Structures Cash compensation of standing crops See below Crops 78

79 RSIP Resettlement Action Plan Action Plan Affected Asset RESIDENTIAL LAND Affected Right or Interest UNTITLED LAND: Land held under customary ownership and not registered Eligible Entity (Individual or Household) Customary land owner (legally an unregistered owner) INDIVIDUAL Eligibility Conditions Hold, prior to the Cut-Off Date, an unregistered, customary land and be recognized as such by local customary authorities Entitlements Replacement of lost residential land by resettlement residential land of similar size with formal recognition of ownership of the resettlement plot by the relevant administrative authorities Cash compensation for land or non- cash compensation of land (land for land) STRUCTURES CROPS RESIDENTIAL HOUSES: Inhabitable houses used as a permanent residence NON RESIDENTIAL STRUCTURES: Non inhabitable house or other structure of any design STANDING NON PERENNIAL CROPS STANDING PERENNIAL CROPS Owner HOUSEHOLD Be the locally recognized owner of an inhabitable house permanently used as a residence Owner - INDIVIDUAL Be the locally recognized owner of a non residential structure Owner of the crop INDIVIDUAL Owner of the crop INDIVIDUAL Be the recognized owner of a standing crop and be unable to harvest it prior to land occupation by project Be the recognized owner of a standing perennial crop Cash compensation of all immoveable developments on the affected land, such as structures, wells, etc - See below Structures Resettlement house of similar or better quality on a resettlement plot and Cash compensation of the lost house per Kenyan law at full replacement value Cash compensation at full replacement value Cash compensation at full replacement value Cash compensation at full replacement value 79

80 RSIP Resettlement Action Plan Action Plan 6.4 Overview of Compensation Packages for the Main Categories of Project-Affected People Based on the eligibility matrix, table 27 hereunder presents an overview of eligibility criteria and compensation packages for each of the five main categories of Project-Affected People identified. Table 27: Eligibility and Compensation Packages for the Main Categories of Project-Affected People Category of PAP Eligibility Criteria Compensation Package A: Permanent residents, also customary holders of agricultural land B: Permanent residents and tenants or sharecroppers of agricultural land Be recognized by local traditional authorities and the relevant resettlement committee as a permanent resident and a customary holders of agricultural land located in the Project-Affected Area at the cutoff date Be recognized by local traditional authorities as a non-permanent resident in the Project-Affected Area and as a customary land holder of agricultural land located in the Project-Affected Area for more than one year - Resettlement house of similar or better quality on a resettlement plot (best practice) AND cash compensation of the lost house at full replacement value - Replacement of lost land by agricultural land of similar potential under similar tenure arrangements near the resettlement site No cash compensation of land if the household does not choose resettlement - Cash compensation of all immoveable developments on the affected agricultural land, such as structures, canals, soil improvement, etc - Cash compensation of standing perennial crops at replacement value and of non perennial crops at market value - Moving allowance if the household vacates the Project-Affected Area at a given date - Livelihood restoration package - Cash compensation of the lost non permanent house at full replacement value - Replacement of lost land by agricultural land of similar potential under similar customary tenure arrangements anywhere in the Area - Cash compensation of all immoveable developments on the affected agricultural land, such as structures, canals, soil improvement, etc - Cash compensation of standing perennial crops at replacement value and of non perennial crops at market value - Moving allowance if the household vacates the Project-Affected Area at a given date - Livelihood restoration package as per section

81 RSIP Resettlement Action Plan Action Plan Moving Allowance and Moving Assistance The PAPs will be given cash as part of moving allowance assistance and allowance out of the proposed site for constructing the sewerage treatment plant. Salvaging PAPs will be allowed to salvage any materials in the structures they own at the current village. These materials are iron sheets, poles and other components. 6.6 Cash Compensation General The term cash is used in this RAP to denote payments in currency. Experience in sub-saharan Africa indicates a high risk potential with large, lump-sum cash payments to parties who have little experience with money management. While RSIP shall provide compensation in cash consistent with the local law requirements, the project will also include a number of additional benefits that are not represented in the cash compensation package. These additional, nonmonetary benefits are intended to mitigate resettlement risks recognized under the involuntary resettlement procedures for the bank, but not Kenyan law. Though not legally required, the incremental costs of these benefits will be borne by the project so as to assure compliance with the project s stated commitment to follow the guidelines and recommendations of the World Bank, while complying with the local law requirement to provide cash compensation valued at real replacement value Structures Residential Houses Cash compensation of residential houses will apply to the following situations: PAPs in Categories A (permanent residents of the Project-Affected Area) The replacement value of houses has been investigated during the Socio-Economic Baseline Survey. Construction unit prices in the Project Area were observed to be the following (March 2013): - For a new house of standard dimensions (10 m x 8 m), one would need about 100,000 Ksh (about USD 1,300): Mason s labor 30,000 Ksh Nails and wood= Ksh 15,000 Roofing sheets of aluzinc x 40,000Ksh Windows, doors=10,000 Ksh Transport costs=5,000 Ksh 81

82 RSIP Resettlement Action Plan Action Plan Cement Costs=10,000 Ksh Total: 100,000 Ksh. For purpose of cash compensation, all residential houses will be categorized as follows, regardless of their current condition for the purposes of compensation: Walls of mud, roof in aluzinc or other metallic material and cement floor. Additional features, such as verandas, cemented floors, plaster, etc.., will be valued on a case-by-case basis at full replacement value and added to the result of the above calculation. This is justified by the relative scarcity of such features, which does not make it necessary to have a standard calculation rate for these. Non-Residential Structures Non-residential structures include latrines, sheds and verandas of various kinds, dish racks, kitchens, etc. Except for pit latrines, these structures are usually almost entirely moveable, and as long as the owner will be able to salvage the materials, the loss will be very limited. The compensation at full replacement value is therefore mainly intended to cover the labor needed to dismantle and re-establish the structure elsewhere. The following rates will be applied: Latrines: 10,000 Ksh (equivalent to 4 days of labor at least, which is sufficient to dig a replacement pit), Non-residential structures that would not fall in one of the above categories will be valued and compensated on a case by- case basis. Churches No church will be reconstructed by the project because there is no church that will be destroyed during land acquisition because there is no church or religious facility in the reservoir area. Shrines and graves There are no shrines or graves in the project area that was observed and that would warrant compensation. Crops Compensation for crops will be done on the basis of the requirements of Kenyan laws. Under this law, landowners and leaseholders are entitled to be compensated at market value for land; tenants for crops and property on the land that they rented; property owners for the value of any property on expropriated land. 82

83 RSIP Resettlement Action Plan Action Plan Non-Perennial Crops In situations where the farmer cannot be given sufficient notice to harvest his/her crop, compensation will be paid based on the market value of the non-perennial crop. These rates are based on the following data collected during the 2013 socioeconomic baseline study when preparing this RAP: - Average yields and prices for typical crops grown in the project area: The individual crop yields used in this calculation represent good harvests as reported to the socioeconomic team in meetings in the villages, Crop prices used in calculations were taken from results of the visits to the central market in Ruiru Town Perennial Crops The calculation of the value of perennial crops for compensation is also based on the market rates and includes the type of crops, the age and size or area under which the crops are grown. These factors have been used as the basis for the calculation of perennial crop loss. Compensation rates are factored for the following stages of tree development: - Seedling, - Young, not productive, - Young productive, - Mature. The calculation of the full replacement value considers not only of the product of the crop over one year, but also the cost of re-establishing the crop (seedlings, soil preparation, fertilizers, others), as well as the lost income during the period needed to re-establish the crop. Compensation rates will be calculated in compliance with the full replacement value principle, based on the following: If: V: Average market value of the produce of one tree for one year D: Average period of time required to re-establish the tree to an adult production level, in years CP: Cost of planting (seedling, soil preparation, initial fertilization) CL: Cost of the labor required to maintain the crop during the period of time needed to re-establish it to its previous production level. 83

84 RSIP Resettlement Action Plan Action Plan The compensation amount C for one tree is determined by application of the following formula: C = V x D + CP + CL Specificities of Tenants and Sharecroppers Tenants will be paid the whole compensation value for the crop they have grown. The total cost for compensating the crops and trees using the market rates is Ksh. 2,154,163.8 Businesses There is limited number of businesses/small scale enterprises in the land identified for constriction of the sewerage treatment plan. There are 12 structures in total and are mainly eateries that provide food for the PAPs working in the quarry. Rate Update and Market Value Monitoring Compensation rates for crops will be updated on a yearly basis based on a fresh market survey at lean season (January) and after harvest (May). The market survey will include price monitoring in the project area, confirmed by interviews with potential farmers. Valuation of Trunk Sewer Pipeline In Membley Estate Route and Sukari Ranch Route The sewerage trunk line that will serve the Membley Estate will pass on land for 21 PAPs who have legal title over the land even though it is a riparian reserve. This RAP proposes that the land be acquired using the easement approach where the land owned by the PAPs will not be fully purchased but will instead be acquired as a wayleave. Methodology The right to lay a pipe in another person s land is frequently called an easement. Although, the right to lay a pipe in another person s land is sometimes referred to as an easement, such a right can rarely be an easement in the true legal sense of the word. It is usually a particular form of licence called a wayleave. Wayleaves Wayleaves are normally created when two parties agree in writing that the grantor will permit the grantee to use part of his/her land for a wayleave. This agreement may be in the form of an exchange of letters or a more formal document like a deed that will attract a stamp duty. Another form of agreement would arise where, in the terms of a conveyance, a restrictive covenant creates a wayleave for the benefit of the seller over the purchasers land. 84

85 RSIP Resettlement Action Plan Action Plan Many wayleaves are negotiated between owners of land and statutory authorities holding compulsory purchase powers. The authority may never exercise those powers, but their presence does lead to an express agreement between the parties. Where statutory powers have to be exercised, the method constitutes acquisition of a legal estate. The owner of the land will be entitled to a notice to treat following the compulsory purchase procedure under the Land Act The owner of the land subject to the wayleave will be compensated as if a legal estate was being acquired. Betts and Kent (1988) state that payments made by acquiring authorities and undertakings should be broken into two distinct headings: (i) (ii) Consideration for acquiring the wayleave(i.e. capital value of that part of that land subject to the wayleave): and, Compensation for the damage caused in the laying the pipe (i.e. compensation for the disturbance, severance and injurious affection where they apply). Basis of Valuation The value of an interest in land can be affected, due to a wayleave, in a number of ways as follows: (i) The depreciation in the value of the land due to the wayleave. The existence of the wayleave pre-supposes a right over the grantor s land. Such a right will restrict the grantor s right to use the land himself. Included under this is the hope value, which is attached to the value of an interest in land. The possibility of future development, whether immediate or far postponed, will attract to a land a value higher than the existing use value. A notice to treat will require that the value be calculated as at the date of the notice to treat. Hence one must consider only the depreciation in the present value of any potential change of use, caused by the appearance of a wayleave. (ii) (iii) Damage due to constructional operation or the laying of a pipe must entail disturbance of the surface of the soil together with the crops growing thereon. Injurious affection and disturbance to adjoining land. This refers not only to the land over or below the wayleave but also to adjoining lands. The presence of the wayleave may have a detrimental effect on the value of adjoining land. The amount of award for compensation will in practice depend on the following matters: Length of the wayleave: the compensation for the damage by the laying of the pipe should be related to the length of the pipe and its position in the field rather than the total area of the field. 85

86 RSIP Resettlement Action Plan Action Plan Width of wayleave: There are number of widths to be considered which affect the wayleave. These are: -Width of the land sterilized due to the presence of the pipe. -Width of the land affected by pipe laying. -Width of the wayleave if defined. -Width of working strip used in laying the pipe. Width of the land sterilized will include the strip on which the pipe is to be laid, and a strip of land 3 metres on either side where certain operations such as building works are forbidden. The width of land sterilized may therefore be: width of the pipe plus 3 metres of either side. Width of the land affected by pipe laying arises because the digging of a deep trench and the laying of a pipe will cause damage that will take so long to heal that it can be referred to as permanent damage. It is in this part that the tilth has been destroyed and the subsoil has become mingled with the topsoil. The width of the land affected during the construction exceeds the width of the land sterilized. The width of the working strip used in laying the pipe will be the area of land used by the pipe laying gang. Depth of pipe: This is important because pipes are laid at least 750 mm below ground level in order to minimize the risk of obstructing cultivations. Shallower depths restrict the amount of cultivations possible and hence increase the amount of compensation payable. In Britain, lands tribunals have recommended the basis of calculation for land taken as laid length at a price per metre at 50 percent of the value of freehold land. Many authorities make substantial offers well above the rule of thumb established by the tribunals. With respect to damage caused by the laying of the pipe, the valuer should be guided by two principals (Bents and Kent, 1988:549):- (i) (ii) The claimant is entitled to be left in no worse a position than he would have been had the event not taken place and where there is no other means of restitution. It is the duty of the claimant to mitigate wherever possible any claim that may arise (i.e. the list of items will vary with circumstances). Valuation On the basis of the foregoing information and taking into consideration all other relevant factors we have compiled the values of the affected parcels of land as hereunder:- 86

87 RSIP Resettlement Action Plan Action Plan Table 28. Computation Schedule Parce WAY LEAVE AREAm 2 ) WORKING AREA WAY LEAVE WORKING AREA l No. (3m width) m 2 (6m width) VALUE (Kshs) VALUE (Kshs) ,800 5, ,160 4, ,800 3, ,240 6, ,160 4, ,160 4, ,800 3, ,160 3, ,160 3, ,520 5, ,240 6, ,800 3, ,520 5, ,800 3, ,800 3, ,800 3, ,160 4, ,520 5, ,800 5, ,160 4, ,800 3,600 Total 93,600 Factors Considered In Aforesaid Calculations 1. The cost of land was determined by the going rates in Membley Estate for 0.25 ac plots at the rate of 5M for prime upper plots and 4.5 M for the lower lying plots transversed by Kamiti River. 2. Rates applied are for metre square areas at the rate of Kshs 40/= p.s.m. for the laid length & working area during construction. 3. The wayleave will follow the river contours and hence very little adverse effect is created to the land use. 4. The sewer is a value added service to the plots and will enhance the value of the land. The understanding here is that the plots will be allowed to connect to the sewer line. 5. The disturbed area will be returned to as near the previous state and levelled by the acquiring authority. Easement Valuation for Land in Sukari Ranch The calculation for easement/wayleave for the trunk line passing across the Sukari Ranch Limited has not been prepared even though discussions are on going and the reason being the consultants are yet to receive permission to access the ranch and determine the costs involved. Money Management Awareness 87

88 RSIP Resettlement Action Plan Action Plan For most PAPs, the cash compensation they will receive from the project will represent an amount of cash far beyond any that they ever handled before. Experience of similar situations in Africa indicates that rural compensatees are particularly vulnerable to crooks and thieves (and quite ironically to termites), and also to misuse and mismanagement of this sudden influx of cash. Cash may be used on short term spending (particularly alcohol and commercial sex where male household heads are concerned), which will eventually leave the household in its entirety in hardship worse than they experienced before compensation. Although such problems cannot be avoided entirely, creating better awareness on money management can to a certain extent mitigate them. Any PAP receiving cash compensation will receive a one-day course on money management delivered by an organization with experience in similar matters, with the following objectives: How to secure cash, How to avoid misuse and mismanagement, Household savings and expenditures plan, Benefit of having the money in a bank account. 6.7 Livelihood Restoration Eligibility Project-Affected Households falling in categories A and B are eligible to the livelihood restoration packages proposed, in reason of one such package per household. These packages are the following: Employment, Training to non-farming Income-Generating Activities, and related business support. 6.8 Transitional Assistance The Project construction schedule currently envisages that much of the Project- Affected Area will have to be vacated in September 2013, and PAPs within these areas will have to move by this time. The implication is that they will not be able to farm those portions in after October 2013 onward, as they would normally have done, because they would not be able to harvest these crops as the harvest starts in February. The compensation for crop loss will be Ksh. 2,154, Compensation Management and Associated Procedures Database A database of affected households will be established for purposes of compensation management. This database will be designed from the beginning to allow not only to manage compensation during the active phase of resettlement 88

89 RSIP Resettlement Action Plan Action Plan and compensation, but also to carry out further monitoring of households. It will therefore include files of affected assets to allow compensation management, and files of households to allow further socio-economic monitoring, with appropriate relationships between each other. All relevant census and socio-economic information related to both affected assets and affected households will be entered into this database. Delivery of Entitlements Once a given affected household has selected compensation and livelihood restoration options, the household head and the RSIP will sign a comprehensive compensation agreement. This compensation agreement will clearly spell out commitments of both parties, i.e. the following: - For RSIP: commitment to deliver and/or pay compensation and livelihood restoration packages at certain contractual times and according to certain contractual modalities. - For the affected household: commitment to vacate agreed land at a date agreed upon by both parties, with financial incentives attached to the compliance with commitment. Further to the all-encompassing compensation agreements, receipts and certificates of delivery will be signed by both parties upon delivery of any of the components of the overall entitlement. 89

90 RSIP Resettlement Action Plan Action Plan 7 VULNERABLE PEOPLE 7.1 Identification of Vulnerable People Vulnerable people, as defined by the World Bank guidelines are people who by virtue of gender, ethnicity, age, physical or mental disability, economic disadvantage, or social status may be more adversely affected by resettlement than others and who may be limited in their ability to claim or take advantage of resettlement assistance and related development benefits. Vulnerable people potentially eligible for specific assistance under this Resettlement Action Plan are those who are affected by the Project land acquisition, compensation and resettlement activities. Vulnerable people include, but are not limited to: Disabled persons, whether mentally or physically; Seriously ill people, particularly people living with HIV/AIDS and other illnesses; The elderly, particularly when they live alone; Households whose heads are children; Households whose heads are female and who live with limited resources; Households whose heads have no or very limited resources; and Widows and orphans. The socio-economic survey results show that one person or 0.5 % of the PAPs are old people (over 70 years old), 3 persons are disabled or 1 % while 2% are orphans. Consultation meetings with existing community development programs came up with agreement that this group will benefit from the livelihoods improvement facilities offered by these programs and a closer monitoring for implementation will be done by all stakeholders. All those people will benefit from the livelihoods improvement measures from the mentioned existing community development programs as per consultation and agreement done between the project and the concerned development program management authorities in the site. RSIP will be compelled to assist these vulnerable people in so far as they are affected by the displacement and resettlement process as stipulated by the World Bank procedures for resettlement. Such assistance may include the following activities: Identification of vulnerable people and identification of the cause and impacts of their vulnerability, either through direct interviews by a Project social worker or through the community; this step is critical because often 90

91 RSIP Resettlement Action Plan Action Plan vulnerable people do not participate in community meetings, and their disability/vulnerability may remain unknown; Identification of required assistance at the various stages of the process: negotiation, compensation, moving; Implementation of the measures necessary to assist the vulnerable person; and Monitoring and continuation of assistance after resettlement and/or compensation, if required, and/or identification of those entities, whether Governmental or not, that could sustain the Project s assistance beyond its period of activity. Assistance may take the following forms, depending upon vulnerable persons requests and needs: Assistance in the compensation payment procedure (e.g., specifically explain the process and procedures, make sure that documents are well understood); Assistance in the post payment period to secure the compensation money and reduce risks of misuse/robbery; Assistance in moving: providing vehicle, driver and assistance at the moving stage, assist the person in identifying his/her resettlement plot; Assistance during the post-resettlement period, particularly if the solidarity networks that the vulnerable person was relying on have been affected: food support, health monitoring, etc.; and Health care if required at critical periods specifically for the physically challenged, particularly the moving and transition periods. 7.3 Process A Resettlement Committee (site committee) will be established and this committee will have to play a role in the identification of vulnerable people and the definition of assistance activities. The following process will take place: Advertisement of RSIP s intention to provide specific assistance for vulnerable people, Designation of a sub-committee, within each of the Resettlement Committee, to handle issues related with vulnerable persons, with in addition to community members and one RSIP representative, Identification by the sub-committee of vulnerable persons requiring assistance, through applications by the vulnerable persons themselves and through identification by social networks in the villages, Identification of assistance measures on a case by case basis, with the following process: 91

92 RSIP Resettlement Action Plan Action Plan 1. Review of each case by RSIP /PIU Environment and Social specialist with one sub-committee member, including a visit at home and a detailed interview, 2. Discussion on required assistance measures between the two individuals above and the vulnerable person, 3. Report to the sub-committee on proposed assistance measures, 4. Review and decision by the sub-committee, 5. Implementation of assistance measures, 6. Monitoring. RSIP will allocate a specific budget to assistance to vulnerable persons (see section 11.2 Budget). 92

93 RSIP Resettlement Action Plan Action Plan 8. GRIEVANCE MANAGEMENT & REDRESS 8.1 Likely Types of Grievances and Disputes In practice, grievances and disputes that are most likely during the implementation of a resettlement program are the following: Misidentification of assets or mistakes in valuing them; Disputes over plot limits, either between the affected person and the Project, or between two neighbors; Dispute over the ownership of a given asset (two individuals claim to be the owner of this asset); Disagreement over the valuation of a plot or other asset; Successions, divorces, and other family issues, resulting in disputes between heirs and other family members, over ownership or ownership shares for a given asset; Disagreement over resettlement measures, for instance on the location of the resettlement site, on the type or standing of the proposed housing, or over the characteristics of the resettlement plot; and Disputed ownership of a business (for instance where the owner and the operator are different persons), which gives rise to conflicts over the compensation sharing arrangements. 8.2 Management Mechanism Overview It often appears that many grievances derive from misunderstandings of the Project policy, or result from neighbor conflicts, which can usually be solved through adequate mediation using customary rules. Most grievances can be settled with additional explanation efforts and some mediation using customary disputes settlement mechanisms: - Through explanations (for instance explain in detail how the Project calculated the complainant s compensation and that the same rules apply to all); or - Through arbitration, resorting to elders or individuals well regarded by the community and external to it. In contrast, resorting to the judicial system often results in long delays before a case is processed, may result in significant expenses to the complainant, and requires a complex mechanism, involving experts and lawyers, which can fall well beyond the complainant s control, and be counter productive to him/her. 93

94 RSIP Resettlement Action Plan Action Plan National Land Commission Grievance Mechanism The Land Act 2012 and National Land Commission Act 2012 obligate the NLC to manage grievances and disputes related to resettlement or land amicably. NLC will be expected to arbitrate or negotiate with PAPs or landowners that have any grievances concerning their compensation. The cascading structures they put in place are also expected to take up this responsibility. However, even though NLC has been constituted it is not yet actively engaged in resettlement issues because it has not received the desired staffing levels and work force and it is overwhelmed by the magnitude of land related issues and would not be in a position to execute its duties as required by law expeditiously for the moment. Structures For Grievance Management In the absence of a grievance mechanism that must be instituted and overseen by NLC according to the Land Act, this RAP proposes that the SCRCC and LRCCs provide this function on a transitional basis until NLC is fully operational and clear structures defined. SCRCC/LRCCs structures will act as mechanism of grievance management. DRCC will be based at the district level while LRCCs will be based in each location. The LRCCs will be the first points of contact in grievance management system. These committees will seek to resolve PAPs issues quickly in order to expedite the receipt of entitlements, without resorting to expensive and time-consuming legal process in the Environment and Land Court 56 or high court that may delay the implementation of RSIP project. Appeals to the court will only be occasioned if the grievance procedure fails to provide a result. Process Procedures of Lodging Complaints SCRCC /LRCCs will inform PAPs of their loses and entitlement. If satisfied, the PAP claims resettlement payment directly from NLC 57. If dissatisfied or the PAP does not clearly understand the entitlement/any aspect of the resettlement plan, s/he approaches the LRCC for clarification. The LRCC makes a note and explains the unclear issues to the PAP in accordance with the RAP. If the issue(s) are resolved, the PAP collects the payment from the paying authority, NLC 58. If not resolved, PAP moves to the next step. PAP will fill a specifically pre-designed complaint form and append his or her signature and formally submit it to LRCC office; or LRCC documents 56 This is court that is proposed by the Constitution of Kenya 2010 to deal with resettlement and land disputes 57 NLC is official mandated organization that makes compensation award under the Kenyan laws 58 Same comment as footnote 71 94

95 RSIP Resettlement Action Plan Action Plan the complaint on behalf of the PAP. The LRCC members will assist those who cannot fill up the forms. A copy is maintained by LRCC and another copy passed to SCRCC. LRCC attempts to find a solution through arbitration, explaining, settling, or facilitating consensus dialogue. If not successful LRCC assists PAP to fill a complaints form appended with his/her signature and formally submits to the SCRCC. The DRCC holds a session with the aggrieved PAP and minutes recorded. SCRCC attempts to find a solution through arbitration, explaining, settling, or facilitating consensus dialogue. If resolved, SCRCC approves and the PAP collects his/her entitlements from NLC. If deemed necessary by the SCRCC, the case will be re-investigated and necessary corrective measure undertaken. Figure 9 below show schematically how the grievances will be addressed. If not resolved, the complainant can seek redress in Environment and Land Court or register his/her case in any High Court in Kenya. The Land and Environment court deals specifically with land and environment related disputes of which resettlement and valuation are part. The legal option will only act as avenue of last resort and will be sought after all other redress mediums have been exploited and exhausted. The Project thus will put in place an extra-judicial mechanism for managing grievances and disputes arising from the resettlement process based on explanation and mediation by third parties. Each of the affected persons will be able to trigger this mechanism, while still being able to resort to the judicial system. Procedures relevant to this amicable mechanism are detailed below. It will include three different levels (see also Figure 9): Registration by RSIP/PIU of the complaint, grievance or dispute; Processing by RSIP/PIU of the grievance or dispute until closure is established based on evidence that acceptable action was taken; and In the event where the complainant is not satisfied with action taken by RSIP/PIU as a result of the complaint RSIP/PIU, an amicable mediation can be triggered involving a mediation committee independent from the Project. Grievance Registration and Monitoring RSIP/PIU will establish a register of grievances, which will be available at the following locations: Community Liaison Officer in Project Office in Ruiru, Construction Site. 95

96 Figure 9: Grievance / Dispute Management Mechanism Registration by RSIP of the grievance or dispute RSIP Resettlement Action Plan Action Plan Treatment by RSIP of the grievance or dispute Closure by RSIP of the grievance or dispute YES Complainant satisfied with outcome NO Resort to Mediation Committee Final closure Grievance processing by Mediation Committee Response of the Mediation Committee One or the other party resort to Justice NO Complainant satisfied with outcome YES Final closure 96

97 RSIP Resettlement Action Plan Action Plan The existence of this register, as well as procedures to lodge a complaint (where, when, etc.), will also be broadly advertised by RSIP/PIU. The register will be established as of the commencement of resettlement and compensation activities. For each grievance, a grievance file will be opened, including the following elements: Initial grievance sheet (including the description of the grievance), with an acknowledgement of receipt handed back to the complainant when the complaint is registered; Grievance monitoring sheet, mentioning actions taken (investigation, corrective measures); and Closure sheet, one copy of which will be handed to the complainant after he/she has agreed to the resolution and signed-off. Complaint closure does not necessarily mean that the complainant is happy with action taken (RSIP/PIU may decide that the complaint is not founded, and that the RAP principles have been complied with). Closure means that the complainant agrees that action has been taken without necessarily being happy with the outcome. Mediation Committee Amicable Resolution Mechanism Mediation Committee Complaints that cannot be closed to the complainant s satisfaction will be handed over to a mediation committee that will include the following individuals: One representative of the local Administration; One RSIP/PIU representative acting as an observer; Three representatives of the affected people, including at least one woman, chosen from the Resettlement Committees and/or amongst community based organizations, elders, customary authorities, One representative of an NGO or of a religious organization present in the field in the concerned area and well regarded by the population. The mediation committee will meet as needed, depending on registered complaints and disputes. Processing After a complaint or dispute has been registered, RSIP/PIU will prepare the technical background to the complaint (for instance, the proposed compensation amount, the list of meetings and interviews with the complainant, a description of the exact reason of the dispute, etc.) for consideration by the mediation committee. The complainant(s) will be invited before the mediation committee, which will mediate and attempt to propose a solution acceptable to both parties (RSIP/PIU 97

98 RSIP Resettlement Action Plan Action Plan and complainant). If need be, other meetings will be held and the committee may resort to one of its members to arbitrate in a less formal framework than meetings, if appropriate. If reached, the agreement will be sanctioned by a settlement agreement signed by the parties, and the chair of the mediation committee will be responsible for monitoring the implementation of this agreement, which will include all references to the applicable local law provisions. Grievances resolution are encouraged to be resolved at the village level, as they are aware of and involved in the whole process. If not resolved the high court (land and environment court) remain an avenue for voicing and resolving these complaints as is provided for by the Constitution of Kenya (CoK). 98

99 RSIP Resettlement Action Plan Action Plan 9 MONITORING AND COMPLETION AUDIT 9.1 General Objectives of Monitoring Monitoring is a key component of the Resettlement Action Plan and is an integral part of RSIP s/piu responsibility and obligations. It has the following general objectives: Monitoring of resettlement and compensation progress, of specific situations of economic or social difficulties arising from the implementation of the compensation and resettlement process, and of the compliance of the actual implementation with objectives and methods as defined by World Bank Principles, Rwandese regulations and this RAP; Audit of the completion of the resettlement program, through and assessment of the short- mid- and long-term impacts of the compensation and resettlement program on affected households, their incomes and standards of living, the environment, local capacities, housing, etc. Monitoring allows to correct implementation methods in real time during Project implementation, and also to check whether general objectives have been met and whether the resettlement and compensation program can be deemed complete. Monitoring and auditing include an internal tier and an external tier. 9.2 Internal Monitoring Objectives Monitoring will address the following aspects: Social and economic monitoring: follow-up of the status of PAPs, cost of housing in the displacement area, potential land speculation, environmental and health situation, livelihood restoration including agriculture, small businesses, employment and other activities; Monitoring of vulnerable people; Technical monitoring: supervision of infrastructure and housing construction where relevant, commissioning and testing of the technical components of the resettlement housing; and Grievances and grievance management system. Indicators and Frequency of Monitoring During the active phase of resettlement and compensation, the following key progress indicators will be measured internally by RSIP/PIU on a quarterly basis: Numbers of households and individuals affected by Project activities; 99

100 RSIP Resettlement Action Plan Action Plan Numbers of households and individuals displaced as a result of Project activities; Numbers of structures taken possession of by PAPs; Grievances (open, closed); and Amounts of compensation paid per category (structures, land, crops, others). A brief quarterly internal monitoring report will be prepared on this basis. It will be publicly disclosed. In addition, simple socio-economic parameters will be established and monitored annually for a sample of about 20% of PAPs, for instance the following: Average monetary income, and total income including self-consumption; Breakdown of household expenditures; Surface area of land holdings, Crops and estimated or observed yields, Number of unemployed people; and Number of children at school. Every two years, the socio-economic quality of life index will also be measured and calculated to allow comparisons. This will require socioeconomic surveys to be administered once every two years for 3 years on a sample of about 20% of PAPs. 9.3 External Monitoring RSIP/PIU will hire a suitably qualified external social auditor with significant experience in resettlement to carry out two reviews annually with reviews focusing on the assessment of compliance with social commitments contained in Kenyan legislation, in the World Bank Principles, in this Resettlement Action Plan(s), in the ESIA and its attached action plans, and in the Social Management Plan. Objectives of these six-monthly reviews are as follows: To assess overall compliance with the RAP and other social commitments made in the Environmental and Social documentation, To verify that measures to restore or enhance Project-Affected Peoples quality of life and livelihood are being implemented and to assess their effectiveness, To assess the extent to which the quality of life and livelihoods of affected communities are being restored in an appropriate manner. 100

101 RSIP Resettlement Action Plan Action Plan Beyond commitments identified in this Resettlement Action Plan, this review will also assess overall compliance with other mitigation measures to address non resettlement-related social impacts described in the ESIA, the SMP and the Contractor Plans. The types of commitments that will be verified by the external monitoring expert include the following: Pollution prevention - dust and noise management in communities, Community safety - awareness raising programs in communities on communicable diseases; community awareness of project traffic routes and traffic safety briefing, Infrastructure and services - reinstatement of damaged infrastructure and compensation process; and roads shared with the public are maintained in reasonable condition Community liaison - community awareness of project activities; complaints procedures; camp rules; recruitment process; project traffic speed limits; pre-warning of blasting, noisy activities and other planned disruptions; procurement process and regular community meetings and access to community liaison officers, Grievance management follow up of grievances reported; accessibility of Community Liaison Officers; community awareness of complaints procedures and complaints close out. External monitoring reports will be prepared independently by the reviewer and released to the lenders and to the public depending) after review by RSIP/PIU for factual accuracy. 9.4 Resettlement Completion Audit The purpose of the Completion Audit is to verify that RSIP has complied with resettlement commitments defined by the RAP, and more generally if compliance with World Bank procedures on involuntary resettlement is warranted. Reference documents for the Completion Audit are the following: This Resettlement Action Plan, Kenyan laws as they are described in Section 4 of this RAP, Reference policies contained in World Bank procedures related to involuntary resettlement. The Completion Audit has the following specific objectives: General assessment of the implementation of the RAP against the objectives and methods set forth in the RAP, Assessment of compliance of implementation with laws, regulations and safeguard policies; 101

102 RSIP Resettlement Action Plan Action Plan Assessment of the fairness, adequacy and promptness of the compensation and resettlement procedures as implemented; Evaluation of the impact of the compensation and resettlement program on livelihood restoration, measured through incomes and standards of living, with an emphasis on the no worse-off if not betteroff requirement; and Identification of potential corrective actions necessary to mitigate the negative impacts of the program, if any, and to enhance its positive impacts. The Completion Audit will be based on documents and materials generated by internal and external monitoring. In addition, auditors will make their own assessments, surveys and interviews in the field and with Project-Affected- People. 102

103 RSIP Resettlement Action Plan Action Plan 10 PUBLIC CONSULTATIONS AND DISCLOSURE 10.1 Previous Consultation and Reflection in the Planning Process Consultation with affected communities started even before the on-set of the RAP preparation, this was especially in March 2012, when the design of the Project was final enough to allow the disclosure of a clearly identified and delineated footprint, which made it possible to give residents a clear indication of the impacts. Public consultations were held primarily during the following periods; 1. During the development of the Environmental and Social Impact Assessment (ESIA) During the preparation of Feasibility Study report in During the preparation of the RAP-2013 March-May 4 meetings have then been held with the communities to present the main features and the overall schedule of the resettlement process. Records of these meetings are presented in Appendix 1 and 2. The main issues raised in these meetings were the following: Livelihood restoration, Compensation Employment 10.2 Village Resettlement Committees A formal consultation mechanism has been put in place to allow for continuous interaction between the communities and RSIP. Resettlement Committees have been nominated in the Project Affected villages. Appendix 3 gives details on the composition of the Resettlement Committees. Appendix 1 and 2 presents minutes of meetings held with the Resettlement Committee Consultation Concept Resettlement Planning Stage Any sensitive decision will be made by the affected communities in consultation with RSIP/PIU which will organize meaningful information and consultation so that this process can take place between the project and fully informed community members. 103

104 RSIP Resettlement Action Plan Action Plan Although initial consultations described above have been key in defining preliminary options outlined in this RAP, consultation with communities will be critical in refining options identified in this RAP. Wherever decisions have to be made by communities, consultation at planning stage will generally be organized in the three following stages: Disclosure of preliminary options, as described in the RAP, to the resettlement committees, Discussion of these options with resettlement committees, and tentative selection of the preferred option, Disclosure of the preferred options in public meetings with the resettlement committees and the general population, and validation of this option in public. Resettlement Implementation Stage The resettlement committees will remain active during the implementation stage, and will remain the choice channel to convey communities concerns and questions to RSIP/PIU. It is likely that a number of issues will need consultation and discuss, such as, for instance, the following: Management of transitional assistance, Management of assistance for vulnerable people, Disputes of various kinds Disclosure MoNMED is obligated to disclose documentation locally, and will make the following available: Full RAP in English (one copy available at all times in Project information offices, one copy given to the resettlement committees), Update notes when needed, given to each of the resettlement committees and publicly available at Project information offices. In addition, this RAP will be publicly disclosed in English on the AWSB s and website of the ministry. 104

105 RSIP Resettlement Action Plan Action Plan 11 IMPLEMENTATION OF THE RAP 11.1 Implementation Arrangements Compliance with social commitments contained in this document will be under the responsibility of the Environmental and Social Officer in MoNMED/AWSB/PIU, who reports to the Project Coordinator. The Environmental and Social Officer is responsible for securing and maintaining the RSIP s project s social license to operate, which during the project s construction phase will entail the following areas of oversight and responsibility: Oversee and provide quality assurance on the following Resettlement action planning and execution Community relations Socio-economic impact assessment Implementation of social aspects of recruitment and procurement policies Development and execution of additional needed policies for all operational areas of responsibility As mentioned, the Environmental and Social Manager will be supported by a field based team leader in the primary functional areas of resettlement planning, community relations and community development, each of whom will have the requisite staff and material support to achieve their mission. A supervising consultant (firm) will be recruited to supervise the construction activities and the supervising consultant will also recruit an environmental and social specialist including engineers to oversee the construction activities. The RSIP/PIU Coordinator will serve as the primary point of contact between communities of the project affected area and the RSIP project, and will have the following primary areas of responsibility inter alia: Liaise with County and Sub County government with regard to local community liaison and issues and in consultation with appropriate RSIP personnel Log and respond to grievances lodged by members of the community Organize and facilitate compensation payment actions Obtain prior written permission from community leaders / affected members for any intended damage to any infrastructure, crops or land as a result of construction and compensation to be paid. 105

106 RSIP Resettlement Action Plan Action Plan 11.2 Liaison with the Government of Kenya The RSIP is owned by the Government of Kenya through the Ministry of Nairobi Metropolitan Development who jointly with Athi Water Services Board who will be responsible for its operation and maintenance. MoNMED shall be responsible for mobilization of financing from Ministry of Finance (MOF) for this RAP. MoNMED will request MOF to allocate funds for this RAP and will thereafter give the funds to NLC to compensate all the identified PAPs Roles Related to Implementation Arrangements The overall coordination of the implementation of the RAP will be provided by jointly by MoNMED and AWSB through the establishment of a RSIP/PIU, which will oversee all resettlement planning and coordinate all issues relating to the compensation. Given the importance of the activities under the various subcomponents, RSIP/PIU will collaborate with the County and Government falling within the project area in coordination and implementation. The joint RSIP-PIU It is the project-implementing agency for RSIP and one of the key roles of the PIU will be to ensure completion and implementation of the RAP. The RSIP/PIU will be also responsible for implementation of the RAP. Other roles for the PIU will include; Constitute the SCRCC and LRCCs and provide their operational budget; Collect all the needed documentation for compensation; Make funding request from MoNMED to undertake compensation of the PAPs; Compile all the grievances and document for future reference Send copies of all the documents to the MoNMED/AWSB; Besides this, RSIP/PIU will have overall responsibility of monitoring and evaluation of the resettlement process. Specialist consultants will support the RSIP/PIU, including: an M&E consultant to collect data to transfer to AWSB/MoNMED, which will be responsible for overall project M&E; and a social/environmental safeguards specialist for implementation of the RAP and Environmental and Social Management Plan (ESMP), working under the supervision of AWSB. (a) Public Participation with the PAPs This will initiate the compensation process as part of an ongoing process that would have started at the planning stages when the technical designs are being developed and at the land selection/screening stage. The process therefore seeks the involvement of PAPs in a participatory approach from the beginning. 106

107 RSIP Resettlement Action Plan Action Plan (b) Notification of land resource holders In cases where there is clearly no identified owner or user, the respective local authorities and leaders will notify the community leaders and representatives who will help to identify and locate the land users. These leaders and representatives will also be charged with the responsibility of notifying their members about the established cut-off date and its significance. The users will be informed through formal notification in writing and by verbal notification delivered in the presence of the all the relevant stakeholders. (c) Agreement on Compensation and Preparation of Contracts All types of compensation will be clearly explained to the individual and households involved. NLC jointly with the client will draw contracts listing all property and land being surrendered, and the types of compensation selected. The compensation contract and the grievance redress mechanisms will be read aloud in the presence of the affected party and the Local Community Elder prior to signing. (e) Compensation Payments All handing over of property such as land and buildings and compensation payments will be made in the presence of the affected party, RSIP/PIU staff, County Government representatives and local administration, representative of the PAPs and the community local leaders. Institutional Roles in Compensation NATIONAL LEVEL IMPLEMENTING AGENCIES National Land Commission The National Land Commission (NLC) is an independent constitutional agency that has statutory powers to undertake compulsory acquisition of private or community land for public purposes or public interest. It performs these functions on behalf of the national government and county governments. The specific powers and functions of the NLC are set out in the National Land Commission Act 2012, and the Land Act Key roles of NLC in the implementation of this RAP will include: Provide approval to request made by MoNMED to acquire land for RSIP; Notify landholders in writing of the intention to acquire land; Assist in resolving disputes related to compensation; Acquire land on behalf of MoNMED; Undertake public consultation on intended acquisition; Undertake actual payment of entitlement awards to PAPs 107

108 RSIP Resettlement Action Plan Action Plan The above roles have not been fully taken up by NLC as required by the Land Act 2012 because at the time of preparing this RAP, NLC had not yet been made fully operational. SUB COUNTY/DISTRICT LEVEL IMPLEMENTING AGENCIES Sub County Resettlement Compensation Committee In accordance with the RPF and to assist the smooth implementation of the RAP, Sub County Resettlement Compensation Committee (SCRCC) will be established at the district level to ensure participatory and transparent implementation of the RAP. The SCRCC will not engage in land acquisition or compensation, as this remains the prerogative of the NLC. The project is located in one district, Thika and thus will constitute the SCRCC. AWSB/MoNMED will help constitute the DRCC with the help of the NLC and Land Offices at the district level and the District Commissioner. SCRCC will help District Resettlement Compensation Committee carry out their mandates efficiently; particularly, ensuring effective communication between NLC with the affected communities. Members to SCRCC will include representation from the following agencies; The District Administration representative, who in this case will be the District Commissioner and will provide the much needed community mobilization, and support the project in the process of resettlement. The District Commissioner will chair the DRCC that will be established. A representative of AWSB/MoNMED as the implementing agency implementing the Project. District Land Survey Officer to help with survey works and demarcation of land to be acquired. The District Gender and Social Development Officer who will be responsible for livelihood restoration programs. The District Lands Registrar Office will help with validation and verification of the documentation provided by the affected persons. LRCCs PAPs representative introduced by the Location Resettlement and Compensation Committee act as voice for the PAPs. NGOs and CBOs locally active in relevant fields to ensure PAPs are assisted throughout the RAP implementation and help with the livelihood restoration, information dissemination, among other things. PAPs will elect their representative to SCRCC while the District Social and Gender Officer will identify an active NGO/CBO in the project area. The SCRCC will have the following specific responsibilities as regard implementation of the RAP: 108

109 RSIP Resettlement Action Plan Action Plan Ensuring effective flow of information between AWSB/MoNMED and PAPs Coordinate Locational Resettlement and Compensation Committees (LRCCs), validate inventories of PAPs and affected assets; Guide and monitor the implementation of relocation Coordinate activities between the various organizations involved in relocation Facilitate grievance and conflict resolution Assist with the livelihood restoration activities. Project Implementation Unit (PIU) The Project Implementation Unit is the project-specific office that has been set up to run the RSIP within MoNMED/AWSB. Its role is the day-to-day coordination and implementation of the RSIP project. They will therefore play an important role in the implementation of RAP and will ensure that the procedures and requirements of the Kenyan laws as well as the requirements under OP 4.12 are enforced. A key role will be to review this RAP and other resettlement-related documentation to ensure that all procedures have been adhered to and that there is consistency in approach between sub-projects. They will also undertake the main monitoring and evaluation role of resettlement activities during and post implementation. LOCAL IMPLEMENTING AGENCIES Resettlement and Compensation Committees Since Thika district sub county) is fairly large, further decentralized resettlement units will be formed in each location of the project affected area. Locational Resettlement and Compensation Committees (LRCCs), based in each administrative location affected by the project will be established. AWSB/MoNMED will constitute the LRCCs with the assistance of local administration. The LRCCs will work under guidance and coordination of SCRCC. LRCCs will be formed two to three weeks after the formation of the SCRCC. Their membership will comprise of the following: The locational Chief, who is the Government administrative representative at the locational unit and who deals with community disputes will represent the Government in LRCC Assistant Chiefs, who support the locational Chief and Government in managing local community disputes in village units, will form membership of the team. Female PAP, elected by women PAPs, will represent women and children related issues as regards resettlement and compensations Youth representative, elected by youths, will represent youth related concerns in the LRCCs Vulnerable persons representative, will deal and represent vulnerable persons issues in the LRCC. Business representative, will represent business people concerns 109

110 RSIP Resettlement Action Plan Action Plan Membership to LRCCs will be elected by each category of PAPs except the locational Chief and assistant chiefs who will automatic members of the team by virtue of their positions. Each LRCC will elect their chairperson and a secretary. The roles of LRCCs will include among others the following: Conducting extensive public awareness and consultations with the affected people. Help ensure that local concerns raised by PAPs as regards resettlement and compensation among others are promptly addressed by relevant authorities. Assist the effective working of RAP consultants in validation and updating of the RAP after the detailed design study is completed Resolve manageable disputes that may arise relating to resettlement and compensation process. If it is unable to resolve, help refer such grievances to the SCRCC. Ensure that the concerns of vulnerable persons such as the disabled, widowed women, orphaned children affected by the sub project are addressed. Help the vulnerable during the compensation and restoration for their livelihoods Ensure that all the PAPs in their locality are informed about the content of the RAP. Validate inventories of PAPs and affected assets; Monitor the disbursement of funds; Guide and monitor the implementation of relocation; Coordinate activities between the various organizations involved in relocation; Facilitate conflict resolution and addressing grievances; and Provide support and assistance to vulnerable groups. This committee meets on a regular basis (as determined by the needs of the project) to ensure that resettlement activities are appropriately designed and executed. A representative elected to act as the Project Liaison Officer acts as the key contact with PAPs and therefore facilitate implementation of consultation, public participation and grievance mechanisms Budget Table 29 below presents the estimated budget that RSIP commits to make available for the implementation of this RAP. Table 29: RAP Budget (Ksh) No Item Unit Unit Cost Quantity Total Cost Compensation for Loss of Income Ksh Variable 419 HH 16,722, CASH COMPENSATION Structures Residential /Commercial structures Unit 110, (HH) 6,660,

111 RSIP Resettlement Action Plan Action Plan Land Easement m2 93, Sub-Total Crops Annual crops Hectare 2,154,163.8 Sub-Total Unit Sub-Total LIVELIHOOD RESTORATION/DISTURBANCE 15% of total compensation 419 3,872,964.5 IMPLEMENTATION Consultants Lawyer Day 55, , Surveyor Month 30, , CONTINGENCIES 5% 2,782,302.6 GRAND TOTAL 30,192, *Land compensation is based on average price of land per m2 as determined by the Government Rates and compared with the market survey multiplied by number of hectares to be acquired from all affected households *Crop compensation is based on average existing market rates for different crops based on either a standing crop or size in terms of Ha 111

112 RSIP Resettlement Action Plan Action Plan 11.4 Implementation Schedule Tables 29 and 30 present the RAP implementation schedule from the 1st stage of planning (currently on-going) to the 2nd stage of implementation. 112

113 RSIP Resettlement Action Plan Action Plan Table 29: RAP Implementation Schedule 1st Part Planning and RAP Finalization MONTH 1 MONTH 2 MONTH 3 MONTH 4 No. TASK NAME RAP FINALIZATION 2. Census Finalization 3. Census Residences 4. Census Fields 5. Checks on Census 6. Release of Census results to communities 7. Information Management System 8. Consultant Mission 9. Inputing Data into new data management system 10. RESETTLEMENT DOCUMENTATION 11. Submission of RAP to World Bank 12. Review by World Bank 13. Update of RAP to include preparation and consultation progress 14. Submission and release of updated RAP Table 30: RAP Implementation Schedule 2nd Part RAP Implementation DURATION IN WEEKS No. TASK NAME RAP IMPLEMENTATION 16. Cash Compensation 17. Payment of compensation for crops and Easement 18. Payment of compensation for structures 113

114 RSIP Resettlement Action Plan Action Plan PHOTOGRAPH PLATES-This section has been deliberately left blank 114

115 RSIP Resettlement Action Plan Action Plan Houses in Project Site Housing Structures Pit with galvanized iron roofing Ancillary structure cow pen in project site Ancillary structures- made of sticks and iron roofing Ancillary structures- Prepared for: Ministry of Nairobi Metropolitan Development (MoNMED) and AWSB NAMSIP Project Kenya Plate 1: VILLAGE HOUSING AND RELATED STRUCTURES Prepared by: EMC Consultants, Nairobi, Kenya JUNE

116 RSIP Resettlement Action Plan Action Plan Mud and wattle house in the reservoir area Prepared for: Ministry of Nairobi Metropolitan Development/AWSB-NAMSIP Project Plate 2: VILLAGE HOUSING AND RELATED STRUCTURES Prepared by: EMC Consultants, Nairobi, Kenya JUNE