West Mainland Water Supply Project (WMWSP)

Public Disclosure Authorized

Resettlement Action Plan For Proposed Water Supply Pipeline, West Mainland, Mombasa

Public Disclosure Authorized County, Kenya.

Kenya Water Security and Climate Resilience Project (KWSCRP)

FINAL

Public Disclosure Authorized APRIL 2018

Phone: +254- 254-020-2102211 Public Disclosure Authorized Cell: + 254-0739 530 110 Email: [email protected] http://www.environmentalsafeguards.com

ISSUE AND REVISION RECORD:

KENYA WATER SECURITY AND CLIMATE RESILIENCE PROJECT (KWSCRP)

Resettlement Action Plan For West Mainland Water Supply Project (WMWSP)

Contract No.

EMPLOYER: Ministry of Water and Irrigation State Department of Water

CONSULTANT:

VERSION 02

RECORDS FOR REVISION VER.: DATE: DESCRIPTION/PURPOSE OF ISSUE: PREPARED CHECKED APPROVED BY: BY: BY:

02 23/1/2018 G.L Sakwa. RESETTLEMENT ACTION PLAN

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

CONTENTS ISSUE AND REVISION RECORD: ...... 2 CONTENTS ...... 3 ABBREVIATIONS ...... 8 GLOSSARY OF TERMS ...... 9 EXECUTIVE SUMMARY ...... 11 KWSCRP BACKGROUND ...... 11 WEST MAINLAND WATER SUPPLY PROJECT ...... 11 LOCATIONS OF PROJECT ...... 12 INFRASTRUCTURE COMPONENTS ...... 13 PROJECT COMPONENTS LEADING TO RESETTLEMENT ...... 14 RESETTLEMENT ACTION PLAN ...... 14 METHODOLOGY AND APPROACH ...... 14 INSTITUTIONAL AND LEGAL FRAMEWORK ...... 15 SUMMARY OF PROJECT IMPACTS...... 15 COMMUNITY PARTICIPATION AND CONSULTATION ...... 24 COMPENSATION PRINCIPLES AND COMPENSATION STRATEGY ...... 24 ENTITLEMENT FRAMEWORK ...... 25 LIVELIHOOD RESTORATION PROGRAM ...... 25 PRIORITY ACCESS TO CONSTRUCTION EMPLOYMENT ...... 26 CUT-OFF DATE ...... 26 VULNERABLE GROUPS ...... 26 VALUATION APPROACH ...... 26 Valuation Methodology ...... 26 GRIEVANCE REDRESS MECHANISM AND MANAGEMENT ...... 27 NLC GRIEVANCE AND APPEALS PROCESS ...... 27 RAP IMPLEMENTATION ...... 27 Resettlement Implementation and Compensation Unit ...... 27 BUDGET ...... 27 IMPLEMENTATION SCHEDULE ...... 29 MONITORING AND IMPLEMENTATION COMPLETION AUDIT ...... 29 1 INTRODUCTION ...... 30 1.1 KWSCRP AND WEST MAINLAND WATER SUPPLY PROJECT ...... 30 1.2 GENERAL OBJECTIVES OF KWSCRP NRW PROJECT ...... 32 1.3 PURPOSE AND JUSTIFICATION FOR THE WMWS PROJECT ...... 32 1.4 OBJECTIVES OF THE WMWS PROJECT ...... 33 1.5 LOCATIONS OF PROJECT ...... 34 1.6 INFRASTRUCTURE COMPONENTS ...... 34 1.7 PROJECT COMPONENTS LEADING TO RESETTLMENT ...... 35 1.8 SCOPE AND OBJECTIVES OF THE RESETTLEMENT ACTION PLAN ...... 35 1.9 POTENTIAL PROJECT IMPACTS ...... 36 1.10 ZONES OF POTENTIAL IMPACT OF PROJECT ACTIVITIES ...... 37 1.11 IDENTIFICATION OF THE PROJECT POTENTIAL IMPACTS ...... 38 1.12 MECHANISMS TO MINIMISE RESETTLEMENT/RESTRICTED ACCESS .... 38 2 METHODOLOGY AND APPROACH ...... 39 2.1 INTRODUCTION ...... 39 2.1.1 Literature Review ...... 39 2.1.2 PAPs Stakeholder Consultations ...... 39 2.1.3 Asset, Census and Socio-Economic Surveys ...... 40 2.1.4 Formulation of Survey Instruments ...... 40 2.1.5 Training of Asset Surveyors and Field Enumerators ...... 41 3

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

2.1.6 Delineation of Study Area and Identification of PAP ...... 41 2.1.7 Data Collection, Entry and Analysis ...... 41 2.1.8 Public Participation and Consultation ...... 42 2.1.9 Preparation of RAP Report ...... 42 3 SOCIO-ECONOMIC BASELINE ...... 43 3.1 INTRODUCTION ...... 43 3.2 POPULATION AND DEMOGRAPHY ...... 43 3.2.1 Demographics ...... 44 3.2.2 Ethnicity ...... 44 Mombasa County is a cosmopolitan county hence multi-ethnic...... 44 3.2.3 Religion ...... 44 3.2.4 Settlement Patterns ...... 44 3.3 EDUCATION ...... 45 3.4 HEALTH ...... 45 3.5 ENERGY SOURCES ...... 45 3.6 WATER SUPPLY ...... 46 3.6.1 Water Demand...... 47 3.6.2 Current Water Supply ...... 48 3.7 POVERTY, INCOME AND EMPLOYMENT ...... 48 3.7.1 Employment and unemployment ...... 48 3.8 GENDER ...... 49 3.9 TOURISM AND RECREATION ...... 50 3.10 GENERAL INFRASTRUCTURE ...... 50 3.11 SECURITY ...... 51 4 SOCIO-ECONOMIC CENSUS/PROFILE OF THE PROJECT-AFFECTED PERSONS 52 4.1 PROJECT-AFFECTED PERSONS ...... 52 4.2 SOCIO-CULTURE AND LIVELIHOOD ACTIVITIES ...... 52 4.3 PAP HOUSEHOLD DEMOGRAPHIC AND ORGANISATION CHARACTERISTICS 52 4.3.1 Gender and Age of PAPs ...... 52 4.4 EDUCATION AND LITERACY LEVELS OF PAPS ...... 53 4.5 LAND TENURE AND USE ...... 55 4.6 VULNERABILITY AMONG PAPS ...... 55 4.7 PAP HOUSEHOLD ACCESS TO SOCIAL SERVICES ...... 56 4.7.1 Access to Water Sources among PAPs Households ...... 56 4.8 HOUSEHOLD ECONOMIC STRUCTURE: OCCUPATIONAL AND LABOUR PROFILE OF PAPs 56 4.8.1 Occupational Status of PAP Household heads ...... 56 4.9 HOUSEHOLD ECONOMIC STRUCTURE: LIVELIHOOD SOURCES OF INCOME AND EXPENDITURE ...... 57 4.9.1 The PAP Household Income Levels ...... 57 4.10 PAP HOUSEHOLD EXPENDITURE LEVELS ...... 58 4.11 PAP HOUSEHOLD ENERGY SOURCE ...... 58 4.12 PAP Household Sanitation Facilities Used ...... 59 4.13 HEALTH AND DISEASE PREVALENCE ...... 60 4.14 GENDER ROLES AND PERCEPTIONS ...... 60 4.15 PAP HOUSEHOLD PROPERTY OWNERSHIP AND PERCEPTION OF WELLBEING 60 4.16 PROJECT IMPACTS: MAGNITUDE OF EXPECTED LOSS AND PREFERENCES 61 4.16.1 Magnitude of loss ...... 61 4.16.2 Preference for Compensation and Attitudes towards Relocation ...... 61 4.17 PREFERENCE FOR COMMUNICATION MEDIUM ON COMPENSATION .... 62

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

4.17.1 Household Perceptions in relation to project and to available compensation and resettlement options...... 62 4.17.2 Anticipated Impacts ...... 63 5 LEGAL, POLICY and INSTITUTIONAL FRAMEWORK ...... 64 5.1 NATIONAL RELEVANT LAWS ...... 64 5.2 THE KENYAN CONSTITUTION (2010) ...... 65 5.3 THE LAND ACT (2012) ...... 66 5.4 THE LAND LAWS (AMENDMENT) ACT 2016 ...... 66 5.4.1 Elements of Land Act 2012, 2016 ...... 66 5.4.2 The National Land Commission ...... 67 5.5 OTHER RELEVANT NATIONAL LAWS ...... 68 5.5.1 National Land Commission Act 2012 ...... 68 5.6 THE VALUERS ACT (1985) ...... 69 5.7 HOUSING POLICY ...... 70 5.8 EVICTIONS GUIDELINES 2010 ...... 70 5.9 SEXUAL OFFENSES ACT 2012 ...... 71 5.10 CHILD RIGHTS ACT 2012...... 72 5.11 LABOUR RELATIONS ACT 2012 ...... 72 5.12 MATRIMONIAL PROPERTY ACT NO 49 OF 2013 ...... 72 5.13 CONSTITUTIONAL PROVISIONS AND DISABILITY ...... 73 5.14 LAND ACQUISITION PROCESS IN KENYA ...... 74 5.15 WORLD BANK SAFEGUARD POLICY ON RESETTLEMENT ...... 78 5.16 DIFFERENCES BETWEEN KENYAN LAWS AND THE WORLD BANK POLICY 79 5.17 LAND TENURE AND RIGHTS IN KENYA ...... 86 5.17.1 Land Tenure Regimes and Administration ...... 86 5.17.2 Customary Land Tenure ...... 86 5.17.3 Freehold Tenure ...... 86 5.17.4 Leasehold Tenure ...... 86 5.17.5 Public Tenure ...... 87 5.17.6 Public Resources on Public Land ...... 87 5.18 INSTITUTIONAL RESPONSIBILITIES ...... 87 6 STAKEHOLDER CONSULTATIONS ...... 90 6.1 Community Members and Stakeholder Consulted ...... 90 6.2 COMMUNITY AND STAKEHOLDERS CONCERNS/VIEWS ...... 91 6.3 ISSUES RAISED BY PROJECT AFFECTED PERSONS ...... 93 7 PROJECT POSITIVE AND ADVERSE IMPACTS ...... 95 7.1 INTRODUCTION ...... 95 7.2 POSITIVE IMPACTS ...... 95 7.3 ADVERSE IMPACT ON LAND ...... 95 7.4 ADVERSE IMPACT ON TREES/CROPS ...... 96 7.5 ADVERSE IMPACT ON STRUCTURES ...... 96 7.6 ADVERSE IMPACT ON LIVELIHOODS ...... 96 7.7 IMPACTS ON PUBLIC AND COMMUNAL FACILITIES ...... 97 7.8 IMPACT ON SACRED SITES ...... 97 7.9 ANTICIPATED POST CONSTRUCTION IMPACTS ...... 97 8 VULNERABLE PEOPLE ...... 98 8.1 IDENTIFICATION OF VULNERABLE PEOPLE ...... 98 9 ENTITLEMENT STRATEGY ...... 100 9.1 ENTITLEMENT FRAMEWORK ...... 100 9.2 COMPENSATION PRINCIPLES ...... 100 9.3 ELIGIBILITY FOR COMPENSATION ...... 101 5

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

9.3.1 Eligibility For Compensation and ‘Cut-Off’ Date ...... 101 9.3.2 Eligibility ...... 101 9.3.3 Exclusion For Eligibility ...... 102 9.3.4 Ownership Category and Category of Losses ...... 102 9.4 FORMS OF COMPENSATION ...... 102 9.4.1 Cash Compensation ...... 102 9.4.2 Replacement In Kind ...... 102 9.4.3 Squatters ...... 103 9.4.4 Relocation of Graves/Shrines ...... 103 9.4.5 Vulnerable groups ...... 103 9.5 Strategy for Property and Livelihoods Income Restoration ...... 104 9.6 Cut-off Date ...... 105 9.7 PROPERTY VALUATION PRINCIPLES AND DETERMINATION OF COMPENSATION RATES ...... 111 9.8 FIVE METHODS OF VALUATION ...... 111 9.8.1 Cost Approach or Contractor’s Method ...... 111 9.8.2 Direct Comparison Method ...... 112 9.8.3 Investment Method — Income Approach ...... 112 9.8.4 Residual Method/Development Method ...... 112 9.8.5 Profits Method ...... 113 9.8.6 Choice of Valuation Methodology ...... 113 9.9 LAND VALUATION ...... 113 9.10 VALUATION OF PERMANENT STRUCTURES AND OTHER IMPROVEMENTS ASSETS 113 9.11 VALUATION OF CROPS AND TREES ...... 113 9.12 VALUATION OF BUILDINGS AND OTHER IMPROVEMENTS ...... 114 9.13 PUBLIC DISCLOSURE ...... 114 10 GRIEVANCES MANAGEMENT SYSTEM AND PROCEDURE ...... 115 10.1 GRIEVANCE PROCEDURE AND RATIONALE ...... 115 10.2 ALTERNATIVE GRIEVANCE REDRESS AND RESETTLEMENT COMMITTEES 116 10.2.1 First Level: Ward Level Grievance and Resettlement Committees ...... 117 10.2.2 Second Level: Sub County Resettlement Committee ...... 117 10.2.3 Third Level: County Resettlement Committee ...... 118 10.2.4 Fourth Level: Court System ...... 118 10.3 REDRESS PROCEDURE ...... 118 10.3.1 Communication of Grievance Procedures to PAP ...... 118 10.4 NATIONAL LAND COMMISSION GRIEVANCE MECHANISM ...... 120 10.4.1 National Land Commission (NLC) ...... 120 10.4.2 NLC Grievance and Appeals Process ...... 120 11 LIVELIHOOD RESTORATION PLAN ...... 121 11.1 LRP Aims and Program Identification ...... 121 11.1.1 Baseline Influencing Factors ...... 121 11.2 DESCRIPTIONS OF THE LIVELIHOOD RESTORATION PROGRAMS ...... 121 11.2.1 Provision of Financial Literacy Program (FLP) ...... 121 11.3 ENTREPRENEURSHIP DEVELOPMENT PROGRAM (EDP) ...... 122 11.4 LOCAL PROCUREMENT STRATEGY ...... 122 11.4.1 Vulnerability Assessments and Assistance ...... 122 12 RAP IMPLEMENTATION...... 124 12.1 INSTITUTIONAL ROLES IN COMPENSATION ...... 124 12.1.1 Ministry of Water and Irrigation ...... 124 12.1.2 County Government of Mombasa ...... 124 6

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

12.1.3 MOWASSCO ...... 124 12.1.4 KWSCRP/Coast Region Project Management Unit ...... 124 12.1.5 National Land Commission ...... 124 12.2 WMWSP RAP IMPLEMENTATION AND COMPENSATION UNIT (RICU) ... 125 12.3 RAP IMPLEMENTATION UNIT STRUCTURE ...... 125 12.4 ROLES RELATED TO IMPLEMENTATION ARRANGEMENTS ...... 126 12.5 ACTIVITIES TO BE COMPLETED PRIOR TO COMMENCEMENT OF COMPENSATION PAYMENT ...... 126 12.6 ACTIVITIES TO BE COMPLETED PRIOR TO COMMENCEMENT OF CIVIL WORKS 127 12.7 ACTIVITIES TO BE COMPLETED FOR COMPLETION OF ALL ACTIVITIES UNDER RAP/LRP ...... 127 12.8 COMPENSATION DELIVERY PROCESS ...... 128 12.8.1 Continued Public Consultations ...... 128 12.9 USE AND APPLICATION OF ENTITLEMENTS ...... 129 12.10 PAP EVACUATION TIMING ...... 130 12.10.1 Schedule of Implementation...... 130 13 MONITORING, EVALUATION SYSTEM AND COMPLETION AUDIT ...... 131 13.1 INTERNAL MONITORING BY KWSCRP ...... 131 13.2 FINANCIER OF THE PROJECT ...... 132 13.3 IMPLEMENTATION COMPLETION AUDIT OF RAP/LRP IMPLEMENTATION133 14 RAP BUDGET ...... 134 15 CONCLUSION AND RECOMMENDATIONS ...... Error! Bookmark not defined. 16 APPENDIX ...... 136 16.1 APPENDIX 1-PUBLIC CONSULTATION MINUTES ...... 137 16.2 APPENDIX 2-VALUATION ROLL ...... 138 16.3 APPENDIX 3-MAPS OF PROJECT ROUTING ...... 139 16.4 APPENDIX 4-SELECTED PHOTOGRAPHS ...... 140 16.5 APPENDIX 5-SOCIO-ECONOMIC ASSESSMENT QUESTIONNAIRE ...... 141 16.6 APPENDIX 6-GRIEVANCE REDRESS SAMPLE FORM ...... 142

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

ABBREVIATIONS CBOs Community Based Organizations CSO Civil Society Organizations CGM County Government of Mombasa ESIU Environmental and Social Interest Unit GO Grievance Officer GoK Government of Kenya GPS Global Positioning System GRMC Grievance Redress Management Committees KWSCRP Kenya Water Security and Climate Resilience Project MOWASSCO Mombasa Water Supply and Sewerage Company MOWI Ministry of Water and Irrigation LA Land Act M&E Monitoring and Evaluation MFIs Microfinance Institutions NGOs Non-Governmental Organizations NLC National Land Commission NRW Non Revenue Water NLP National Land Policy NMK National Museums of Kenya PA Project Area PAH Project-Affected Household PAIs Project-Affected Institutions PAP Project-Affected Person RAP Resettlement Action Plan RIU Resettlement Implementation Unit RPF Resettlement Policy Framework SPSS Statistical Package for Social Sciences WTP Water Treatment Plant

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

GLOSSARY OF TERMS Census: A field survey carried out to identify and determine the number of project-affected persons (PAP), their assets, and potential impacts; in accordance with the procedures satisfactory to the relevant government authorities, and the World Bank Safeguard Policies.

Compensation: The payment in kind, cash or other assets given in exchange for the taking of land, or loss of other assets, including fixed assets thereon, in part or whole.

Cut-off date: The date at which the property identification and valuation exercise started and the census of PAPs within the project area boundaries commenced. This is the date on and beyond which any person whose land is planned for and/or occupied for project use will not be eligible for compensation.

Project-affected persons (PAPs): Persons who, for reasons of the involuntary taking or voluntary contribution of their land and other assets under the project, result in direct economic and/or social adverse impacts, regardless of whether or not the PAPs physically relocate. PAPs can be through involuntary displacement and involuntary land acquisition.

Project-affected household (PAH): A household that is affected if one or more of its members is affected by sub-project activities, either by loss of property, land, loss of access, or otherwise affected in any way by the implementation of the project activities.

Project-affected sites: Clearly defined and/or surveyed areas or places earmarked for takeover, permanently or temporarily, for purposes of implementing project activities.

Involuntary displacement: The involuntary taking 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 or not the project-affected person has moved to another location.

Involuntary land acquisition: The taking of land by the government or other government agencies for compensation, for the purposes of a public project/interest against the will of the landowner.

Land: Agricultural and/or non-agricultural land and any structures thereon whether temporary or permanent and which may be required for the project.

Land acquisition: The taking of or alienation of land, buildings or other assets thereon for purposes of the project activities implementation.

Resettlement Action Plan (RAP): Also known as a Resettlement and Compensation Plan, a resettlement instrument (document) prepared when sub-project locations are identified and involves land acquisition which leads to or involves the 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 project owners (managers or their appointed representative) impacting on the PAPs and their livelihoods and contain specific and legally binding requirements for compensation of the PAPs before the implementation of such project activities.

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Replacement cost: The replacement of assets with an amount sufficient to cover full replacement cost of lost assets and related disturbance and transaction costs. In terms of land, this may be categorized as follows:

Replacement cost for agricultural land: The pre-project or pre-displacement, whichever is higher, value of land of equal productive potential or use located in the vicinity of the affected land, plus the costs of: • preparing the land to levels similar to those of the affected land; • any registration, transfer taxes and other associated fees.

Replacement cost for houses and other structures: The prevailing cost of replacing affected structures of the quality similar to or better than that of the affected structures in an area. Such costs shall include: • building materials; • transporting building materials to the construction site; • any labor and contractors’ fees; and • any registration costs.

Resettlement assistance: The measures to ensure that project-affected persons who may require to be physically relocated are provided with assistance such as moving allowances, residential housing or rentals, whichever is feasible and as required, for ease of resettlement during relocation.

Livelihood/Disturbance allowance: Part of resettlement and livelihood restoration assistance to PAPs whether they relocate or not. It is provided for under the Kenyan government legislation and has been considered under this RAP at 15 per cent.

Vulnerable PAPs: Socially and economically disadvantaged groups of persons such as widows, the disabled, very old persons or household heads who are likely to be more affected by project implementation or are likely to be generally constrained to access or seek out their entitlements promptly. Vulnerable households by implication also include: • Incapacitated households with no one fit to work owing to advanced/old age- associated incapacities, disabilities etc.; and • Child-headed households and street children.

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

EXECUTIVE SUMMARY This Resettlement Action Plan (RAP) has been prepared for West Mainland Water Supply (WMWSP) Project which is being funded by the World Bank to the Government of Kenya (GoK), Ministry of Water and Irrigation (MOWI), State Department of Water Storage through the Kenya Water Security and Climate Resilience Project (KWSCRP) and to be implemented by the Mombasa Water Supply and Sewerage Company (MOWASSCO) and County Government of Mombasa (CGM).

KWSCRP BACKGROUND The Government of Kenya through the Ministry of Water and Irrigation (MoWI) has received financing from the World Bank (IDA) in the form of a credit toward the cost of KWSCRP. Within the framework of the Kenyan Water Security and Climate Resilience Project Phase I (KWSCR-1) the Mwache Dam will be established in order to increase water supply for Mombasa County and expects to enter the first operating phase by the year around 2025. At that point the water supply to Mombasa County to be managed by the Water Service Provider MOWASSCO will be 100,000 m3 per day from Mwache Water Treatment Plant (WTP) increasing to 186,000 m3/day.

To enable the MOWASSCO to distribute the additional water from Mwache Dam to the customers and doing so enable Mombasa County to meet its financial obligations within the Mwache project, the KWSCRP-1 project supports MOWASSCO’s technical capability to distribute the water from Mwache Dam, to maintain the water infrastructure needed, to improve the billing and collection and to achieve and maintain a low level of Non-Revenue Water (NRW).

At the moment the water supply in Mombasa faces two major challenges: the current supply is insufficient to meet the current demand and overall Non-Revenue Water (NRW) is high due to a poor quality of the water infrastructure (physical losses) and commercial losses (insufficient billing and collection process). The planned Mwache Dam will significantly increase the supply but will create a new challenge: the capacity of the existing distribution system is unable to absorb the additional water of Mwache Dam and the quality of the existing network is poor. As a result, future demand is not met although supply increases and due the poor quality of the network NRW will go up.

The main focus of the projects within the framework of the KWSCRP program in Mombasa lays on the establishment and maintenance of an efficient water infrastructure capable of absorbing the supplied water to Mombasa and to achieve and maintain a low level of NRW. Also, the KWSCR-1 program seeks to bolster the institutional capacity and operational efficiency of MOWASSCO to improve its financial performance and improve billing and collection.

WEST MAINLAND WATER SUPPLY PROJECT The Kenya Water and Climate Resilience Program through the Ministry of Water and Irrigation, has received a grant from The World Bank and wishes to apply part of this grant in the construction of the West Mainland Water Supply Project (WMWSP) which involves among others; construction of pipelines, installing thrust blocks on pipelines, installation of water meters, valves, connections to other pipelines and construction of chambers for meters and valves in Mombasa County.

The objective of the Project is to expand access to, and improve the reliability of, water supply in West Mainland part of Mombasa County in order to decrease the incidence of water-borne and water- related diseases, generate time savings for households and businesses and reduce non-revenue water in the water supply network.

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

LOCATIONS OF PROJECT West Mainland as the name indicates is located to the west of Mombasa and one of the four zones earmarked for network development and Non-Revenue Water (NRW) reduction implementation. The other three zones are Likoni, North Mainland and Island. Each of these Zones is targeted in NRW reduction strategy which seeks to measure, monitor and evaluate how efficiently the utility delivers services based on set and agreed performance indicators. West Mainland consists of two constituencies Changamwe and Jomvu.

The project pipeline will pass through the following areas hence locations; 1. Jomvu 2. Miritini 3. Mikindani

Figure 0-0: Location of Project

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

West Mainland is considered the industrial hub of Mombasa as land for development of industries was restricted to west mainland. Large industries such as Kenya Ports Authority, Kenya Pipeline Corporation, Kenya Railway, Kenya Electricity Generation Company, Kenya Oil Refinery, Pwani Oil Production Company, Tsavo Power Company, Moi International Airport and Kipevu Power Station have led to fast growth and congestion. The fast growth and congestion has also been as a result of West Mainland adequately linked with road infrastructure.

Current water sources are the Mzima supplying between 25,000m3/d to 35,000m3/d and Marere springs supplying about 7,000m3/day. The average volume supplied to West Mainland is ranges from 15,700 m3/day to a total of around 5,800 active customers currently. It also augments supply to Mombasa Island.

The area has a population of about 250,179 based on the census in 2009. The supply is currently lower than the recommended standard by the Ministry Water Supply Manual of about 250 l/c/d, 150 l/c/d and 75 l/c/d for high, medium and low income dwellings in urban centres like West Mainland and Mombasa in general. Water supply to West Mainland is mainly supplied from two sources: -

• Mzima springs which are recharged from rainfall on the Chyulu Hills, are located in the Taita Taveta County. Through 800 mm concrete pipe water from this source terminates at reservoirs located at Mazeres before further supply to West Mainland by gravity; • Marere springs located in the foot of the Shimba Hills Game Reserve in Kwale County. Currently production is about 7,000m3/day of which a part is supplied to Mombasa.

The water sources are connected to West Mainland by three pipelines: • DN600 and DN525 parallel pipes of concrete material form the transmission mains from the Mazeras reservoir; DN500 steel transmission main from the Marere headworks. INFRASTRUCTURE COMPONENTS The design of the distribution network of West Mainland is based on new pipelines, existing distribution network in good condition, strategic interconnections between these two systems and also revised interconnections within the old system. The approach is based on:

• The existing network being quite extensive and of reasonable quality and will therefore form an integral part of the future network; • Coverage of the network is however limited to mainly the south west and spotted sections in the north and south east. The revised network extends the network extensively in these limited areas with existing habitations and provisions made for planned developmental areas, provide structure for the network in view of additional supply capacity being made available; • Increase in capacity to meet demand of 2035

The network designing encompasses demand estimation and forecasting, network structuring and expansion (including major transmission lines), DMA designs all other associated tasks.

An Epanet model was built to evaluate the performance of the whole system: • Network routing has been based a detailed aerial map prepared in April 2015; • Elevation data also obtained from a digital elevation map prepared in April 2015; • Darcy-Weisbach equation is applied in the hydraulic analysis.

The final pipelines are subdivided based on functionality:

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

1) Primary pipeline: These form the backbone of the supply network. Diameters vary from 150 to 900 mm with a total length of approximately 106 km with 39 km being newly designed lines; 2) Secondary pipeline: connection between the primary lines and the DMA’s. These ensure minimal takeoffs from the primary lines, maintains network structure and ease of segmenting the network into smaller discreet areas. Pipe diameters range from 150 to 250 mm and pipes not classified as primary. The secondary lines are approximately 81 km with 36 km being newly designed lines; 3) Tertiary pipeline: Pipelines providing final supply to the consumers. Diameters vary from 110 mm to 50 mm with a total length of approximately 118 km with 47 km being newly designed lines.

Box 0-1. Definition of DMA DMA stands for "district metered area". It describes a hydraulically isolated sub-zone in a distribution network for which the water consumption is monitored by water metres. For basic pressure management or more advanced modulating pressure management, water suppliers create a network of District Metered Areas (DMA’s) or smaller, more manageable pressure management zones. The DMA or pressure zone gives the ability to measure flow and control pressure, when a Pressure Reducing Valve (PRV) or Automatic Control Valve (ACV) is installed at the takeoff of the DMA from the Main Distribution line.

PROJECT COMPONENTS LEADING TO RESETTLEMENT The construction which entails excavations and laying of primary, secondary and tertiary pipelines as described above require land and therefore will lead to displacement (physical and economic) of the PAPs who are located in the pipeline routing. The land required for the pipelines are as follows:

Table 0-1: Land size by pipeline type Line Type Land Size Needed Primary pipeline 3-6metres depending on pipe diameter (900mm-400mm) Secondary pipeline 2-metres deepening on pipe diameter (400mm-150mm) Tertiary pipeline 1meter deepening on pipe diameter (150mm-50mm)

RESETTLEMENT ACTION PLAN This RAP has been prepared in the light of and is consistent with the policies and processes detailed in the Resettlement Policy Framework (RPF) for the Kenya Water Security and Climate Resilience Project (KWSCRP). Therefore, the mitigations proposed to address the impacts on people and properties are in line with the laws and legislation in Kenya as well as the World Bank's Policy on Involuntary Resettlement, OP 4.12.

METHODOLOGY AND APPROACH The main objectives of the RAP envisage the following: • Involuntary resettlement should be avoided where feasible, or minimized, by exploring all viable alternative project designs. • Avoiding displacement of people without a well-designed compensation and relocation process; minimizing the number of PAPs, to the extent possible; • Where it is not feasible to avoid resettlement, resettlement activities should be conceived and executed as sustainable development programs, providing sufficient mitigation measures. Including compensating for losses incurred in terms of land, structures, trees and crops and 14

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

displaced incomes and livelihoods; • Affected people should be assisted in their efforts to restore their livelihoods and improve their livelihoods and standards of living, or at least to restore them, in real terms, to pre- displacement levels or to levels prevailing prior to the beginning of project implementation, whichever is higher. • Affected people should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs. • Ensuring resettlement assistance or rehabilitation, as needed, to address impacts on project affected people’s (PAPs) livelihoods and their wellbeing; • Gender development by creating employment through the project in order to empowering women;

The study comprised of an extensive review of relevant documents, community sensitization and consultation, census and asset inventory survey, socio-economic survey, and collection and establishment of values for compensation of various types of assets. These activities took place from May-August 2017.

INSTITUTIONAL AND LEGAL FRAMEWORK The RAP has been prepared in compliance with the requirements of the relevant national legislation of the Republic of Kenya as well as the World Bank Involuntary Resettlement Policy (OP 4.12). Key legislation applicable to land management and expropriation in Kenya that were reviewed includes:

− Land Laws Act (2012) − Land Laws Act (amendments) (no. 28 of 2016) − Land Registration Act (2012) − Valuers Act (1985) − National Land Commission Act (2012) − The Constitution of Kenya, 2010 − The Roads Act (2007) − Eviction Guidelines (2010) − Housing Policy − County Government Act

SUMMARY OF PROJECT IMPACTS Access to water: A direct future positive impact will be improved water supply in urban and rural areas when the corresponding water distribution network is expanded. It will result in increased and constant supply of safe water, thereby leading to enhanced people’s health and ultimately enhancing people’s involvement in economic activities. At the project level, there would be work opportunities for unskilled labor in the project areas, thereby providing an opportunity for supplementing their income.

Economic Development: The Project provides great potential for long-term economic benefits, through the creation, diversification and growth of income-generating activities, to increase food security and reduce poverty in the area. This potential will present itself through: An improved, regular water supply; easy access to a potable water source; Improved agricultural production; The potential for creating new economic opportunities; Higher incomes and improved employment opportunities may attract emigrants from the area to return to their families, re-introducing skills into the area, and establishing a more settled home environment. Other economic benefits will become evident through in-migrants creating a buyer’s market for local goods and services; sale of land to those affected; and 15

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

the potential for other the potential for other opportunities presented by the Project.

Employment: During the construction, jobs will be created in view of the skilled and unskilled labor force needed in excavations and laying of the pipelines. This will lead to job creation and boosting the economy. There will be a Labour Recruitment Plan to be developed by contractor which must emphasize the need for hiring locals as much as possible.

Gender parity: The provision of water to the local population will reduce gender parity in the sense that availability of water in the houses, reduced the work burden on women and lost time in searching for water.

The activities highlighted in the scope of works above will take place within privately owned land that will have to be acquired. There are also formal commercial and residential buildings on the route, which will be partially or permanently affected. The project will therefore lead to economic and physical displacement of PAPs who are categorized as land owners, structure owners, crop and tree owners and squatters. Table 0-2: Summary of the affected persons and the cost

Description Impacts in Quantity Total Number of PAPs 174 Number of households who lose commercial structures on formal land 2 Number of households who lose residential structures on formal land 0 Number of PAPs losing land only 3 Number of squatters (Mobile traders) with movable and temporary fixed commercial structures 169 Number of squatters with residential structures 0 Number of institutional buildings affected fully 0 Number of institutions to be partially affected 0 Loss of land permanently in Acres 0.53 Total number of affected persons 174 Cost of RAP Kshs. 5,271,750.00

The impacts will mostly be felt around the following areas as shown in the tables below namely:

Table 0-3: Affected Locations Project Affected Areas Mikindani Jomvu Miritini

The project will affect a total of 174 PAPs along the proposed pipeline project route. A summary of project impacts in terms of number of PAPs affected by zone/area is presented in Table 0-4 below.

Table 0-4: Number of Project Affected Persons Area Category of PAP # of PAP

Mikindani Structure Owners (squatters) 57 Structure Owner (not a squatter) 1 Public Institutions 0

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Graves 0

Jomvu Structure Owners, (squatters) 65 Structure Owner (not a squatter) 1 Public Institutions 0 Graves 0 Public Institutions Miritini Structure Owners, (squatters) 47 Land owners 3 Public Institutions 0 Graves 0

TOTAL 174

Table 0-5: Size of Affected Land Parcels LOCATION AND VILLAGE SIZE OF LAND PARCELS (Acres) Miritini 0.53 Total Affected Land Size 0.53

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 0-1: Project Coordinates and cadastral parcels

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 0-6: Entitlement Matrix Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) A. PRE-CONSTRUCTION STAGE LAND ACQUISITION Agricultural, commercial, Land owner Owner PAP Land for land, if available In case of provision of alternative land, cost Technical support for Residential Private of registration/ transaction costs will be judicious utilisation of (freehold/ leasehold) added; and compensation money Customary b) Financial compensation for land at replacement cost received e.g. (according to the prevailing market prices of the land in Support will be provided by the community the affected areas). Compensation for total loss of land if leaders/district councils in identification of 1.Financial/cash management greater than 20% or remaining land/asset is not viable. alternate land cost of labor for preparing training. agricultural land c) Disturbance allowance of 15% of the value of land lost 2.Sensitization on investment will be provided to those who do not get land for land, In case of payment of replacement costs the options. irrespective of the size of land. payment of replacement costs shall consider: 3.Trainings on Agriculture d) In case of severance of cultivable land by access To arrive at a full replacement cost of land improvement programs. roads an additional grant of 10% of the land value to the value of labour invested in preparing cover the costs of clearing and preparing replacement agricultural land will be compensated for agricultural land. using wage for the same period of time.

e) Compensation for the standing crops/ damaged The labour 10% will be calculated based on during the construction period shall be paid at market the compensation sum for the lost land. This value. is intended to help a farmer to create replacement land i.e. clearing, ploughing, f) Transaction costs, including transfer or registration of sowing, weeding etc. titles and taxes to be borne by the project within one year from the time compensation is paid. Tenant Tenants/ Renter Compensation for standing crops shall be paid at market Compensation for standing crops damaged 1.Financial/cash management farmers value. during the construction period shall be paid at training. market value. 2.Sensitisation on investment Cost of clearing and preparing replacement options. agricultural land. 3.Trainings on agriculture improvement programs. LOSS OF STRUCTURE Residential Dwelling PAP / a) Replacement cost of structure without depreciation. Cash compensation would be payable for Financial / cash management owner Household b) Lump-sum shifting allowance up to 10% of the those losing main dwelling houses or parts of training. compensation sum. residential structure such as Toilet, kitchen, shed Monitoring mechanism at main stages of construction of dwelling unit. Renter/Tenant PAP / a) In urban areas, reimbursement for unexpired tenancy / 1.Proof of a formal tenancy agreement has to Household lease period or the amount of deposit or advance paid by be provided. In the absence of a formal the tenant to the landlord or the remaining amount at the agreement, a month rent will be provided. time of expropriation. 19

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) Note: Amount will be deducted from the b) Lump-sum transport allowance up to 10% of the compensation payable to structure owners compensation sum. Any other structure on Structure PAP/Affected a) Replacement cost of structure without depreciation. Compensation for the permanent crops / affected plot (including Owner Entity damaged during the construction period shall home garden) /Unauthorized b) Right to salvage materials from the existing structure, be paid at market value. Occupant even if compensated. (Encroacher or c) Replacement for permanent crops in home gardens. Squatter) Toilets, bathrooms, Structure PAP/Affected a) Replacement cost of structure without depreciation. Owner Entity /Unauthorized b) Right to salvage materials from the existing structure, Occupant even if compensated. (Encroacher or Squatter) Loss of permanent Business PAP / Business a) Compensation at full replacement value for immovable a) Cash compensation would be payable for Owner Entity assets including commercial plots associated with the those losing structures and lost business. Business Structure /Structure structure. Movable Business Owner b) Cash management training. Structure b) Compensation for loss of income for the period of the time required to re-establish the business – 3 months c) Other Business options. income within a maximum of one year.

c) Shifting allowance (cost for shifting and reestablishment of the business plus all other related costs).

d) Compensation for loss of income for the period of time required to re-establish the business – 3 months income within a maximum of one year.

e) Replacement cost of structure without depreciation.

f) Lump-sum shifting allowance of 10% of the compensation sum.

g) Allowance for loss of profit per month (between 1-3 months by type of structure and nature of business)

h) Right to salvage materials from the existing structure. Tenant/Renter/ Tenant / Renter Reimbursement for unexpired tenancy/ lease period or the Proof of a formal rental agreement has to be 20

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) business with proof of amount of deposit or advance paid by the tenant to the provided. owner tenancy / landlord or the remaining amount at the time of Leasing or in expropriation. Note: Amount will be deducted from the absence Allowance: three months’ profit for the transition compensation payable to land owners. of formal period. agreement, identification Lump-sum shifting allowance of: 10% of the through compensation sum. premises owner. CROPS AND TREES Trees and perennial Crop / trees Owner PAP, a) The valuation of perennial crops will be based on the The highest market price/kg and expected life Crop / tree owner may, if crop Owner Affected Village product of their average yield (kg/tree/year). span plus establishment cost will be (in case of considered. possible, dig up tree and natural growing b) The valuation of fruit trees will consider the time trees). between planting and bearing of fruits. move elsewhere/sell (where possible given type of tree). c) Valuation will be based on the product of yield, period between planting and bearing of fruits and market price. 2. Advance notice to be given for farmers to harvest or

d) Input costs remove standing crops / trees.

3. Technical support for judicious utilisation of compensation money received, e.g. financial / cash management training sensitisation on investment options. Annual crops Compensation will be based on the average market unit The yield shall be the highest yield of that price of the crop over a period of the past three years particular crop as determined by the Ministry multiplied by the yield /kg and multiplied again by the land of Agriculture. size. OR

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) on agricultural land) employees Preference in provision of Work opportunities in the Unskilled labor compensation money within project during the construction stage and later if any received, e.g. financial/cash. shop/business/ available commensurate to his/her existing skill/education industries) levels. Management training, Livelihood sensitisation on investment loser. b) Transition Allowance: options.

c) Vocational / skill improvement as per choice (to cover Development assistance e.g. all related costs such as, transportation, per diem for training if no longer able to number of days). farm, to facilitate livelihood restoration up to pre-Project conditions and related monitoring. Additional support to Owner PAP or Head of Financial compensation of loss of income incurred as a Cash compensation on temporary basis Technical support for vulnerable groups the Household result of the Project (note that this is temporary judicious utilisation of assistance). compensation money received e.g. Financial / cash Compensation for assets that can no longer be used at management training, fair market value. sensitisation on investment options, facilitate livelihood restoration up to pre- Project conditions and related monitoring.

Development assistance e.g. training, business development services, access to microfinance DURING CONSTRUCTIONS Loss of access due to Village Village Provision of alternate access. Provision of access path(s), wooden planks, Public notices to be issued construction works. Community / community etc. prior to construction works. Urban dwellers Damage to standing crops PAP, Village PAP, Village To be undertaken on a case by case basis. PAP to report to Village level Resettlement during construction due to Community Community Grievance Management Committees to movement of machinery, Urban dwellers Structure owner Excavations for pipe laying to be done during non- resolve issues. damage to frontages cropping (footpaths) during laying of season. Cost shall be determined based on the pipelines. requirement quantity of concrete for To be undertaken on a case by case basis and repair rebuilding the footpath. the damage. 22

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) Temporary and unforeseen Affected PAP / Mitigation in line with principles in the Resettlement Unforeseen and temporary impacts during impacts. Person or Household / Policy Framework (RPF). construction will be documented and dealt Village Village with on a case by case basis through the Community Grievance and Resettlement Management Committees / in accordance with the principles above.

West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

COMMUNITY PARTICIPATION AND CONSULTATION The Consultant’s RAP team undertook public consultations with the Project Affected Persons (PAPs) to ensure that the Project activities and the likely impacts on the local people and their livelihoods were explained and openly discussed. Three (3) community meetings and one institutional consultation were conducted in the project area between 9th May and 17th May 2017.

Stakeholders consulted during the study included the Project Affected Persons (PAPs), local village communities, county officials, ward administrators. The objectives of these consultations were to identify PAPs and to increase their general awareness about the Project and the RAP process. Consultations also explained the nature, extent, limit, and method of compensation.

Table 0-8: Community Consultations DATES VENUE #.OF PARTICIPANTS 9th May 2017 Mikindani Bus Stage 71 15th May 2017 Miritini Bus Stage 53 17th May 2017 Jomvu – Next to Total Fuel Station 43

Table 0-9: Consultation with Institutions DATE VENUE # OF PARTICIPANTS 15th May 2017 Deputy County Commissioner’s Office – Mikindani – 7 Jomvu Sub-County

COMPENSATION PRINCIPLES AND COMPENSATION STRATEGY The RAP aims to ensure that all affected parties are compensated and assisted in restoring their livelihoods.

Overall objectives of the RAP are: • Avoid or at least minimize adverse impacts including physical and economic displacement • Mitigate adverse social and economic impacts from land acquisition by: • Providing compensation for loss of assets at replacement cost; and • Ensuring that resettlement activities are implemented with appropriate disclosure of information, consultation, and the informed participation of those affected, and • Improve or at least restore the livelihoods and standards of living of affected people. • Provide additional targeted assistance (e.g., credit facilities, training, or job opportunities) and opportunities to improve or at least restore their income- earning capacity, production levels, and standards of living to economically displaced persons whose livelihoods or income levels are adversely affected; • Provide transitional support to affected people, as necessary, based on a reasonable estimate of the time required to restore their income earning capacity, production levels, and standards of living.

The key principles of this RAP are the following: - • Compensation and resettlement of project-affected people will be carried out in compliance with Kenyan legislation and WB OP 4.12; • Where Kenyan legislation is less favorable to PAPs than WB OP 4.12 requirements or does not apply at all, the latter shall apply;

24 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• All physically and economically displaced people will be offered an option between either a full resettlement package, including the provision of replacement of structures or cash compensation; • The Project will provide for measures to support sustainable use of cash compensation (money management training) and for mechanisms within the overall monitoring framework to follow up the use of cash compensation; • The Project will assist PAPs in restoring their affected livelihoods and will provide transitional assistance in order to restore livelihoods to at least their previous level • The Project aims to turn PAPs to Project beneficiaries; targeted livelihood restoration programs will be implemented as part of this RAP in order to achieve this goal • The RAP implementation and–outcomes will be monitored and evaluated as part of a transparent process. The RAP proposes that MOWASSCO conducts RAP Completion Audit and further engages an external consulting firm to monitor the RAP implementation.

The compensation assessment procedure proposed in this RAP is in line with the Land Act 2012 and National Land Commission (NLC) Act that puts into operation the constitutional provisions on land and also complies with the provisions of the World Bank Safeguard Policy 4.12 on Involuntary Resettlement.

All the PAPs, irrespective of their legal status, have been identified and are eligible for some form of compensation if they occupied the land, owned property or operated a livelihood activity within areas earmarked for project activity implementation at the ‘cut-off date’ which has been taken as 25th May 2017. The proposed RAP resettlement strategy is adequate and ensures prompt monetary compensation and resettlement assistance, including a livelihood/disturbance allowance; and specialized assistance to vulnerable PAPs.

ENTITLEMENT FRAMEWORK The Project will acquire a range of privately owned assets and communal resources for which appropriate compensation and/or mitigation measures are required. The RAP proposes the types and levels of compensation and other resettlement and supplementary measures that will assist each category of eligible-affected people, and at the same time achieve the objectives of national legislation and policies, and World Bank requirements. Key components include: -

• Eligibility criteria: Those who will be affected directly by resettlement and are eligible for compensation and other assistance require definition and identification, with criteria set for determining their eligibility.

• Compensation Entitlement Framework: The objective of relocation, compensation and other rehabilitation measures is to mitigate for, and manage, the negative impacts of the involuntary resettlement aspects of the Project.

LIVELIHOOD RESTORATION PROGRAM The LRP has been structured to enhance livelihoods of the PAP by ensuring judicious usage of compensation payouts, encouraging contractors to provide available work opportunities on a preferential basis to unskilled labor and providing support through training programs offered by institutions located in the project area and/or through a livelihood support partner to the RAP implementation agency. Affected households are entitled to participate in and to benefit from the targeted set of livelihood restoration programs, which were developed for this RAP:

25 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

PRIORITY ACCESS TO CONSTRUCTION EMPLOYMENT • PAPs will be provided with priority consideration for construction employment as part of compensation and livelihood restoration measures.

CUT-OFF DATE • The cut-off date for this RAP was communicated to the affected communities during the fieldwork between May and June 2017. The cut-off dates are the respective dates of commencement of census survey in the affected project area which is 25th May 2017. The cut-off date was communicated orally in the public barazas after completion of the census survey and asset inventory in the presence of the local chiefs.

VULNERABLE GROUPS Vulnerable PAPs are defined as individuals, groups, households, or communities who by virtue of gender, locality, age, physical or mental disability, economic disadvantage, or social and cultural status who may require additional support or assistance and will need help adjusting to changes introduced by the Project. Assistance will take the following forms, depending on vulnerable people’s requests and needs:-

a) Assistance in the compensation payment procedure; b) Assistance in the post payment period to secure the compensation money; c) Assistance in moving: providing vehicle, driver and facilitation at the moving stage, providing ambulance services for disabled or inform persons during moving, and; d) Health care if required at critical periods; e) Priority in processing disbursement of compensation packages f) Moving and transition support or allowance during the relocation period. g) Priority in allocation market stalls preferably ground levels for the disabled

In the context of the Project, vulnerable people identified included: • Widows • Orphans • Physically challenged • Elderly PAPs living alone • Single parent • Chronically sick PAPs

VALUATION APPROACH The valuation methods used in this RAP is the replacement cost approach sometimes referred to as the contractor’s approach or contractor’s test and is used mainly to value individual structures and machinery. All components of the impacted structure must be compensated for on a material by material basis. The data to come up with unit costs is normally obtained from hardware shops, quantity surveyors, contractors, government departments, and other sources as necessary. The costs for building components, such as floors, roofing, and walling are expressed as cost per square meter. Different materials used in building one component have their own material unit cost. Percentage or lump-sum adjustments for features not included in comparative unit cost may be made with the unit-in-place method.

Valuation Methodology 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. Valuation method used was “replacement cost”.

26 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

GRIEVANCE REDRESS MECHANISM AND MANAGEMENT

A Grievance Redress Mechanism (GRM) will comprise of three levels or tiers to handle grievances. The first level would be Ward Grievance Management Committee (WGMC) at each ward where the project traverses, while the next or second level would be at the sub County Level, Sub Grievance Management Committee (SCGMC). The third level will be at the County level, County Grievance Management Committee (CGMC). Membership of the committees will vary by project area. The Grievance redressed procedure will comprise of time bound steps, i.e. from lodging of the Grievance at VGMC and then recorded in the Grievance Form, to its redressed either at the next levels and eventually at the court of law. The total time taken for redressed of grievances would be 10 days. If the affected person is not satisfied with the decision of the CGMC, they will be informed of their rights to take the grievance to the court of law, as a last resort. The management committee members will be elected publicly by the PAPs in a forum facilitated by the KWSCRP and local administration. However, the complainant will also be informed that to do so will be at their own expense, unless the court awards damages to the complainant. The decision of the court of law will be final.

NLC GRIEVANCE AND APPEALS PROCESS The NLC has a grievance redress process mainly triggered at the time of award of compensation following public hearings. If a PAP is dissatisfied with the awards given by NLC, they have a right to appeal and NLC would look into the matter and determine justification. In the event that a PAP is not satisfied with the appeal made to NLC and the resolution thereof, then dispute is resolved by resorting to the legal justice system where PAP could go to the environment and land court.

RAP IMPLEMENTATION Resettlement Implementation and Compensation Unit a) MOWASSCO’s office will serve as resettlement implementing and compensation unit (RICU) for the RAP, with a team purely dedicated staff to carry out the respective activities, and coordinating with County Government of Mombasa, KWSCRP and NLC. b) MOWASSCO will operate from their main office and visit the project site on a daily basis or as frequently as desired as a way of interaction with the project affected people, contractor and ensuring direct cooperation with the County Government. c) MOWASSCO will assign a social specialist and surveyor dedicated to this project and who will be the focal points and coordinators with respect to the RAP implementation d) The supervising consultant and the works contractor will also each have full time social specialists who will work jointly with MOWASSCO and other stakeholders in the implementation of the RAP. e) KWSCRP/PMU Coast regional office will support the RAP implementation through its full time social safeguards specialist based in Mombasa.

BUDGET The total cost of RAP Implementation is based on the following components:

Compensation for impacted assets a) Private and community owned with topping up allowances; b) Disturbance allowances c) Shifting allowances for those relocating from their original location to alternate site; d) Livelihood support to economically vulnerable households. b) Administrative costs • Cost of RAP/LRP Implementation Agent; • Cost for M&E Agency

27 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

c) Costs for implementing LRPs • Financial Literacy Trainings • Entrepreneurship Development • Skills and Employment program

Table 0-8 Mikindani Area ITEM COST(Kshs) Structures 3,085,000.00 Trees and Crops 00.00 Business 168,000.00 Total Amount 3,253,000.00 Table 0-9 Jomvu Area ITEM COST(Kshs) Structures 150,000.00 Trees and Crops 00.00 Business 198,000.00 Total Amount 348,000.00

Table 0-10 Miritini Area ITEM COST(Kshs) Land 150,000.00 Structures 00.00 Trees and Crops 13,000 Business 141,000,00 Total Amount 304,000.00

Table 0-11: Total Compensation For Trees and Crops Total Cost Kshs. 13,000.000

Table 0-12: Total Compensation For Structures Number of Structures Replacement Value (Kshs)

Grand Total Kshs. 3,235,0000.00

Table 0-13: Total Compensation For Business Grand Total Kshs. 507,000.00

Table 0-15: Other Compensation Aspects Disturbance Allowance (15% of Total Budget) Kshs. 585,000.00 Grand Total Kshs. 585,000.00

Table 0-16: RAP Implementation Costs Aspect Value (Ksh) Financial/Money Management Training/ Meetings of Resettlement 292,875.00 Committees/Administrative Costs External Monitoring and External Coordination for RAP Implementation 292,875.00 Grand Total 292,875.00

28 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 0-17: Total RAP Budget

Total RAP Cost Kshs Land 150,000.00 Structures 3,235,000.00 Crops & Trees 13,000.00 Businesses 507,000.00 Sub Total 3,905,000.00 Disturbance Allowance (15%) 585,750.00 Other Compensation Costs 585,750.00 Contingency (5%) 195,250.00 Grand Total 5,271,750.00

IMPLEMENTATION SCHEDULE The activities related to construction of Project are expected to commence in April 2018 by which time the PAPs are expected to have moved from the site. It is expected that before March 2018, 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.

Table 0-18: Total RAP Budget Implementation Schedule for the RAP (Indicative Timelines) Project Activities Weeks-Timeline 1 2 3 4 5 6 7 8 9 10 11 12 RAP approval (WB) RAP disclosure Establishment and Training of GRM Committee 1 months’ notice to PAHs Relocation of PAHs Grievance management Compensation payment RAP monitoring RAP completion and audit

MONITORING AND IMPLEMENTATION COMPLETION AUDIT In order to track progress, highlight bottlenecks, and redress the issues effectively and in a timely manner and project milestones are met as per schedule; it is proposed that KWSCRP/PIU will undertake concurrent internal monitoring. Further, an exercise would be carried out at the end of the RAP implementation period to ascertain if, indeed the planned activities did enable achievement of the originally set objectives, i.e. whether RAP objectives were met, including whether livelihoods and living standards of PAP were restored to pre-project status or enhanced. For this purpose, KWSCRP/PIU will contract a qualified external agency/firm to conduct an Implementation Completion Audit for the RAP/LRP.

29 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

1 INTRODUCTION

1.1 KWSCRP AND WEST MAINLAND WATER SUPPLY PROJECT The Government of Kenya through the Ministry of Water and Irrigation (MoWI) has received financing from the World Bank (IDA) in the form of a credit toward the cost of Kenya Water Security and Climate Resilience Project (KWSCRP-project). Within the framework of the Kenyan Water Security and Climate Resilience Project Phase I (KWSCR-1) the Mwache Dam will be established in order to increase water supply for Mombasa County and expects to enter the first operating phase by the year around 2025. At that point the water supply to Mombasa County to be managed by the Water Service Provider (Mombasa Water Supply and Sewerage Company, MOWASSCO) will be 100,000 m3 per day from Mwache Water Treatment Plant (WTP) increasing to 186,000 m3/day.

To enable the Water Service Provider MOWASSCO to distribute the additional water from Mwache Dam to the customers and doing so enable Mombasa County to meet its financial obligations within the Mwache project, the KWSCR-1 project supports MOWASSCO’s technical capability to distribute the water from Mwache Dam, to maintain the water infrastructure needed, to improve the billing and collection and to achieve and maintain a low level of Non-Revenue Water (NRW).

The main focus of the projects within the framework of the KWSCRP in Mombasa lays on the establishment and maintenance of an efficient water infrastructure capable of absorbing the supplied water to Mombasa and to achieve and maintain a low level of NRW. Also, the KWSCR-1 program seeks to bolster the institutional capacity and operational efficiency of MOWASSCO to improve its financial performance and improve billing and collection.

Main objectives: • Improve the water absorptive capacity of Mombasa County. • Reduce Non-Revenue Water in Mombasa County • Strengthen the institutional capacity of MOWASSCO, in view of the anticipated increase in water availability. • Improve the quality and sustainability of water services by providing capacity building, organizational development, and technical support to MOWASSCO

To achieve these objectives, the following key activities are and will be undertaken within the framework of the KWSCRP Program and WOP Program: • A comprehensive survey of the existing Water Infrastructure in County Mombasa through physical survey inspection and mapping and updating current GIS in Zones (West-Mainland, Likoni, North-Mainland and Island). • The introduction of a District Metering Areas (DMA) approach based on IWA guidelines. • A comprehensive and detailed design of the Water Infrastructure needed for all 4 Zones looking at future water supply (e.g. Mwache dam), demographic developments, industrial developments, etc. and considered the existing Water Infrastructure.

30 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• The rehabilitation and extension of the primary, secondary and tertiary water infrastructure using District Metering Areas (DMAs) / Metering Zones; • The rehabilitation and expansion of the existing primary and secondary water distribution network of Mombasa County; • A complete update of EDAMS Billing System and Customer Database to align the GIS information with the EDAMS information. • Increasing the number of active and metered connections supplied with water services by MOWASSCO; • Introducing Hydraulic Modeling and structured Operational Maintenance within MOWASSCO operations; • Providing technical support for the organizational and capacity development for strengthening of MOWASSCO.

Box 0-1. Definition of EDAMS The EDAMS-Billing & Customer Information system covers all facets of Commercial management, including on-line enquiries, direct sales, meter readings, walk route management, customer services, debt management, revenue collection, meter and connection management, monthly billing and management reporting in one integrated solution that embodies proven industry best-practices.

By enforcing high levels of data integrity, the system ensures an accurate billing database that will directly impact the bottom line of the services provider. It will: -

• Lead to a reduction in revenues that are lost due to inaccurate statements • Improve customer services and satisfaction levels, resulting in improved revenues collected and a reduction in overall arrears • Facilitate accurate reporting that will enhance management control and overall productivity • Initiate proper meter management programs and data validation activities contributing towards the reduction and control of non-revenue water.

In addition, EDAMS billing is able to evaluate the commercial database, highlighting discrepancies that should be investigated and rectified. The system directly contributes towards a more effective commercial function and hence an increase in both amounts invoiced and revenue collected. A tariff analysis module also exists, enabling the user to project revenues under different scenarios as well as enforcing policy.

By implementing a district metering approach (creating DMAs as recommended by the International Water Association IWA) and improving the capacity and quality of the existing network the NRW will be reduced and future demand will be met by an effectively and efficiently water supply.

Sustainable improvement of service delivering to the customers and improvement of operating practices however will only be possible when NRW (both technical and commercial) after completion of the KWSCRP project is controlled by implementing a structured Operation and Maintenance within MOWASSCO. During the implementation of the KWSCRP projects concurrent an structured O&M and an improved billing and collection will implemented using the experiences gained by NRW projects initiated under the WOP1agreement between MOWASSCO and Vitens Evides International (VEI) and though a comprehensive capacity building program within MOWASSCO. Experiences from the pilot DMAs projects done and the comprehensive Operation and Maintenance project in North Mainland are used for this companywide up scaling of O&M and improvement of commercial

1 Water Operators Partnership. This agreement started as per 1 December 2012 and is co funded by the Netherlands’ Ministry of Foreign Affairs. The partners in the project are MOWASSCO, Coast Services Board, Vitens Evides International, Aquanet and WSUP.

31 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

processes. Only by implementing the rehabilitation projects within the framework of the KWSCRP program together with the NRW/O&M projects by VEI and MOWASSCO a major NRW reduction can be achieved. Environmental Safeguards Consultants (ESC) Limited has been commissioned by the KWSCRP to prepare RAP for West Mainland Water Supply Project based on the detailed engineering designs.

The team of experts from ESC Limited was established as per the Terms of Reference (see appendix 7) for the Project and included:

1. Sociologist and Resettlement Action Plan –Team Leader 2. Sociologist and Resettlement Action Plan-Assistant Team Leader 3. Land Surveyor 4. Valuation Expert 5. GIS Specialist 6. Hydrologist 7. Research Assistants

1.2 GENERAL OBJECTIVES OF KWSCRP NRW PROJECT The general objective of the NRW reduction Programme of the KWSCRP is to increase the absorptive capacity of the distribution network within Mombasa County by investments in physical infrastructure and on NRW reduction. Also focus is laid on the improvement of the organization and procedures within an additional program regarding the management turnaround (which is dealt with in other documents).

The main investments within the framework of the KWSCRP – NRW program are related to survey of the existing water infrastructure, the design of the future water infrastructure looking at the future demand and the future supply from Mwache Dam and the rehabilitation and expansion of the existing water infrastructure in DMA’s established based on the future design.

1.3 PURPOSE AND JUSTIFICATION FOR THE WMWS PROJECT Mombasa County has the highest water supply deficit of the coast region. During the first six months of 2015 the supply was equal to 29% of the net demand, down from 33% in 2013. The combination of an annual population growth of 3-4% and a decreasing supply increases the gap between supply and demand each year.

The current net demand in 2015 is estimated at 152,000 m3/d and is expected to increase to 300,000 m3/d in 2035. The total gross demand, including a 54% NRW in 2015 of which, based on estimates and results from pilot DMAs and O&M project in NML, 60% physical losses), is 209,000 m3/d in 2015. Based on a NRW target of 20%, of which 60% physical losses, the demand in 2035 is 340,000 m3/d. This is lower than used in the design, which uses the conservative assumption that the 20% NRW in the Design Manual refers only to physical losses.

The total demand for all areas except Likoni is based on a comprehensive demand study by WaSSIP for 2030 and extrapolated to 2035. The demand for Likoni is calculated separately as the definition of Likoni has changed due to changes of administrative boundaries. The baseline population based on the census 2009 has therefore changed from 139,972 in the WaSSIP report to 166,008 in the Urban Master Plan Mombasa County.

Table 1-0: Overview gap between supply and demand during the first 6 months of 2015 First 6 months of 2015

32 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Zone Demand (m3/d) Supply (m3/d) Gap (m3/d) Coverage % Island 25,932 10,660 15,272 41% Likoni 24,105 1,598 22,507 7% North Mainland 54,418 18,122 36,296 33% West Mainland 47,847 14,016 33,832 29%

Total 152,302 44,396 107,906 29%

Solutions include rehabilitation of the existing water supply infrastructure and expansion of the distribution network. The WMWS Project will address these problems in the West Mainland area of Mombasa also for existing sources of water supply. This will be achieved through the WMWS project which will:

● Promote equity in service provision, increase financial self-sufficiency of the MOWASSCO and therefore decrease GoK subsidies to the sector; and ● Support economic growth by assuring the water supply service provision achieves economies and efficiencies to deliver services to current and future consumers (domestic and industrial) in a reliable and cost effective manner.

1.4 OBJECTIVES OF THE WMWS PROJECT The WMWS Project aims at supporting a number of interventions to rehabilitate and expand existing water supply infrastructure in west mainland part of Mombasa.

West Mainland is divided into two sub counties of Changamwe and Jomvu. The population density of Changamwe Sub-County is 8152 persons/km2 with a land area of 18.11km2 and land use is characterized by Residential (19.5%), Commercial (4.9%), Industrial (34.8%), Transportation (21.3%), Undeveloped and all others (19.5%). The spatial representation of these features is presented in the Urban Master Plan Mombasa County.

The population density of Jomvu Sub-County is 2929 persons/km2 with a land area of 35.02km2and land use is characterized by Residential (18.2%), Commercial (5.2%), Industrial (1.4%), Public Purpose (9.9%), Undeveloped (57.7%) and all others (7.6%)

The WMWS Project will bring benefits to the West Mainland part of Mombasa through the major infrastructure investment. The overall objective of the WMWS Project is to increase incomes through improved health and employability across communities. Moreover, improved water supply infrastructure can bring significant positive economic impact on the commercial value of properties and business opportunities in both urban and peri-urban areas of West Mainland/Mombasa.

The WMWS Project is consistent with the proposals in the Mombasa Water Master Plan which estimated that in order to meet the demand for water in in the year 2035. The SIMP identified projects and prioritized them based on the maximum benefits to be derived from a technical, environmental and socio-economic point of view. The recommendation was made that the projects which provide the greatest benefits should be implemented by 2015.

33 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

1.5 LOCATIONS OF PROJECT West Mainland as the name indicates is located to the west of Mombasa and one of the four zones earmarked for network development and Non-Revenue Water (NRW) reduction implementation. The other three zones are Likoni, North Mainland and Island. Each of these Zones is targeted in NRW reduction strategy which seeks to measure, monitor and evaluate how efficiently the utility delivers services based on set and agreed performance indicators. West Mainland consists of two constituencies Changamwe and Jomvu. Appendix 3 presents more location maps of project site.

Figure 1-0: Location of Project

1.6 INFRASTRUCTURE COMPONENTS The design of the distribution network of West Mainland is based on new pipelines, existing distribution network in good condition, strategic interconnections between these two systems and also revised interconnections within the old system. The approach is based on:

The network designing encompasses demand estimation and forecasting, network structuring and expansion (including major transmission lines), DMA designs all other associated tasks.

34 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Box 0-1. Definition of DMA

DMA stands for "district metered area". It describes a hydraulically isolated sub-zone in a distribution network for which the water consumption is monitored by water metres. For basic pressure management or more advanced modulating pressure management, water suppliers create a network of District Metered Areas (DMA’s) or smaller, more manageable pressure management zones. The DMA or pressure zone gives the ability to measure flow and control pressure, when a Pressure Reducing Valve (PRV) or Automatic Control Valve (ACV) is installed at the takeoff of the DMA from the Main Distribution line.

The final pipelines are subdivided based on functionality: 1. Primary pipeline: These form the backbone of the supply network. Diameters vary from 150 to 900 mm with a total length of approximately 106 km with 39 km being newly designed lines. 2. Secondary pipeline: connection between the primary lines and the DMA’s. These ensure minimal takeoffs from the primary lines, maintains network structure and ease of segmenting the network into smaller discreet areas. Pipe diameters range from 150 to 250 mm and pipes not classified as primary. The secondary lines are approximately 81 km with 36 km being newly designed lines. 3. Tertiary pipeline: Pipelines providing final supply to the consumers. Diameters vary from 110 mm to 50 mm with a total length of approximately 118 km with 47 km being newly designed lines. 1.7 PROJECT COMPONENTS LEADING TO RESETTLMENT The construction and laying of primary, secondary and tertiary pipelines as described above require land and therefore will lead to displacement (physical and economic) of the PAPs who are located in the pipeline routing. The land required for the pipelines are as follows:

Table 1-0: Land size by pipeline type Line Type Land Size Needed Primary pipeline 3-6metres depending on pipe diameter (900mm-400mm) Secondary pipeline 2-metres deepening on pipe diameter (400mm-150mm) Tertiary pipeline 1meter deepening on pipe diameter (150mm-50mm)

1.8 SCOPE AND OBJECTIVES OF THE RESETTLEMENT ACTION PLAN This is a Resettlement Action Plan (RAP) for Project-Affected Persons (PAPs) in the Project Area (PA) who will be affected by the planned upgrading and expansion of West Mainland Water Supply Project in Mombasa County by the MOWASSCO under the Kenya Water and Climate Resilience Project (KWSCRP).

The purpose of developing a RAP at this initial stage of the Project cycle is to outline the framework for mitigating and restoring the project’s impacts on the livelihoods of project-affected communities as

35 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

early as possible in project development. This will allow for effective disclosure to key stakeholders, and subsequent feedback and inputs, prior to the project approval and commencement. The scope of work for the development of this LRP therefore reflects requirements of the laws of Kenya with respect to land acquisition, World Bank safeguards policy OP 4:12 on Land Acquisition and Involuntary Resettlement, dated January 2012.

The implementation of the proposed project will require land as major infrastructure development projects generally do. An assessment study of the adverse social impacts due to the proposed project has been carried out which provides a scope for developing a dedicated mitigation plan for minimizing the adverse social impacts. Thus, the main guidelines of resettlement plan and livelihoods restoration programs (RAP) have been planned and prepared. The action plan will cover all components of adverse impacts incurred upon the affected population due to the implementation of the project.

Adverse impacts in the form of fresh land uptake, impact on structures on the proposed site, infrastructure and the pipeline other project components like the construction of the contractors’ management camp site etc. will be mitigated through constructive guidelines contained in the RAP. It will be based on Kenyan Government laws and in line with the World Bank policies on involuntary resettlement.

In addition to compensation to unavoidable adverse impacts on properties, the RAP will also provide guidelines to restore livelihoods lost due to project implementation. The RAP will also have provisions of special assistances for vulnerable households for minimizing adverse impact on them.

The main objectives of RAP have been envisaged as follows: • Involuntary resettlement should be avoided where feasible, or minimized, by exploring all viable alternative project designs. • Avoiding displacement of people without a well-designed compensation and relocation process; minimizing the number of PAP, to the extent possible. • Where it is not feasible to avoid resettlement, resettlement activities should be conceived and executed as sustainable development programs, providing sufficient mitigation measures. • Including compensating for losses incurred in terms of land, structures, trees and crops and displaced incomes and livelihoods. • Affected people should be assisted in their efforts to restore their livelihoods and improve • their livelihoods and standards of living, or at least to restore them, in real terms, to pre- displacement levels or to levels prevailing prior to the beginning of project implementation, whichever is higher. • Affected people should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs. • Ensuring resettlement assistance or rehabilitation, as needed, to address impacts on project affected people’s (PAP) livelihoods and their wellbeing. • Gender development by creating employment through the project in order to empowering women. • Ensure payment of compensation to all PAPs irrespective of possession of tile to land. Land title is only required as basis for payment of compensation for land.

1.9 POTENTIAL PROJECT IMPACTS This section describes the project activities and their potential impacts in terms of property and livelihood activities likely to be affected by the implementation of project activities. This section presents the PAP categories and types of livelihood properties/structures and socio-economic services that are likely to be affected or lost as a result of Project implementation.

36 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

The property analysis write-up is based on records accessed from the PAP valuation roll and PAP census. Wherever applicable, the project implementation activities and the extent of impact have been presented. Alternative measures to minimize resettlement, displacements and restricted access are also discussed. A summary of potential project impacts is presented in Table 1-2.

1.10 ZONES OF POTENTIAL IMPACT OF PROJECT ACTIVITIES The project’s area of influence lies within the three locations of Jomvu, Miritini and Mikindani. In the project areas there are formal commercial and residential buildings on the route, which will be partially or permanently affected. The project will therefore lead to economic and physical displacement of PAPs who are categorized as land owners, structure owners, crop/tree owners and as such the project will acquire new land. The impacts will be felt around the following areas namely:

Table 1-1: Affected Zones Affected Areas Mikindani Jomvu Miritini

A summary of project impacts in terms of number of PAPs affected by zone/area is presented in Table 1-2 below.

Table 1-2: Potential Impacts of Project /Number of PAPs Affected Area Category of PAP # of PAP

Mikindani Structure Owners, (Business) 58 Jomvu Structure Owners, ( Business) 66 Miritini Land Owners, Structure Owners, Tenants ( Business) 50 TOTAL 174

Table 1-3: Size of Affected Land Parcels LOCATION SIZE OF LAND PARCELS (ACRES) Mikindani 0.0 Jomvu 0.0 Miritini 0.53 Total Affected Land Size 0.53

Table 1-4: Category of PAPs and Area Affected Area Category of PAP # of PAP

Mikindani Structure Owners (squatters) 57 Structure Owner (not a squatter) 1 Public Institutions 0 Graves 0

Jomvu Structure Owners, (squatters) 65 Structure Owner (not a squatter) 1 Public Institutions 0 Graves 0 Public Institutions Miritini Structure Owners, (squatters) 47

37 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Land owners 3 Public Institutions 0 Graves 0

TOTAL 174

1.11 IDENTIFICATION OF THE PROJECT POTENTIAL IMPACTS The relative potential impact of the project activities is described in the sub-sections that follow. a) The improvement, and extensions to the pipeline network will lead to the acquisition of land and hence physically and economically displace the PAPs b) The major project activity will be the rehabilitation of the existing pipeline, which will take place within road reserve and on privately owned land which will be acquired and compensated as easement prior to construction. c) The impact on crops and trees will be mainly be in areas where PAPs are cultivating crops and trees. With respect to livelihood restoration, therefore, compensation for temporary loss of livelihood income has been considered as part of the 15 per cent livelihood/disturbance allowance, calculated in addition to the cost and/or replacement of the affected property. d) There are no public or communal facilities (hospitals, schools, religious institutions) etc. that will be affected by the project. A deliberate effort has been made by the design team to route and align the pipelines away from such facilities in order to minimize impacts.

1.12 MECHANISMS TO MINIMISE RESETTLEMENT/RESTRICTED ACCESS A number of alternatives and mechanisms have been considered to avoid or minimize resettlement/displacement and restricted access to socio-economic services during the design and implementation of project activities. This is also in consideration of the concerns of community members and institutional stakeholders consulted.

(a) Use of manual excavation: The contracting firm wills as much as possible use manual excavation in heavily built-up areas. This will enable the project to minimize the extent of structural damage associated with machine excavation in such heavily build-up areas. (b) Selection of non-residential sites: As much as possible, besides engineering design prerequisites, site selection has been guided by the desire to minimize the displacement of human settlements/residences.

(c) Social services access points will remain open or alternative entry points will be provided: Access points for institutions offering social services such as schools, markets and health facilities along the affected road reserves will not be blocked or alternative entry points will be provided by the contractor while on site in such areas. One strategy is to work on the entry points of such service institutions at weekends or during breaks when the access points are not fully engaged.

38 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

2 METHODOLOGY AND APPROACH

2.1 INTRODUCTION Information collected for the RAP was acquired through qualitative and quantitative methods, through the sources described below.

2.1.1 Literature Review An initial task of the Project was to assess, and report on, the adequacy and completeness of preliminary studies undertaken for the Project, and to identify any shortfalls or gaps to determine what additional work would be required to prepare the detailed environmental and social reports (ESIA and ESMP), including the RAP, in accordance with applicable regulations and standards. Based on the information acquired, an anticipated study program and resourcing for completion of the reports was provided in the Review. The documents that were reviewed included among others;

1. Land Laws Act (amendments) (no. 28 of 2016) 2. Land Registration Act (2012) 3. Valuers Act (1985) 4. National Land Commission Act (2012) 5. The Constitution of Kenya, 2010 6. Eviction Guidelines (2010) 7. Housing Policy 8. County Government Act 9. Land Laws Act (2012) 10. KWSCRP Resettlement Policy Framework (RPF) 11. World Bank O.P. 4.12 12. Project feasibility study report

2.1.2 PAPs Stakeholder Consultations The Consultant’s RAP team undertook public consultations with the Project Affected Persons (PAPs) to ensure that the Project activities and the likely impacts on the local people and their livelihoods were explained and openly discussed. Three (3) community meetings and one (1) institutional consultation were conducted in the project area between 9th May and 17th May 2017. Stakeholders consulted during the study included the Project Affected People (PAP), local village communities, County Officials, Ward Administrators. The objectives of these consultations were to identify PAPs and to increase their general awareness about the Project and the RAP process. Consultations also explained the nature, extent, limit, and method of compensation. During the public meetings held in the 3 areas shown in table 2-1 below, communication was given to all PAPs along the project route.

This was done through the 3 barazas which served to introduce the project, inform the communities that they would likely be affected in view that they are on the project routing and that during the census survey, the actual PAPs would be known. During the census survey and valuation of assets, PAPs were further consulted through the administration of study tools which collected information including fears perceptions and concerns about each individual PAP.

Table 2-1: Community Consultations DATES VENUE #.OF PARTICIPANTS 9th May 2017 Mikindani Bus Stage 71 15th May 2017 Miritini Bus Stage 53 17th May 2017 Jomvu – Next to Total Fuel Station 43

39 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 2-2 below shows consultations held with government (county and national) institutions.

Table 2-2: Consultation with Institutions

DATE VENUE # OF PARTICIPANTS 15th May 2017 Deputy County Commissioner’s Office – Mikindani/Jomvu Sub-County 7

2.1.3 Asset, Census and Socio-Economic Surveys The following surveys have been undertaken: • An Asset Survey for Buildings and Support Structures, and a separate Survey for Land, Crops and Trees, to identify all individuals that would potentially be affected by the Project through the loss of land, and the loss of structures and other permanent improvements on that land; • A Census of all PAP identified through the Census and Asset Surveys; and • A Socio-Economic Survey of approximately 15 percent of the Census survey, to obtain a socioeconomic profile of the area and to further evaluate Project impacts.

2.1.4 Formulation of Survey Instruments • Two different Asset Survey forms, one for Building and Support Structures, and one for Land, Crops and Trees, were designed to obtained a detailed analysis of the loss of assets for individual PAP: • The survey for Buildings and Support Structures detailed the building being affected; its GPS position and size; its type, use, features and condition; and ownership; • The survey for Land, Crops and Trees detailed the GPS position and size of the land; the cropped area in hectares, the farming stage, and the type of crops; and the quantity and type of fruit and indigenous trees on the land. • Information was collected for each building or support structure affected, and a separate form completed for each affected piece of land. • Given the level of detail acquired, the Asset Survey forms are designed to form the basis for the payment of compensation for assets lost.

The Census survey covered the following topics: • Household composition (gender, age, education, residential status and employment status for • each household member), with added characteristics of the PAP including tribal affiliation and • religion; • Economic activities and household income; • Homestead details (description of structures, length of stay at residential site, water and • energy sources, and sanitation facilities); • Ownership, usage and cultivation of agricultural fields; • Ownership of trees; • Ownership of livestock and grazing areas; and • Perceptions of the Project. • Refer to appendix 5 for survey tool used.

The Socio-Economic survey was a more detailed version of the Census, comprising additional Information on: • Household assets; • Household expenditure patterns; • The use of water resources; • Access to and use of community services and facilities; • Access to health facilities and health status;

40 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• Sacred, religious and grave sites; and • Conflict management and information sources. Before finalization the Socio-Economic survey it was pre-tested as part of the training of the asset surveyors and enumerators, as detailed below. All survey tools were presented to the KWSCRP/PMU for comment prior to commencement of the fieldwork.

2.1.5 Training of Asset Surveyors and Field Enumerators The training was conducted by the Sociologist and Resettlement Specialist, and covered the following topics: • Background to the Project; • Principles of quantitative and qualitative research; • Interviewing ethics and techniques, including exercises and role-playing; • Questionnaire content; • Practical use of equipment – GPS and camera; and • Fieldwork logistics.

The training concluded with a practical application of the Socio-Economic survey, which also functioned as the pilot study. The group was responsible for interviewing one selected PAP – with enumerators taking turns to ask questions. Thereafter all met in plenary with the trainers, to raise points for discussion and clarification before starting the full survey, and to edit the questionnaire based on appropriateness to the social environment. Interviewers then worked in pairs for a full day before working individually with the PAP. The additional enumerators were given personalized intensive training in preparation for the work at the time of employment.

2.1.6 Delineation of Study Area and Identification of PAP As stated, the area covered by the surveys is based on the Area of Project Impact. The Surveyors used the co-ordinates to delineate the boundaries within which to identify the impacted areas, and thus the affected assets and PAP. The process followed in identifying the affected land, and associated PAP, was as follows:

• The Resettlement Specialist informed all county government (ward administrator), national government (county commissioner, chiefs and assistant chiefs, village head) in the areas well in advance of the study; Working with County Government members, the Resettlement Specialist went ahead of the survey team to inform an area that they would be coming to their area within the next few days, and requested that a village head be nominated to help in the identification of land, and the landholders of that land; • Using coordinates given by the GIS Specialist, the asset surveyors prescribed the Project Area of Impact using GPS instruments, and identified land that would be affected within those boundaries; • The landholders and structure holders for each affected land piece (the PAP), identified are then interviewed, firstly for the asset surveys by the asset surveyors, followed by the enumerators with either a Census form or a Socio-Economic questionnaire; and • If a landholder had more than one piece of affected land, each is surveyed by the asset surveyors; however, only one Census or Socio-Economic survey is completed for each PAP.

2.1.7 Data Collection, Entry and Analysis The information obtained from the surveys was entered into an Ms Access database by a team of ten database entry clerks, one acting as the supervisor. The final master database will be kept by the Client, as a useful tool for resettlement planning in subsequent Project phases, and for monitoring the standards of living of PAP over the long term.

41 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

2.1.8 Public Participation and Consultation Field data collection at any point on the RoW and private land was preceded by making contact with the relevant area Government administrators such as chief, sub-chief, Deputy County Commissioner (D.C.C). Other key persons who played this role were religious leaders in and around religious missions, head teachers in and around educational facilities, etc. These community opinion leaders played the role of providing information about the community and its culture while they helped organize community mobilization and peer consultations.

2.1.9 Preparation of RAP Report This RAP Report has been prepared in accordance with guidelines of the World Bank, legislations and other regulations currently in force in Kenya. The RAP report has been compiled to capture demographic and socio-economic welfare of the PAPs while incorporating stakeholders‟ views which arose from the RAP field study. The aim of the RAP is to assess the potential social impacts (positive and negative) of the proposed water supply line highlighting socio-economic issues relating to land acquisition, loss of economic activities and livelihoods, resettlement and displacement of households and community assets.

This RAP report has documented the process of resettlement of PAPs and fulfills the project objective to avoid or minimize involuntary resettlement to ensure that affected individuals and households and/or displaced communities consultations are documented, participation of PAPs in the resettlement planning process is well thought out and organized, and that PAPs are adequately compensated to the extent that at least their pre-displacement incomes are restored in a fair and transparent process. Such a process must ensure that people and enterprises affected by the project are compensated for any loss of property and/or socio-economic displacement arising from the project. The report sets out to document the process applied in providing PAPs with opportunities to restore or improve their living standards and income earnings capacity to at least pre-project levels while providing guidelines to stakeholders participating in the mitigation of adverse social impacts of the project which include rehabilitation and resettlement operations in order to ensure that PAPs are not impoverished by adverse social impacts of the project.

On the overall the report seeks to inform in a step-by-step manner how resettlement of PAPs, communities and other project-affected entities have been involved in the entire process of resettlement so that they can identify with the project and render their support to it.

42 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

3 SOCIO-ECONOMIC BASELINE

3.1 INTRODUCTION The socio-economic baseline presented in this section is for a selection of areas representative of the project route. The focus of this socio-economic baseline was on a selection of communities which will directly benefit from the proposed project and that can be used to measure and monitor positive and negative impacts. The main sources of data are:

• The 2009 Census of Population and Housing Census. • Community socio-economic survey conducted. • Community consultations conducted in May, June and July 2017.

3.2 POPULATION AND DEMOGRAPHY Mombasa County comprises of four distinct Geographical Areas which also correspond to Administrative Divisions, namely;

• Mombasa Island (Island Division) • North Mainland (Kisauni Division) • South Mainland (Likoni Division) • West Mainland (Changamwe Division)

The four Administrative Divisions are subdivided into thirty Wards. According to the population census of 2009, Mombasa County has a total population of 939,370 people. The population distribution within the six sub-Counties in Mombasa is as shown in Table 3-0 below.

Table 3-0: Mombasa County Population Distribution No. Sub-County Population 2009 Census Area Covered (km2) 1. Changamwe 147,613 16 2. Jomvu 102,566 29 3. Kisauni 194,065 88.7 4. Nyali 185,990 22.88 5. Likoni 166,008 41.1 6. Mvita 143,128 14.8 Total 939,370 212.48

The island was the most populated in 1989 followed by Kisauni and Changamwe but the pattern changed by 1999 with Kisauni being the most populous followed by Changamwe and the Island taking third position mainly because of availability of cheap housing. In 2009 Kisauni continues to be the most populous because of availability of cheap housing. The Island still has high density because the area is too small and the population is increasing leading to congestion.

High population densities are found in island Division and along the major highways such as Lunga-Lunga road in Likoni division, Mombasa – Nairobi road in Changamwe division and Mombasa – Malindi road in Kisauni division. These areas are well served with infrastructural services. Sparsely populated areas are found at the outskirts of the county. These are Mwakirunge, Maunguja, Mwangala and Makupa jetty area. These areas are least developed in terms of infrastructure such as road network, electricity and water supply. As the population continues to grow more pressure is exerted on the available water resources because of the

43 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

increase in demand for water.

The County had a population density of 6,131 persons per Km2 in 2009 which was projected to increase to 6,640.5 persons per Km2 by 2015 owing to high population growth contributed to by the increased numbers of people seeking employment.

The population density of Changamwe Sub-County is 8152 persons/km2 with a land area of 18.11km2 and land use is characterized by Residential (19.5%), Commercial (4.9%), Industrial (34.8%), Transportation (21.3%), Undeveloped and all others (19.5%). The spatial representation of these features is presented in the Urban Master Plan Mombasa County.

3.2.1 Demographics In 2009 total population of the county was 939,370 persons of which 486,924 and 452,446 were male and female respectively. Based on projection of 2009 population the county is estimated to be 1,051,825 in 2012. The County had a population density of 6,131 persons per Km2in 2009 and was projected at 6,640.5 persons per Km2by 2012.

There are high population densities in Mvita, Changamwe and Nyali are attributed to level of income, proximity to vital infrastructure such as roads, water, electricity and employment opportunities

The employment opportunities are due to the presence of industries like the Export Processing Zones and other physical facilities such as the Port of Mombasa and the Moi International Airport, Mombasa. Kisauni (2,188persons / Km2), Jomvu (3,537 persons/Km2) and Likoni (4,040 persons/Km2) are the least densely populated sub-counties in the county.

3.2.2 Ethnicity Mombasa County is a cosmopolitan county hence multi-ethnic.

3.2.3 Religion The majority of Mombasa's population is Muslim. This large population has recently adapted Arab immigrant practices into Swahili New Year. The celebrations of maulidi, a celebration of the Prophet Muhammad’s birth, and shirk, the Mombasa adopted name for the Swahili New Year, have witnessed an increasing overlap of cultures within the city. This parallels increased migration of Muslim Arab immigrants in the region. The Catholics are pastorally served by the Metropolitan Roman Catholic Archdiocese of Mombasa.

3.2.4 Settlement Patterns The main types of houses in the counties are individual-owned, Government-owned and Local Authority-owned. The houses are categorized by the type of material used; namely; wall, floor and main roofing material. In Mombasa County, 77% of residents have homes with cement floors, while 14% have earth floors. Less than 1% has wood and 5% have tile floors.

In Mombasa County, 71% of homes have either brick or stone walls. 24% of homes have mud/wood or mud/cement walls. Less than 1% has wood walls. 1% has corrugated iron walls. Less than 1% has grass/thatched walls. 5% have tin or other walls. In Mombasa County, 9% of residents have homes with concrete roofs, while 75% have corrugated iron roofs. Grass and makuti roofs constitute 4% of homes and less than 1% has mud/dung roofs.

44 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Population distribution and settlement patterns in the County are influenced by proximity to vital social and physical infrastructure networks such as roads, housing, water and electricity. Other factors that influence settlement patterns include accessibility to employment opportunities, availability of cheap housing, security and land tenure systems.

Highly populated areas are in Majengo, Bamburi, Bangladesh, Mikindani, Jomvu, Miritini, Migadini, Port Reitz, Mishomoroni and Bombolulu. The County has various settlement schemes namely Mwakirunge, Jomvu-Kuu, Bububu-A, Shika-adabu, Vyemani, Mwembelegeza and Majaoni. Large number of landless people most of who live in the city’s slums of Mishomoroni, Junda and Kisumu ndogo in Kisauni (North Mainland), Shika-Adabu and Ngomeni in Likoni (South Mainland) and Bangladesh in Changamwe (West Mainland).

3.3 EDUCATION Mombasa County Government recognises that education and training is one of the levers that will make the county into becoming avibrant modern commercial hub with a high standard of living for its residents. Literacy levels in the county are relatively low at 86.3 per cent. Net Enrollment Ratioin ECD, school and secondary school is 57.4%, 81.1% and 32.5% respectively. The challenge for the county is to be able to provide adequate school infrastructure such as desks, chairs, classrooms, laboratories and staffing. Some of the public primary schools include vijiweni primary,Miritini primary school, Kwa Jomvu primary school,Changamwe primary school while Public secondary school include Miritini Secondary school,Kajembe, Aldina high school.

3.4 HEALTH Mombasa County hosts the Coast Level five referral hospitals. Other major health facilities in the county include Mombasa Hospital, Agha Khan Hospital, Bomu Hospital Port Reitz, Tudor and Padya memorial hospital. In addition, the county has fifteen private hospitals, four nursing homes, nine health clinics, twenty-seven dispensaries and 106 private clinics.

Due to the location of the county as a sea port, cases of drugs and substance abuse and trafficking have been on the increase. HIV/AIDS prevalence at the county was at 8.1% against a national average of 6.35 (KNBS, 2013). AIDS related deaths are common and those mainly affected are within the productive age group of 15-49 years of age, leaving minors and the elderly people to take care of households. It was also noted that the number of HIV/AIDS orphans is on the increase.

Drug abuse is viewed as a major cause of HIV/AIDS. Poverty also increases vulnerability of people with HIV, hence there is need to redirect resources towards support services to poor households. Progressive gains on poverty reduction may be reversed if concerted efforts are not urgently put in place to bring the HIV/AIDS pandemic under control. Implementation of the project thus needs to create comprehensive HIV/AIDS awareness among the workers along the project area.

The Government through the Economic Stimulus Programme established health care facilities in Jomvu mainland to complement the existing facilities. However, despite these among other efforts, health care services in the county are still a major challenge due to inadequate health service delivery points and inadequate personnel. Although the average distance to health facilities is currently 0.55Km, the doctor patient ratio of 1:11,875 and the nurse/population ratio is 1:18,678 are still high than the World Health Organization‘s recommended doctor patient ratio of 1:600.

3.5 ENERGY SOURCES The Kipevu power plant produces power which is fed into the national grid. There are plans to construct an 800MW LNG power plant in Dongo Kundu area.

Only 9% of residents in Mombasa County use liquefied petroleum gas (LPG), and 39% use

45 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

paraffin. 6% use firewood and 41% use charcoal. The most common cooking fuel among male headed households is paraffin and charcoal at 40% each while the most common cooking fuels for female headed households is charcoal 45%.

Likoni Division has the highest level of charcoal use in Mombasa County at 46%. Changamwe Division has the highest level of use of paraffin in Mombasa County at 49%. A total of 59% of residents in Mombasa County use electricity as their main source of lighting. A further 16% use lanterns, and 23% use tin lamps. 0.2% use fuel wood. Figure 3-0 below shows distribution of households by lighting fuel source.

Figure 3-0: distribution of households by lighting fuel source

Source KNBS 2013

3.6 WATER SUPPLY Mombasa is supplied from several sources: • Mazeras Reservoir in the west supplies West Mainland and via Changamwe Reservoir to Island; • Nguu Tatu Reservoir in the north supplies Kisauni and Nyali; • Marere Springs supplies West Mainland and supplies Kaya Bombo reservoir; • Kaya Bombo Reservoir in the south supplies Likoni.

Figure 3-1: Overview existing reservoirs: Mazeras, Changamwe, Nguu Tatu and Kaya Bombo

46 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 3-1: Sources to the water supply of Mombasa County

Supply to Mombasa (m3/d)

Production Source 2006-2011 2013 Q1 and Q2 2015 capacity (m3/d) Baricho 83,000 25,206 28,596 27,713 Mzima 35,000 17,849 13,364 12,951 Marere Springs 12,000 2,965 2,202 2,134 Tiwi Boreholes 13,000 1,880 1,649 1,598 Total 143,000 47,900 45,811 44,396

The Mombasa County heavily depends on water sources from outside the County for its potable needs. Its main sources of water supply are the Mzima Springs located about 200km west; Baricho Water works located about 150km north and Marere springs and Tiwi boreholes found about 40km south of Mombasa mainly supplying the Likoni area. Generally, the whole Mombasa County has a daily water demand of 185,000m3 of water against the available 45,000m3. There is therefore a water shortfall of 140,000m3, about 76% of the demand, which is met by tapping the groundwater sources (MOWASSCO, 2015). In fact, 13,286 out of the 183,540 households in the County are almost permanently dependent on groundwater. These are distributed as follows: - wells- 6,245 households, boreholes- 6,941 households (GoK, 1999). Thus, a significant proportion of the population relies on groundwater for their potable water needs. The shortage of water in the Mombasa County and lack of funds to undertake capital investment projects has delayed extensions of water borne sewerage, forcing the residents to rely on on-site systems for sewage management.

About 17% of the households in Mombasa, as well as hotels and most public buildings, have septic tank and soakage pit systems. Of the 13,000 septic tanks that are in use in Mombasa, most of them are found in high-income residential areas. A great majority of households in Mombasa, (about 70%) use pits latrines (Munga et al., 2006).

3.6.1 Water Demand Mombasa County has the highest water supply deficit of the coast region. During the first six months of 2015 the supply was equal to 29% of the net demand, down from 33% in 2013. The combination of an annual population growth of 3-4% and a decreasing supply increases the gap between supply and demand each year. The current net demand in 2015 is estimated at 152,000 m3/d and is expected to increase to 300,000 m3/d in 2035.

The total gross demand, including a 54% NRW in 2015 of which, based on estimates and results from pilot DMAs and O&M project in NML, 60% physical losses), is 209,000 m3/d in 2015. Based on a NRW target of 20%, of which 60% physical losses, the demand in 2035 is 340,000 m3/d. This is lower than used in the design, which uses the conservative assumption that the 20% NRW in the Design Manual refers only to physical losses.

47 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 3-2: Overview gap between supply and demand during the first 6 months of 2015

First 6 months of 2015

Zone Demand (m3/d) Supply (m3/d) Gap (m3/d) Coverage % Island 25,932 10,660 15,272 41% Likoni 24,105 1,598 22,507 7% North Mainland 54,418 18,122 36,296 33% West Mainland 47,847 14,016 33,832 29%

Total 152,302 44,396 107,906 29%

Table 3-3: Net demand in 2035 Net demand 2035 (m3/day) Gross demand 2035 (m3/day)

Sub-area Mean Peak Mean Peak Island 46,200 92,800 52,400 105,500 Likoni 56,600 93,700 64,300 106,400 North Mainland 104,600 211,200 118,900 240,000 West Mainland 92,200 185,100 104,800 210,400

Total 299,600 582,800 340,400 662,300

3.6.2 Current Water Supply Situated in the western part of Mombasa, West Mainland is considered the industrial hub Mombasa. West Mainland consists of two constituencies being Changamwe and Jomvu. Water supply to West Mainland is mainly supplied from two sources:

1. Mzima springs which are recharged from rainfall on the Chyulu Hills, are located in the TaitaTaveta County. Through 800 mm concrete pipe water from this source terminates at reservoirs located at Mazeres before further supply to West Mainland by gravity; 2. Marere springs located in the foot of the Shimba Hills Game Reserve in Kwale County. Currently production is about 7,000m3/day of which a part is supplied to Mombasa.

The water sources are connected to West Mainland by three pipelines: I. DN600 and DN525 parallel pipes of concrete material form the transmission mains from the Mazeres reservoir; II. DN 500 steel transmission main from the Marere headworks.

3.7 POVERTY, INCOME AND EMPLOYMENT 3.7.1 Employment and unemployment Unemployment in the county is high particularly among youth. Youth population comprises 41 per cent of the population in the county and 61 per cent of the county’s labor force. Efforts need to be stepped up to ensure youth become gainfully employed. Current estimates indicate that 38 per cent

48 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

of the population in the county is poor. The high unemployment and poverty rates underscore a critical need to address the challenge of unemployment by providing opportunities for gainful engagement to all youth. In 2013 the county economy needs to generate between 59,983 and 49,077 to bring unemployment level to NUR of 6% or 4% respectively. In order to keep unemployment at NUR the county economy needs to meet projected employment in 2017 of at least 780,694 jobs.

The project county is endowed with numerous natural resources that have determined their economies. These include Mombasa Marine National Park & Reserve, Nature Trail, Arable Land, Indian Ocean Tourist Attractions as Beach Tourism, Game Parks, Historical and Cultural sites and Tourist Hotels. Thus the main Economic Activities include: Tourism, Farming, Fishing, Livestock farming, Chrome Ore, Cement, Salt, Sand, Food Processing and Various Manufacturing Firms. The Counties has a strong industrial sector with the Mabati Rolling Mill and the Athi River Cement Factory contributing heavily to the region’s economy both in employment provision and income generation. Opportunities exist in agriculture particularly dairy and crop farming thanks to fertile soils and a good weather pattern.

There are various types of trade in the project area including retail, wholesale, distribution and hawking. The wholesale businesses are few and are located mainly in the major Trading Centres of Mombasa. The small-scale retail outlets include canteens, kiosks, hawkers and newspaper vendors. The main goods offered for trade include; (i) General consumer goods such as sugar, maize flour, wheat flour, rice, salt, cooking fat and oil, (ii) Body care products such as hair shampoo, body creams and lotions, (iii) Cleaning and hygiene products such as detergents and laundry soaps, (iv) Medical drugs, (v) Hardware products for building and constructions, (vi) Electronics in the main shopping centers, (vii) Agricultural sector products such as cereals, legumes, tropical fruits such as pineapples, mangoes and coconuts, (viii) Sea foods such as fish, (ix) Forest products such as timber, charcoal, building poles, herbs, etc. (x) Livestock products such as meat, chicken, raw milk and eggs among others. Mombasa has served as the main corridor along which many manufacturing firms have established their processing plants and warehouses. The main establishments along the project corridor include Athi River Mining Cement Factory, Mabati Rolling Mills, Pwani and Kapa Oil Refinery. There are a number of organizations, SMEs, youth and women groups who are engaged in Commercial Crafts some as exporters selling on order basis and others as local entrepreneurs selling to tourists.

Some of the organizations and groups, majorly SMEs, engaged in making textiles and garments, household items and upholstery, African jewellery, leather and leather products, wooden carvings, articles from soap stones and basketry, are clients of the Export Promotion Council who have benefited from export leads, trainings and product development. The proposed project road improvement will speed up trade and trading activities along the project corridor and into the hinterland. This will also result to reduction in prices of goods and services and redistribution of wholesales in markets where none existed.

3.8 GENDER Gender inequality in the county is manifested in all spheres of life and poses a serious development challenge. The enrolment rate in schools indicates that 49 per cent, 51 per cent and 48 per cent of those enrolled in pre-primary, primary and secondary schools respectively are girls respectively. The dropout rate for girls is lower than for boys but their performance is poorer. Statistics from the Kenya National Chamber of Commerce and Industry shows that 70per cent of its business members are men, whereas women and the youth account for 30 per cent. Majority of the women depend on petty trade and low-income jobs. Low representation of women in decision making organs (civic and development committees) is also a major gender issue. Gender disparities are also found in

49 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

government institutions where more than 80 per cent of all the departmental heads and their deputies are men. The same trend is evident in all major private sector institutions such as tourist hotels.

3.9 TOURISM AND RECREATION The main tourist attractions at the coast are the sandy beaches, marine parks and reserves, terrestrial game parks and reserves and cultural and historical sites. Tourism related activities depending on the beach and marine features include curio vendors, beach traders, boat operators, sport fishing and diving, while secondary activities include safari tour companies, entertainment spots and other service trades such as salons, boutiques, etc. Coastal tourism has developed in clusters of beach hotels along the shoreline. There are also many other tourist accommodations, which are unregistered, such as the many villas, which are registered as private residences but are however rented out to tourists.

3.10 GENERAL INFRASTRUCTURE In Mombasa County, 71% of homes have either brick or stone walls. 24% of homes have mud/wood or mud/cement walls. Less than 1% has wood walls. 1% has corrugated iron walls. less than 1% has grass/thatched walls, 5% have tin or other walls.

77% of residents have homes with cement floors, while 14% have earth floors. Less than 1%has wood and 5% have tile floors.9% of residents have homes with concrete roofs, while 75% have corrugated iron roofs. Grass and makuti roofs constitute 4% of homes and less than 1% has mud/dung roofs. 82% of residents in Mombasa County use improved sanitation, while the rest use unimproved sanitation.

Infrastructure is a basic pillar for global competitiveness and a foundational enabler towards the County vision i.e. ‘to make Mombasa County a vibrant modern regional commercial hub with a high standard of living for its residents’. The development and performance of all key sectors in the county such as health, tourism, wholesale and retail trade, financial services and manufacturing, depend heavily on an efficient network of transport, water and sanitation, telecommunication and energy supply infrastructure. Transport infrastructure plays a number of roles that are critical for the achievement of the Vision of Mombasa County Government. These include economic, social and political roles. Economic role of transportation is largely through its influence on the place, time, quality and utility of goods and services. Transport extends the range of sources of supply of goods to be consumed in an area, making it possible for users to get resources at cheap price and high quality. The use of more efficient systems of supply results in an increase in the total amount of goods available for consumption.

Infrastructure and public utilities In the project counties, basic services such as healthcare and banking, as well as major trading markets are concentrated along the road networks. This has resulted in unequal distribution of basic amenities and services within the County, and hampered easy access to these services by the far- flung rural communities. Mombasa County has several public utilities and infrastructure available although not in all areas. These includes: Electric power lines, oil Pipeline transport, drainage structures sewerage disposal, water supply and transport infrastructure (Road, railway line, sea transport and airport). The availability of the public utilities and infrastructure do not adequately cover all the areas.

There are several modes of transport within the county, these includes both the motorized and the non-motorized means of transport. Motorized transport includes; tuk tuk, motorbikes, heavy trucks, matatus while the non-motorized transport; hand carts and bicycles.

50 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

3.11 SECURITY The project route has several security establishments including Mariakani, Mazeras, Changamwe and Mombasa police stations. In addition, there are a numerous Administration Police Posts.

51 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

4 SOCIO-ECONOMIC CENSUS/PROFILE OF THE PROJECT-AFFECTED PERSONS

4.1 PROJECT-AFFECTED PERSONS The project will affect a total of 174 PAPs along the proposed project route with recognized land rights. The distribution of the PAPs is shown in the table 4-0 below.

Table 4-0: Number of Project-Affected Properties by Area Area Category of PAP # of PAP

Mikindani Structure Owners (squatters) 57 Structure Owner (not a squatter) 1 Public Institutions 0 Graves 0

TOTAL 174

4.2 SOCIO-CULTURE AND LIVELIHOOD ACTIVITIES The project affected area is cosmopolitan in nature and has different ethnic communities residing and trading within the various trading (Market) centres in the vicinity. The traders comprise those with fixed structures/sheds and those that own no structures.

4.3 PAP HOUSEHOLD DEMOGRAPHIC AND ORGANISATION CHARACTERISTICS 4.3.1 Gender and Age of PAPs Majority of the household heads were male (85.92%) with female household heads accounting for 14.08% as shown in figure 4-1 below.

52 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-1 Gender of PAPs

Majority of the PAPs household heads as shown in figure 4-2 are of ages between 41-50 (29.58%) and 31-40 (22.54%) hence showing that they are mostly in the category of youth and adult. The age group of 60 and above accounted for 4% while 25% of the PAPs were unable to tell their age accurately.

Figure 4-2: Age of PAPs

4.4 EDUCATION AND LITERACY LEVELS OF PAPS Most of the PAP household heads could read and write (95.71%) as shown in figure 4-3 below. Only 4.29% per cent of PAP household heads could not read and write in English or Swahili. Swahili language was the most spoken language at home.

53 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-3 Languages spoken at home

Figure 4-4: Ability to read and write

About 37.88% of the PAPs household heads had attained primary level of education and 31.82% achieving secondary levels of education. These percentages are inclusive of household heads and other members of the house hold. In the survey conducted 6.06% of the PAPs had completed technical training, while 1.52% and 7.58% respectively did not complete Secondary and Primary level education. A further 13.64% of the PAPs had no formal education. The survey outcome also indicated that none of the PAPs was a university graduate.

54 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-5: Level of Education Achieved by PAPs (Inclusive of House hold heads and other House Hold Members)

4.5 LAND TENURE AND USE Land ownership in the coast region and along the project corridor has remained a thorny issue as most of the residents do not legally own land and most of the land is owned by absentee landlords leaving many of the residents as squatters. In addition, many of the people in the rural areas own land communally. The proposed project traverses land whose tenure is mixed including privately owned land (dominant in the area), trust land and government land. Many of the large land owners do not live in the project area leaving the land for use by squatters and roaming livestock.

Land use in in the project area is diverse depending on the physical location. The major land use is residential development, industrial development, transport and communication, institutional and for commercial and service purposes among others. Most of the public land is mainly used for institutions development such as religious, health educational, military and the community facilities such as social halls, public gardens, show ground and sports ground.

There are only 3 PAPs who will lose land and have formal (customary and legal) ownership to the land. The rest are squatters (those without formal land rights). The project design has aligned the pipelines as much as possible along the ROW and hence minimizing impacts on those with formal land rights.

4.6 VULNERABILITY AMONG PAPS Vulnerability identified during the survey within the PAPs as shown in figure 4-6 below was composed of: -

Table 4-1: Vulnerable PAPs (Household heads and other members) Vulnerability Numbers The elderly over 60 years 7 Women headed households/widows 5 Children under 18 years of age 0 Chronically Ill 2 Disabled 0

55 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Households headed by orphans 0

4.7 PAP HOUSEHOLD ACCESS TO SOCIAL SERVICES 4.7.1 Access to Water Sources among PAPs Households The survey outcomes concluded that (see figure 4-6) public water taps were the most used source of water (78.13%) Houses with tap water followed (12.5%), while water sourced from boreholes at home was third (6.25%). Water sourced from traditional wells at home and other boreholes away from homes was the least (1.56%) respectively. The survey found that the PAP households were using recommended sources of water for domestic use.

Figure 4-7: Access to Drinking Water

4.8 HOUSEHOLD ECONOMIC STRUCTURE: OCCUPATIONAL AND LABOUR PROFILE OF PAPs

4.8.1 Occupational Status of PAP Household heads The survey outcome after analysis as shown in figure 4-8, revealed that the main economic activities that the PAPs were engaged in were;

1. Subsistent Trader - 47.46% 2. Self Employed craftsman - 13.56% 3. Shop Assistant - 3.39% 4. Without occupation – 3.39% 5. Civil Servant – 1.69% 6. Building Labor – 1.69% 7. Farmer – 1.69% 8. Other Occupation – 27.12%

56 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-8: Occupation of PAPs (Household head and other Members of the Household)

4.9 HOUSEHOLD ECONOMIC STRUCTURE: LIVELIHOOD SOURCES OF INCOME AND EXPENDITURE

4.9.1 The PAP Household Income Levels From the survey, the average PAP households head monthly income levels was Ksh. 14,990.14 per month with their spouses earning an average of Ksh. 1,508.00 per month. The survey also showed that adult children were earning an average of Ksh. 1,300.00 per month as shown in the figure 4-9 below.

Figure 4-9: Monthly Income Levels

The main source of income as shown in figure 4-10 below for the household was agriculture at 58.82% followed by other sources at 17.65%. Property rental was next at 9.8% same as Handicraft. Fish farming and economic support from family was last at 1.98%.

57 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-10: PAPs Sources of Income

4.10 PAP HOUSEHOLD EXPENDITURE LEVELS The PAP household expenditure levels reflected below in figure 4-11 indicates that Housing accounts for the highest expenditure on a monthly basis among the PAPs. This is followed closely by food, rental of agricultural land, Education, Water and agricultural inputs. Health and Transport come last in that order.

Figure 4-11: PAP Household Expenditure Levels

4.11 PAP HOUSEHOLD ENERGY SOURCE The main PAP household sources of energy for cooking were Charcoal (48.44%), Kerosene (35.94%) and LPG Gas (10.94%). Other sources of energy for cooking included electricity and biogas as shown in figure 4-12 below.

58 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-12: PAP Energy Sources - Cooking

The main PAP household sources of lighting were electricity from the grid (89.06%) lanterns/kerosene lamps (7.81%) and oil lamp at (3.13%) as shown in figure 4-13 below;

Figure 4-13: PAP Energy Sources - Lighting

4.12 PAP Household Sanitation Facilities Used The main toilet facility used by PAP households was; • Latrine with septic tank (33.85%), • Flush toilets in the house (29.23%) • Latrine without septic tank (27.69%) • Public toilets outside of the house (7.69%) • No formal facilities (1.54%)

59 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Figure 4-14: PAP Sanitation Facilities

4.13 HEALTH AND DISEASE PREVALENCE The most common diseases are malaria, respiratory infections, diarrhoeal diseases, AIDS and diseases caused by malnutrition and nutrition deficiency. 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.

4.14 GENDER ROLES AND PERCEPTIONS Culture, literacy levels and religion dictates gender issues which are reinforced by society values, norms and roles to males and female. These disparities including marginalization of women in education, income and property rights and lack of credit in turn will dictate the levels of participation in decision making and roles played as well as contribution of resources during and after construction of the road. In terms of productivity, women and men in project area play the primary role in trading.

Females are mainly involved in cooking while males undertake trading, farming and, tourism related activities. Gender roles and responsibilities are well defined. Women are generally engaged in home care, and reproductive roles in the households. They are also engaged in other income generating activities – trading along the road corridor, selling and buying merchandise and foodstuff. Men on the other hand are more engaged in marketing running businesses as traders, and employed in both formal and informal sectors. While men own most of the valued structures and assets; women traditionally do not own large assets in the family, neither are they allowed to make decision on the same. Women headed households have limited decision-making power especially if the assets are not family –based. Women were also found to travel for economic reasons related to their informal, employment, going to the markets or shopping centres. Since they have fewer work opportunities and transportation choices, in order to be employed, women tend to find work close to home while men will spend more on average to get to work. The most predominant mode of travel for women therefore remains walking and head loading with less mobility overall. Generally, women make more trips than men; they make shorter commute trips, more non-formal work trips and are more likely to trip chain- one way to and from work to home. As a result, they found that regular use of public transport in particular was prohibitive, spending a higher share of their income on average than men. Generally, men spend more to get to work while women tend to stay closer to home beyond a fixed transport cost threshold. Mobility patterns of women thus relate to domestic, economic and social tasks.

4.15 PAP HOUSEHOLD PROPERTY OWNERSHIP AND PERCEPTION OF WELLBEING The table below shows the assets owned by the PAPs. In all cases motorcycles, bicycles and cars were owned by the male household head. Radios, televisions, mobile phones were a mixed basket of ownership between male and female household members including the children.

60 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 4-2: Type of Household Equipment

Household equipment

Bicycle Motorcycle Furniture Car Mobile Radio Television Mosquito nets

The above household equipment will not be affected by the project and hence will not be compensated and therefore does not generate ownership disputes among families and across gender. The assumption in this RAP is that all property is co-owned by both spouses unless stated otherwise during the census survey and asset inventory.

4.16 PROJECT IMPACTS: MAGNITUDE OF EXPECTED LOSS AND PREFERENCES

4.16.1 Magnitude of loss The project magnitude in terms of displacement significance is considered moderately low in nature in view of the fact that only 3 PAPs will lose land as a result of the project. The rest of the PAPs are on the ROW hence categorized as squatters who will lose business on a temporary basis and can re- stablish along the route once the construction is complete.

4.16.2 Preference for Compensation and Attitudes towards Relocation Most of the PAPs preferred cash as mode of compensation for loss of assets and livelihood as shown in the figure 4-15 below. 85% of the PAPs preferred this mode of compensation, while 13% preferred County Government approved trading centres and 1% preferred that their structures be rebuilt where necessary.

Figure 4-15: PAP Preferred Compensation mode

61 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

4.17 PREFERENCE FOR COMMUNICATION MEDIUM ON COMPENSATION 4.17.1 Household Perceptions in relation to project and to available compensation and resettlement options. The survey concluded that 82.09% of the PAPs were aware of the project with the remaining 17.91% being unaware.

Figure 4-16: Awareness of Proposed Project

The PAPs preferred mode of assistance is indicated in the figure 4-17 below; Figure 4-17: Preferred assistance for the PAPs

Figure 4-18: Information Source

As indicated by chart 4-18 above, • 53.73% of the PAPs received information on the project through public consultation meetings • 19.4% of the PAPs received the information from family members • 11.94% received the information from the County government • 8.96% received this information from other main sources

62 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• 2.99% received this information from the National government • 2.99% received this information from neighbors.

Majority of the household heads were of the opinion that the project will affect their source of livelihoods positively as demonstrated in the figure 4-19 below.

Figure 4-19: Project Livelihood Impacts.

4.17.2 Anticipated Impacts The anticipated impacts, fears and concerns of the PAPs are discussed in chapter 6 (stakeholder consultation). There were no other emerging issues and concerns that the PAPs or stakeholders raised for consideration by the consultant and the client.

63 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

5 LEGAL, POLICY AND INSTITUTIONAL FRAMEWORK The chapter sets out the legal operating environment for acquisition of land as anticipated in the implementation of the Project. 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.

5.1 NATIONAL RELEVANT LAWS The National Land Policy (“NLP” or “Policy”)2 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 out dated legal framework. The NLP addresses constitutional issues such as compulsory acquisition and development control.3 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.”4Under the current Constitution,5 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.6 Similarly, the NLP empowers the National Land Commission to compulsorily acquire land.7

According to the NLP, the exercise of compulsory acquisition in the past has been conducted with abuses and irregularities.8 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);9 • To harmonize the framework for compulsory acquisition to avoid overlapping mandates;10 • To establish compulsory acquisition criteria, processes and procedures that are efficient, transparent and accountable;11 • To institute legal and administrative mechanisms for the exercise of the power of compulsory acquisition by the State through the National Land Commission;12 and • 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.13

2 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 http://www.lands.go.ke/index.php?option=com_content&task=view&id=238&Itemid=48, accessed May 25, 2011. 3 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. 4 Sessional Paper No. 3 of 2009 on National Land Policy, § 45. 5 The Constitution of Kenya, 1963, was replaced in 2010. 6 Land Act, § 6, 2012. 7 Sessional Paper No. 3 of 2009 on National Land Policy. §233(d). 8 Id. at Chapter 3.2.1.1, article. 46. 9 Id. at Chapter 3.2.1.1, article. 47(a). 10 Id. at Chapter 3.2.1.1, 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.) 11 Sessional Paper No. 3 of 2009 on National Land Policy, Chapter 3.2.1.1, § 47(c). 12 Id. at Chapter 3.2.1.1, p. 47(d).

64 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

5.2 THE KENYAN CONSTITUTION (2010) The Constitution of Kenya, 2010,14 protects the sanctity of private property rights and states that no property can be compulsorily acquired by the Government except in accordance with law.15 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.16

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.17 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.18An occupant in good faith is a “bona fide” occupant. On the other hand, under the Kenyan Constitution, those who have acquired land illegally are not regarded as deserving any compensation.19 Therefore the RAP implementation will follow the OP. 4.12 which recognizes the rights of illegal land owners and will compensate them for loss of structure and livelihood/disturbance allowance.

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.20 These principles must be implemented through a national land policy reviewed regularly by the national government and through legislation.21

13 Id. at Chapter 3.2.1.1, §47(e). 14 The Constitution of Kenya, 2010, was adopted by the Government of Kenya on 27 August 2010. The full text is available at http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Constitution/Constitution_of_Kenya2010.pdf, accessed May 25, 2011. 15 Constitution of Kenya, art. 40. 16 Id. 17 The Land Act, 2012 The Government of Kenya, Section 8. 18 Constitution of Kenya. Id. at art. 40(5). 19 Constitution of Kenya. Id. at art. 40(3). 20 Id. at art. 60. 21 Id. at art. 60(2).

65 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

5.3 THE LAND ACT (2012) The land act 22(“LA”) is the Kenya’s framework legislation regulating compulsory acquisition of land (i.e. land, houses, easements etc.). The LA was adopted on 2nd May 2012 and provides for sustainable administration and management of land and land-based resources including compulsory acquisition.

1. Section 4 (1) provides the Guiding values and principles of land management and administration in this section bind all State organs, State officers, public officers and all persons whenever any of them— 2. Section 7 provides for the Methods of acquisition of title to land including compulsory acquisition 3. Section 9 provides for Conversion of land from one category to another in accordance with the provisions of this Act or any other written law. 4. Section 49. (1) provides guidelines of land transfers including succession related due to death 5. Part VII provides the procedure for compulsory acquisition of interest in land

This RAP has been prepared in line with the Land Act 2012 and during its implementation, the relevant sections applying to the category of PAPs will be applied. This will be in regard to all the private land that will be acquired for the project.

5.4 THE LAND LAWS (AMENDMENT) ACT 2016 The Land Laws (Amendment) Act, 2016 (No. 28 of 2016) was assented to by the President on 31 August, 2016 and came into effect on 21 September, 2016.

The Land Laws (Amendment) Act, 2016 revises the Land Act, 2012, the Land Registration Act, 2012 and National Land Commission Act, 2012. It also sets out regulations to give effect to Articles 67 (2) (e) and 68 (c) (i) of The Constitution of Kenya which deal with the National Land Commission’s function of initiating investigations into present or historical land injustices and reparation and, prescribed minimum and maximum land holding acreages for private land respectively. The following is a brief outline on the key changes introduced by Land Laws (Amendment) Act to the Land Act, No. 6 of 2012.

5.4.1 Elements of Land Act 2012, 2016 Lessee’s pre-emptive rights of allocation Timelines have now been set in respect of the renewal of an expired leasehold tenure. The Commission is required to notify the lessee of the pre-emption rights of allocation within five years before the expiry of a leasehold tenure. Thereafter, the lessee has a period of one year from the notification to respond to it.

Pre-emptive allocation rights are still reserved only for the Kenyan citizens and only where the land is not required by the national or county government for public purposes. The amendment however does not provide for a mechanism to challenge the refusal to renew the lease.

Clarification of the roles of the National and County Government and the National Land Commission

Cabinet Secretary The Cabinet Secretary has been granted the following additional powers:

22 Land Act, 2012.

66 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

1. the power to provide policy direction regarding all classes of land in consultation with the National Land Commission (the Commission) where appropriate 2. the power to provide to coordinate the development and implementation of a National Land Information System in collaboration with the Commission, and 3. the power to administer and undertake all dealings including registration of private land interests subject to the provisions on compulsory acquisition.

5.4.2 The National Land Commission Reservation of public land for a purpose in the public interest is still being carried out by the Commission. The Commission is however now required to do any such reservation upon the request by the National or County Government. The Land Act now also provides that such an allocation does not prevent the reserved land from being allocated or developed.

The Commission is now required to maintain a register containing: a) the particulars of all public land converted to private land by allocation b) the names and addresses of all persons whose land has been converted to public land through compulsory acquisition or reversion of leasehold c) particulars of community land converted into public land, and d) such other details as the Commission may consider necessary.

The Land Act also now expressly provides that a lease or license for public land shall be issued by the Commission and shall be registered by the Chief Lands Registrar.

▪ Limitation on dealing with controlled land without the consent of the Cabinet Secretary ▪ No transaction in controlled land, including a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary.

Non-Retrospective application Section 78 of the Land Act is amended to eliminate the retrospective application of the Land Act in respect of charges save for the requirement to serve notice to spouses and other persons who were not required to be served under the repealed Acts of Parliament in the realization of any charge or mortgage.

Sale of land whose title has been deposited under an informal charge

A charger is now prohibited from possessing or selling land whose title documents have been deposited by a chargee under an informal charge without an order of the court.

Priority of charges Parties to a charge can now provide for the ranking of the charge within the provisions of the respective charge.

Taking possession of charged land In taking possession of charged land after default by the charger, the power of entry either peaceful or by use of reasonable force shall only be exercised after obtaining a court order.

Exercise of the Power of Sale In a sale by a private contract, the chargee shall be entitled to rely on a valuation carried out by a Valuer who is registered with the Institute of Surveyors of Kenya and the report shall in the absence of a manifest error, be conclusive in relation to the market price, provided that the valuation report shall at the time of sale be not more than six months old.

67 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Calculation of interest on unpaid compensation The rate of interest on unpaid compensation in respect of a compulsory acquisition shall be the base lending rate set by the Central Bank of Kenya prevailing at that time. Previously interest would have been based on the prevailing bank rates.

Land Settlement Fund Board of Trustees The Land Act has been amended to include express provisions prohibiting unlawful occupation of private, community or public land. The amendments also set out the procedure for eviction for any such unlawful occupants.

Easements and analogous rights There no longer exists a power by the proprietor of a dominant land to cancel and extinguish of easements and analogous rights.

Prohibition of unlawful occupation of land and procedure for eviction Unlawful occupation of private, community or public land is now expressly prohibited. The Act also now sets out a procedure for eviction for any such unlawful occupants.

Land Compensation Fund The Land Compensation Fund has been abolished. The object and purpose of the abolished fund was to provide compensation to any person who, as a result of the implementation of any of the provisions of the Land Act by the National Government or County Government suffered any loss or deprivation or diminution of any rights or interests in land or any injurious affection in respect of any ownership of land.

Minimum and Maximum Land Holding Acreages The Cabinet Secretary is now empowered to publish guidelines on the penalties for noncompliance with the provisions of Constitution and the respective legislation.

5.5 OTHER RELEVANT NATIONAL LAWS 5.5.1 National Land Commission Act 2012 The National Land Commission (NLC) 2012 will undertake compensation. NLC is an independent government commission whose establishment was provided for by the Constitution of Kenya, 2010 to, amongst other things, manage public land on behalf of the national and county governments, initiate investigations into present or historical land injustices and recommend appropriate redress, and monitor and have oversight responsibilities over land use planning throughout the country. [1] It was officially established under The National Land Commission Act, 2012.Pursuant to Article 67(2) of the Constitution, the functions of the Commission is — • to manage public land on behalf of the national and county governments; • Compulsory acquire land for national and county governments • Compensate acquired land on behalf of national and County government • To recommend a national land policy to the national government; • To advise the national government on a comprehensive Programme for the registration of title in land throughout Kenya; • To conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; • To initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;

68 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• To encourage the application of traditional dispute resolution mechanisms in land conflicts; • To assess tax on land and premiums on immovable property in any area designated by law; and • Monitor and have oversight responsibilities over land use planning throughout the country.

Under the National Land Commission Act, the Commission shall: ▪ On behalf of, and with the consent of the national and county governments, alienate public land; ▪ Monitor the registration of all rights and interests in land; ▪ Ensure that public land and land under the management of designated state agencies are sustainably managed for their intended purpose and for future generations; ▪ Develop and maintain an effective land information management system at national and county levels; ▪ Manage and administer all unregistered trust land and unregistered community land on behalf of the county government; and ▪ Develop and encourage alternative dispute resolution mechanisms in land dispute handling and management. ▪ Implement Settlement Programmes on behalf of national and county governments as outlined in section 134 of the Land Act. ▪ Administer the Land Settlement Fund in accordance with section 135 of Land Act 2012 ▪ Manage the Land Compensation Fund ▪ Identify ecologically sensitive areas that are within public land and demarcate and take any other justified action on those areas and act to prevent environmental degradation and climate change in accordance with the Land Act. ▪ Reserve public land for the establishment of approved settlement Programmes, and where public land is not available, purchase private land subject to the Public Procurement and Disposal Act, 2005 or any other law as provided for in section 134 (5) of the Land Act. ▪ Set aside land for investment purposes in accordance with section 12(3) of the Land Act. ▪ Approve compulsory acquisitions, way leaves, easements and analogous rights. ▪ Ensure that the investments, in land benefit local communities and their economies. ▪ Make regulations prescribing the criteria for allocation of public land, such regulations to prescribe forms of ownership and access to land under all tenure systems. ▪ The procedure and manner of setting aside land for investment should respect mechanisms of benefit sharing with local communities.

As a result, NLC will compensate all affected PAPs, since legally they are the constitutional body charged with this responsibility.

5.6 THE VALUERS ACT (1985) 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 Act23 establishes the Valuers Registration Board, which regulates the activities and practice of registered Valuers. All Valuers must be registered with the

23 The Valuers Act, Chapter 532, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php, accessed May 25, 2011.

69 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

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.24 The Valuers Act does not provide for a description of the valuation procedures and methods. The 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; ▪ False or misleading statement caused by omission or suppression of a material fact;25 and ▪ The acceptance of “any professional valuation work which involves the giving or receiving of discounts or commissions.”26

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”27 and are paid by those who requested the valuation.

This RAP has been developed by a registered land valuation expert and hence fulfilling the requirement of the Valuers Act which requires use of such experts only.

5.7 HOUSING POLICY The overall goal of this Housing Policy is to facilitate the provision of adequate shelter and a healthy living environment at an affordable cost to all socio economic groups in Kenya in order to foster sustainable human settlements This will minimize the number of citizens living in shelters that are below the habitable living conditions it will also curtail the mushrooming of slums and informal settlements especially in the major towns. Even though the project is implemented in informal areas, there will be no impact on any informal residential houses as a result of the project because of the alignment of the project on the ROW hence avoiding residential structures.

5.8 EVICTIONS GUIDELINES 2010 According to the Eviction Guidelines section 4.9.1 drafted by Ministry of Lands (2010), the Government shall ensure that evictions only occur in exceptional circumstances. Evictions require full justification given their potential extremely negative impact on a wide range of international recognized human rights. Any eviction must be warranted by law, reasonable in the circumstances, proportionate and can only be carried out in accordance with the Guidelines and international human rights and humanitarian law.

The Government shall ensure that exceptions to the prohibition on forced evictions such as the ‘interest of society’ or ‘public interest’ should be read restrictively, so as to again ensure that evictions only occur in exceptional circumstances. Where eviction is considered to be justified it should be carried out in strict compliance with the following procedures: -

(a) Appropriate notice given to the affected individual or groups clearly stating the modalities, day

24 Government of Kenya, Kenya Gazette notice no. 2892, March 18, 2011. Registered and Practicing Valuers. 25 The Valuers Act, § 24 and Legal Notice no. 32. 26 Land Act 2012, article 128. 27 Legal Notice 32.

70 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

and time of the eviction. (b) Consultations with the affected individual or group on the proposed eviction modalities and resettlement plans. (c) Holding of public hearing with affected persons and other stakeholders to provide an opportunity to discuss alternative proposals for resettlement. (d) Provide opportunity for the parties to seek legal redress where there is a stalemate or dispute. (e) The eviction notice should contain a detailed justification for the decision, among others:- (i) Be a language that is understood by all individuals concerned (ii) The full details of the proposed alternative (iii) Where no alternatives exist, all measures taken and foreseen to minimize the adverse effects of evictions

Section 4.95 on Alternative land and housing states that the Government shall ensure that evictions do not result in individuals being rendered homeless or vulnerable to the violation of other human rights. The Government shall, where those affected are unable to provide for themselves, take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.

There will be no eviction of PAPs as a result of this project. All PAPs including squatters who are the majority will be compensated.

5.9 SEXUAL OFFENSES ACT 2012 An Act of Parliament that makes provision about sexual offences aims at prevention and the protection of all persons from harm from unlawful sexual acts, and for connected purposes. Section 15, 17 and 18 below are mainly focused on sexual offenses on minor (children).

Under Section 15 it is an offence for Any person who - (a) Knowingly permits any child to remain in any premises, for the purposes of causing such child to be sexually abused or to participate in any form of sexual activity or in any obscene or indecent exhibition or show; (b) acts as a procurer of a child for the purposes of sexual intercourse or for any form of sexual abuse or indecent exhibition or show; (c) induces a person to be a client of a child for sexual intercourse or for any form of sexual abuse or indecent exhibition or show, by means of print or other media, oral advertisements or other similar means; (d) takes advantage of his influence over, or his relationship to a child, to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show; (e) Threatens or uses violence towards a child to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show; (f) Intentionally or knowingly owns, leases, rents, manages, occupies or has control of any movable or immovable property used for purposes of the commission of any offence under this law

Under Section 17 it is an offence for Any person who - (a) Intentionally causes or incites another person to become a prostitute; and (b) intentionally controls any of the activities of another person relating to that persons prostitution; and does so for or in expectation of gain for him or herself or a third person, is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years or to a fine of five hundred thousand shillings or to both.

Under Section 18 it is an offence for Any person who -

71 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

(1) Any person who intentionally or knowingly arranges or facilitates travel within or across the borders of Kenya by another person and either - (a) Intends to do anything to or in respect of the person during or after the journey in any part of the world, which if done will involve the commission of an offence under this Act; or (b) believes that another person is likely to do something to or in respect of the other person during or after the journey in any part of the world, which if done will involve the commission of an offence under this Act, is guilty of an offence of trafficking for sexual exploitation. (2) A person guilty of an offence under this section is liable upon conviction, to imprisonment for a term of not less than fifteen years or to a fine of not less than two million shillings or to both.

Contractors will be required to prepare code of conduct documents addressing sexual exploitation and statutes to prohibit the same.

5.10 CHILD RIGHTS ACT 2012 This Act of Parliament makes provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children. It also makes provision for the administration of children's institutions, gives effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Section 15 states that a child shall be protected from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials. The works contractor for this project will prepare a code of ethics which must clearly spell out steps for protecting children against any form of abuse in accordance with this Act. This will be part of the contractual agreement and award with MOWASSCO.

5.11 LABOUR RELATIONS ACT 2012 An Act of Parliament to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labor relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes. This Act in Section II Part 6 provides for freedom of employees to associate; section 7 provides for protection of rights of employees; Part 9 provides for adjudication of disputes and Part 10 provides for protection of the employees to hold strikes and lock outs.

5.12 MATRIMONIAL PROPERTY ACT NO 49 OF 2013 Ownership of matrimonial property Part III (clause 7) states that Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. This also includes assets like land.

Equal Status of Spouses (Section 4) The Act (section 4) further provides that a married woman has the same rights as a married man: to acquire, administer, hold, control, use and dispose of property whether movable or immovable; to enter into a contract; and to sue and be sued in her own name.

Rights and Liabilities of Individuals (Section 5) The Act (section 5) States that property acquired or inherited before marriage is not part of matrimonial property.

72 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Ownership of Matrimonial Property (Section 7) The Act (section 7) states that where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided (not equally) between the spouses (emphasis supplied)

Property Rights in Polygamous Marriages (Section 8) The Act (section 8) states that if the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved • matrimonial property acquired by the man and the first wife, before the man married another wife, shall be retained equally by the man and the first wife only; • matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the parties; • it is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives; • any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.

SPECIAL PROVISIONS ON MATRIMONIAL PROPERTY (Section 12) The Act (section 12) states that matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage without the consent of both spouses (See section 12(1)). • Spouses in marriages, including the man and any of the man’s wives in the case of a polygamous marriage, have an interest in matrimonial property capable of protection by caveat, caution or any law in force on registration of title deeds. • A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court. • A spouse shall not be evicted from the matrimonial home by any person except- • in execution of a decree; • by a trustee in bankruptcy; or • by a mortgagee or chargee in exercise of a power of sale or other remedy • The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.

The project will affect PAPs who are in marriages or single (female headed household). These household heads may be dispossessed of their assets. There is also a likelihood of male household heads wanting to keep all the compensation arising from loss of assets. In order to avoid this issue, a requirement of opening joint bank account for households will be enforced during the RAP implementation by NLC and the project. It will be a mandatory requirement for all PAPs who are in a marriage to open joint bank accounts for compensation.

5.13 CONSTITUTIONAL PROVISIONS AND DISABILITY The COK 2010, (chapter 4, part III), Application of Rights (clause 54) states: A person with any disability is entitled: - (a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning; (b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person; (c) to reasonable access to all places, public transport and information; (d) to use Sign language, Braille or other appropriate means of communication; and (e) to access materials and devices to overcome constraint arising from the person’s disability.

73 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

(2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

5.14 LAND ACQUISITION PROCESS IN KENYA 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 defense, 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.

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. 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.

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.28 It will then serve a copy of the notice to every person interested in the land and deposit the same copy to the Registrar29 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.30 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, geo-references the land intended for acquisition.

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.

28 The Kenya Gazette is the official government journal in Kenya published by the Government Printing Press. 29 Land Act, 2012, 107 30 Government of Kenya 1994. 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, http://www.kenyalaw.org/CaseSearch/case_download.php?go=97115264151454584840489&link=, accessed May 25, 2011. 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, http://www.kenyalaw.org/CaseSearch/view_preview1.php?link=49186237036025529910634, accessed May 25, 2011.

74 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

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 compensation31 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.32 Determination of the 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.33

Matters not to be considered in determining compensation: 1. The degree of urgency, which has led to the acquisition. 2. Any disinclination of the person’s interest to part with the land. 3. Damages sustained by the claimant, which will not represent a good cause of action. 4. 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. 5. Increased land value accrued by its future use. 6. Any development at the time of acquisition notice, unless these improvements were necessary for maintaining the land.34

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

31 Schedule explaining ‘just compensation’ has not been assessed and released by NLC. The Land Act 2012 say NLC should develop the schedule. 32 Id. at article 112 and article 111. 33 Schedule 2 governing compensation 2000. 34 Schedule 3 governing compensation for compulsory acquisition

75 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

days before the inquiry meeting and serve the 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.35

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.36 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.

Award of compensation The Land Act 2012 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.37The law could be interpreted that any dispossessed person shall be awarded the market value of the land.38 The new law is silent on relocation support or livelihood/disturbance allowance support. Therefore, in this RAP, the principles of OP. 4.12 will take precedence and will be applied instead of the requirements or restrictions of the Land Act which do not seem to offer relocation support or livelihood disturbance allowance. OP. 4.12 require that PAPs be provided with additional support including offer relocation support or livelihood disturbance allowance. MOWASSCO is committed to meeting the principles of OP. 4.12

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.39NLC 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.40 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

35 Land Act, 2012 (112). 36 Id. at article 112. 37 Land Act, 117. 38 Land Act, Schedule 39 Land Act, 115 40 Land Act, 115

76 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

land.41 Section 119 provides a different condition and states that the NLC “as soon as practicable” will pay such compensation.42 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.43

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 vested in the national or county Government as public land free from any encumbrances.44

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 Court45. 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

41 Land Act, This language reflects the language of the Kenya Constitution, 1963. 42 Land Act, 119 43 Constitution of Kenya, article 162 44 Land Act, 115 and 116 45 Land Act 2012, Section128

77 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

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 including traditional dispute resolution mechanisms.

Any person whose land has been compulsorily acquired may petition the Environment and Land Court for redress with respect to:

1. The determination of such person's right over the land; 2. The amount offered in compensation; and 3. The amount offered in compensation for damages for temporary dispossession in the case of the Government’s withdrawal of its acquisition of the land.46

Parties will pay fees as determined by Land and Environment or the court may choose to waive them completely or in part on grounds of financial hardship.47

5.15 WORLD BANK SAFEGUARD POLICY ON RESETTLEMENT The World Bank Operational Policy 4.12, Framework of November 2002, is a common standard of approved principles and guidelines for compensation/resettlement for this type of project. World Bank principles should, however, be harmonized with the national laws of the subject country where the project is to be funded to the extent possible. Where there are differences, World Bank OP 4.12, applies.

World Bank’s Safeguard Operational Policy O.P. 4.12 on ‘Involuntary Resettlement’ requires that displaced persons should be compensated at full replacement cost, assisted with relocation/resettlement and during the transition period.

For this Project, land for land compensation will not be feasible for all the PAPs due to the challenge of finding alternative land in the project area. Furthermore, the project is acquiring way leave and hence the fraction of land to be acquired is not significant and in all cases, less than 20% of the total land sizes for the PAPs and hence not rendering the lands unviable.

Majority of the PAPs also preferred cash compensation for losses incurred as a result of the project. The project area has an active housing market capable of absorbing the residential and commercial PAPs who will be physically and economically displaced by the proposed project.

With respect to squatters, the OP. 4.12 and Kenyan land laws do not provide entitlement to land other than cash for loss of structures and livelihoods restoration which is provided in this RAP. The World Bank Group O.P. 4.12 on Involuntary Resettlement is, therefore, applicable to the project. The main features of this directive are as follows: a) All viable alternative project designs should be explored to avoid or minimise the need for resettlement and when it cannot be avoided, to minimise the scale and impacts of resettlement. b) Resettlement measures are to be conceived and executed as development activities. c) Assistance should be given to the community in their efforts to improve former production levels, income-earning capacity and living standards, or at least restore them to the levels at which they would have been without the project.

46 Land Acquisition Act. at article 29(7). 47 Land Acquisition Act at article 43.

78 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

d) Displaced persons should be: a. Compensated at full replacement cost prior to the actual move; b. Assisted with relocation; and c. Assisted and supported during the transition period. e) Particular attention will be given to socially disadvantaged and vulnerable groups such as the very poor, the disabled, minorities, orphans and child-headed families, squatters and others without clear legal rights to land, those incapacitated by advanced age, among others. This has been complied with. Vulnerable groups have been identified and earmarked for special assistance). f) Communities will be given opportunities to participate in planning, implementing and monitoring their resettlement/compensation. This has been complied with; and extensive community and stakeholder consultations were undertaken. Also, the views of the community members and other stakeholders have been considered and integrated into the RAP.

5.16 DIFFERENCES BETWEEN KENYAN LAWS AND THE WORLD BANK POLICY There are some differences between the World Bank policy and the laws of Kenya on resettlement and compensation. Table 5-2 outlines World Bank OP. 4.12 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. In general, where there is a difference between Kenyan law and OP 4.12, the latter shall prevail.

79 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 5-1: Comparative Analysis of World Bank OP 4.12 and Government of Kenya requirements including measures to address gaps

OP 4.12 Kenyan Legislation Comparison Gap filling measures

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

OP 4.12 Kenyan Legislation Comparison Gap filling measures

PROCESS REQUIREMENTS Consultation: Displaced persons should The Land Act outlines procedures for Same as World Bank Implement consultation procedures be meaningfully consulted and should consultation with affected population by the as outlined in both Kenyan legislation have opportunities to participate in NLC and grievance management and World Bank. planning and implementing resettlement procedures. programs

80 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

OP 4.12 Kenyan Legislation Comparison Gap filling measures

Grievance: For physical resettlement, Land Act 2012 clearly outline the steps and Kenyan legislation meets OP4.12 appropriate and accessible grievance process for grievance redress that includes requirements. N/A mechanism will be established. alternative dispute resolution, re-negotiation with NLC and is backed by the judicial system through Environmental and Land Court

Eligibility Criteria The Land Act 2012 provides that written and Kenya’s Land Law defines eligibility as “Ensure all users (including illegal Defined as: unwritten official or customary land rights both formal (legal) and informal squatters, laborers, rights of access) (a) those who have formal legal rights to are recognized as valid land right. The Law (customary) owners of expropriated of affected land are included in the land (including customary and traditional provides that people eligible for land. However, it does not specifically census survey and compensated for rights recognized under the laws of the compensation are those holding land tenure recognize all users of the land to be loss of assets and livelihood. PAPs country); rights compensated. with formal legal rights to lands will (b) those who do not have formal legal Land Act also recognizes those who have The constitution of Kenya on the other also be compensated for land rights to land at the time the census interest or some claim in the land such hand recognizes ‘occupants of land’ begins but have a claim to such land or pastoralist or who use the land for their who do not have title and who the state assets—provided that such claims are livelihood. has an obligation to pay in good faith recognized under the laws of the country The constitution recognizes ‘occupants of when compulsory acquisition is made. or become recognized through a process land even if they do not have titles’ and identified in the resettlement plan (see payment made in good faith to those Annex 10 A, para. 7(f)); and19 occupants of land. However, this does not Implement cut-off procedures as (c) those who have no recognizable legal include those who illegally acquired land outlined in the RPF and Kenyan Law right or claim to the land they are Same as World Bank occupying To determine eligibility: Land Act 2012 provides for census through Carry out resettlement census. Cut off NLC inspection and valuation process date for eligibility is the day when the census begins.

81 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

OP 4.12 Kenyan Legislation Comparison Gap filling measures

Measures: Preference should be given to Legislation provides for land for land Land for Land provided for in the Land Ensure ALL users (including illegal land based resettlement strategies for compensation but the Land Act 2012 does Act based on agreement by the PAP. squatters, laborers, rights of access) displaced persons whose livelihoods are not state whether preference should be Cash based compensation seems to be of affected lands are included in the land-based. granted to land to land compensation. the preferred mode of awarding census survey or are paid Cash based compensation should only be Land Act 2012 appears to prefer mode of compensation to the affected population made where (a) land taken for the project compensation by the Government to the by Government of Kenya (b) If the impacts include physical is a small fraction of the affected asset affected population. relocation include measures to ensure and the residual is economically viable; that the displaced persons are (b) active markets for lost assets exist (i) provided assistance (such as moving and there is sufficient supply of land and ‘Just compensation’ as stipulated in the allowances) during relocation; and housing; or (c) livelihoods are not land- Land Act talks of prompt, just compensation Land Act not yet specifically defined. (ii) provided with residential housing, or based. before the acquisition of land. However, housing sites, or, as required, agricultural World Bank OP4.12 Article 6(a) requires interpretation of just compensation is yet to sites for which a that displaced persons are provided with be clearly outlined through a specific combination of productive potential, prompt and effective compensation at full schedule defining just compensation have OP 4.12 provides related land locational advantages, and other factors replacement cost for losses of assets not been put in place. transaction fees. Land Act not clear on is at least equivalent to attributable directly to the project. If this. the advantages of the old site.13 physical relocation is an impact, displaced Attorney’s fees, cost of obtaining advice or (c) Ensure that displaced persons are persons must be provided with assistance cost incurred in preparing and making (i) offered support after displacement, for during relocation and residential housing, written claim not in the Land Act other than a transition period, based on a housing sites and/or agricultural sites to ‘just compensation’ reasonable estimate of the at least equivalent standards as the time likely to be needed to restore their previous site. Replacement cost does not livelihood and standards of living; and take depreciation into account. In terms of OP4.12 Ensure that all resettlement options (ii) provided with development assistance valuing assets, if the residual of the asset agreed upon with PAPs are implemented in addition to compensation measures being taken is not economically viable, The Act is does not out rightly stipulate BEFORE displacement of affected persons (iii) such as land preparation, credit compensation and assistance must be assistance for relocation but we can and taking possession of any land”. facilities, training, or job opportunities. provided as if the entire asset had been interpret that relocation cost will be included taken. in just compensation. Compensation and other assistance required for relocation should be Implement prompt and effective

82 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

OP 4.12 Kenyan Legislation Comparison Gap filling measures determined prior to displacement, and compensation at full replacement preparation and provision of resettlement cost for the losses of the assets. sites with adequate facilities, where required

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 Valuation is covered by the Land Act 2012 Though one could argue that there is Apply the World Bank OP4.12 structures, “replacement cost” is defined and stipulates, as already mentioned, that some form of consistency between the valuation measures, as outlined in as follows: the affected person receive just Kenyan Law and World Bank OP.4.12, Section 6, in order to fully value all compensation from NLC, as determined by interpretation of ‘just compensation’ has affected assets in a consistent National Land Commission. Valuers Act not been defined. manner. For agricultural land, it is the pre-project stipulates that a residual amount of 0.5% of or pre-displacement, whichever is higher, the total valuation of an asset is expected to Interpretation of just compensation not Apply World Bank OP4.12 on market value of land of equal productive pay the valuer. clear valuation and compensation potential or use located in the vicinity of Land Act 2012 talks of just compensation for measures. the affected land, plus the cost of the lost assets but it is not specific of the preparing the land to levels similar to exact amount or procedures on the same. those of the affected land, plus the cost of any registration and transfer taxes. For houses and other structures, it is the Interpretation of just compensation not Apply World Bank OP4.12 on market cost of the materials to build a The Land Act 2012 stipulates just clear. valuation and compensation replacement structure with an area and compensation. procedures. 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

83 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

OP 4.12 Kenyan Legislation Comparison Gap filling measures construction site, plus the cost of any labor and contractors’ fees, plus the cost of any registration and transfer taxes.

Monitor Adequate monitoring and evaluation of According to Land Act can be undertaken Both Kenyan Law and World Bank Implement as prescribed in the activities to be undertaken. County Land Boards. policy advocates for Monitoring and World Bank OP4.12 and Kenyan Evaluation Law.

84 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 5-3: Comparative Analysis of World 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 Users Land Act not clear on Land Users although in some cases Entitled to compensation for crops and investments made on they can receive some form of compensation depending on the land; livelihood must be restored to at least pre-project the determination by NLC levels.

Land Owners Compensation based on current market value of land Compensation based on replacement cost of land

Owners of Temporary Buildings The constitution of Kenyan respects the right to private Entitled to in-kind compensation or cash compensation at full property and in case of compulsory acquisition, just replacement cost including labor and relocation expenses, compensation must be granted to the owner for the loss prior to displacement. temporary buildings. Occupancy in good faith. Owners of Permanent buildings The constitution of Kenyan respects the right to private Entitled to in-kind compensation or cash compensation at full property and in case of compulsory acquisition, just replacement cost including labor and relocation expenses, compensation must be granted to the owner for the prior to displacement. permanent building Perennial Crops Compensation for the loss of crops Full replacement cost for the loss of crops valued at market price

Relocation assistance and livelihood restoration program. Informal Traders/Mobile Traders/Vendors/Squatters Not specific on livelihood. The constitution says some pay Compensation and Livelihood restoration to pre-displacement maybe made in good faith level.

85 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

5.17 LAND TENURE AND RIGHTS IN KENYA 5.17.1 Land Tenure Regimes and Administration Land tenure in Kenya is classified as public, community or private.48 Public land consists of government forests (other than those “lawfully held, managed or used by specific communities as community forest, grazing areas or shrines”49), government game reserves, water catchment areas, national parks, government animal sanctuaries and specially protected areas.50 The National Land Commission will manage public land.51 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.”52 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).

5.17.2 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: 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.

5.17.3 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. The Land Registration Act, 2012, governs freehold land. 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.

5.17.4 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.

48 Id. at art. 61. 49 Id. at art. 63(d)(i). 50 Id. at art. 62(g). 51 Id. at arts. 62(3), 67(2)s (a). 52 Id. at art. 63(d)(i) and (ii).

86 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

5.17.5 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 geo- referenced 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 • 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 instrument53.

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.

5.17.6 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 include 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.

5.18 INSTITUTIONAL RESPONSIBILITIES Responsibility for ensuring that all aspects of resettlement and compensation planning and implementation are taken into consideration falls to project proponents or project implementation bodies. The main institutions involved in land management, compensation and resettlement are briefly described below:

• Mombasa Water and Sewerage Company: • National Land Commission (NLC): • County Government of Mombasa

53 National Land Commission Act, 2012, Section II, article 5(1)

87 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

The institutional involvement and roles are highlighted in Table 5-2 below.

88 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 5-2: Institutional Involvement and Roles in Resettlement Compensation

Institution Roles expected Sourcing for counterpart funds for the RAP implementation and implementing MOWI (KWSCRP) & MOWASSCO all aspects of the RAP Approving payment/compensation to the PAP, and ensuring prompt, fair and adequate compensation.

National Land Commission Monitoring of compensation/resettlement, evaluation of the RAP implementation, coordinating between different stakeholders, and supervision of the RAP implementing team and the overall RAP implementation administration Support the resettlement process including validation of census and asset County Government of Mombasa valuation, supporting informal traders during transitional period.

89 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

6 STAKEHOLDER CONSULTATIONS Consultations and dialogue with stakeholders including PAPs is very critical for successful resettlement and/or compensation of the affected. The process of consultations will continue until implementation of the RAP is completed. In the process of preparing this RAP, the Consultant undertook extensive consultations with the PAPs to update existing information. During these consultations the communities were encouraged to (i) be open and make known their concerns and claims; (ii) be free to access the grievance process to be formally established for lodging Complains; and (iii) allow and give the necessary assistance to the M&E team. In finalization and preparation of the payment schedules and actual payment, NLC and MOWASSCO personnel will continue to conduct a series of consultations and counseling of the PAPs and affected communities.

6.1 Community Members and Stakeholder Consulted A total of 3 community consultation meetings were held in the project affected areas with the PAPs. A diversity of community stakeholders including National and County Government administrators (chiefs, assistant chief, ward administrators, village elders, etc.), village elders, business owners, men and women were consulted in pre-arranged public meetings held in public areas i.e. bus stages identified along the proposed line route. The stakeholders were mobilized by chiefs and village elders. Chiefs deployed their assistants and village headmen to make announcements at location centres informing the public about planned meetings. The objectives of the consultation meetings were:

• To enlist the support and cooperation of National and County Government officials and other stakeholders • Create awareness of the proposed project especially to those who may be directly affected • To obtain stakeholders‟ responses, feedback and concerns on the project • To obtain socio- economic and environmental information on the community

First, the agenda of the meeting was set and agreed on between the project team and community members. The meeting then proceeded; communities were informed about the proposed project through presentations by the consultants and KWSCRP/PMU and MOWASSCO representatives. They were informed about the purpose of the meeting. The presentations highlighted the project background, objectives, expected upcoming activities, social economic information, environmental information and availability of skilled and unskilled labor including potential for business. After the presentations the community was given opportunity to give their views, comments and queries. Questions were answered, clarifications offered and their recommendations received.

At the end of the meeting, minutes of the discussions were read out to the participants for approval as a true representation of what was discussed. Photographs of the meeting were taken with the consent of the participants accompanied with signed lists of attendance.

During household and public consultations issues of concern on the project, its implementation and implications were discussed at length. Generally, the public did not express any resistance on the project. The communities were assured that the project will ensure that most of the unskilled jobs are offered to communities living in the project area.

In addition, MOWASSCO was urged to ensure that there would be access to water for all. There was general concern on delays normally experienced by in compensation as well as undervaluing of structures, land and crops. Such delays and undervaluing has the potential of creating grievances that may eventually lead to compulsory acquisition of land.

90 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

The RAP team undertook public consultations at ward levels to ensure that all concerns regarding the project implementation activities and the associated impacts on the local people and their livelihood activities were raised and openly discussed. The stakeholders consulted included representatives from the following institutions and areas:

Table 6-1: Community Consultations DATES VENUE NO.OF PARTICIPANTS 9th May 2017 Mikindani Bus Stage 71 17th May 2017 Jomvu – Next to Total Fuel Station 43 15th May 2017 Miritini Bus Stage 33

Table 6-2: Consultation with Institutions DATE MEETING VENUE # OF PARTICIPANTS 15th May 2017 Deputy County Commissioner’s Office - Mombasa 7

6.2 COMMUNITY AND STAKEHOLDERS CONCERNS/VIEWS The community, PAPs and key stakeholders were invited to attend the public consultation meetings by the Assistant Chief and Chiefs Offices, public announcement through local religious leaders, through direct phone calls and through market committee where direct contact with the PAPs and key stakeholders were made. The summary views of the community members and institutional stakeholders consulted are presented in the tables below which show the issues raised by the PAPs, responses from the RAP Consultant and MOWASSCO as well as the venue of the meetings.

Table 6-3: Consultations with Mombasa County Government Meeting at Deputy County Commissioner Office) Questions/comments Responses How are you going to ensure that there are no ghosts PAPs Names and details of everyone within the routing will be infiltrating the process? documented at the initial stage .A verification exercise will also be carried out before any resettlement is done. How will you ensure the prevailing political environment do We will consult both the central and county governments for not interfere with the project? inclusivity reasons and will make it very clear during public participation that the RAP and EIA studies must not be politicized. What will be the role of the provincial administration in this The provincial administration will play a very critical role as whole process? they will provide a linkage with the community during consultations.

They will also assist in recruiting the non-technical staff e.g. Enumerators and also help in identifying genuine PAPs How will those affected be compensated? After the census survey and asset inventory is completed, valuation will be undertaken and the cost of compensation for each PAP will be determined. All the affected PAPs will be compensated in cash for loss of assets and livelihoods.

The National Land Commission which is the body mandated to oversee compensation on matters related to land acquisition for public good, will oversee the entire process of compensation as per the NLC Act.

Compensation values will vary based on the category of PAPs but will also include disturbance allowance, livelihood restoration, right to salvage materials etc. Will the youth be involved in construction? Yes the youth (locals) will be involved especially in areas where no skills are required.

91 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 6-4: Consultations with Stakeholders in Jomvu-next to total petrol station on 17/05/2017 Questions/Comments Responses We have been hearing about this project for a while now, The project will begin as soon as all the processes including when will it kick off? verification and compensation are done. Will each individual affected person know immediately how Each PAP will only be able to know the amount after the much they will get as compensation census process is completed and the valuation done In cases where land owners have no documentation ie. Title Yes, everybody whose property will be affected by the deeds, what would happen? Will they be compensated? project will be compensated after verification process. Land owners will be compensated just for easement since the pipeline will affect only a small section of their parcels of land. We have had cases where jobs in such projects are only It will be our recommendation that manual jobs that do not given to out siders. Will that be the case in this project as need any skills are given to the locals and recruitment done well? through the local administration the same way the research assistants have been recruited Is this a County or Central Government’s project? This is a Central Government’s project but we will urge all the players to keep it free from politics. Will the water supply be free? The water supply will not be free. Every consumer will apply for a connection. A meter will be installed and the monthly payment will be based on the usage What about if the pipeline will be passing through my house In cases where both land and structures will be affected, we or shop, will I still be compensated for easement only? will take measurements for both land and the structure. We will also take a picture of the structure, value and compensate the individual for both land and the structure. If for example I sell vegetables, along the routing; will I still There will be temporary disruption of trading activities during be able to sell during and after construction? the construction. All PAPs who will be affected during this phase on a temporary basis will receive transition allowance and transportation cost where applicable. In the past we have seen contractors doing very shoddy There will be a Monitoring and Evaluation system put in jobs, what measures are you going to put in place so that place to check on such cases. this is avoided? The area experiences a lot of flooding during heavy rains. Our main focus right will be to concentrate on the RAP for Are you also going to look into this? the water pipes, however we have noted the flood issue and we will recommend in our report that it is also looked into.

Table 6-5: Consultations with Stakeholders from Mikindani Area at the main bus stage on 9th May 2017 Questions/Comments Responses How will the people be compensated? After the census process, valuation will be carried out and each PAP will be compensated as per the determined value of their assets. Will the locals able to get jobs during this whole process of Yes, jobs that do not require skills will be left to the locals construction? and the recruitment will be done through the local administration offices. When will the construction work begin? The construction face will only begin after all the PAPs have been verified and compensation done Will all the residence of Mikindani get water or it will be for The project will involve the construction of both primary, the chosen few? secondary lines and even the tertiary ones so that water is supplied adequately to consumers. Application will be made by Consumers to the water service provider and upon striking an agreement a connection will be done. Will the water supply be free? The water will not be free. There will be meters for the consumer and the bills will be as per consumption. How will the census process done? RAP consultants (ESC) have prepared survey questionnaires that will be used to enumerate the PAPs, undertake census survey and conduct valuation of assets. In cases where valuation is lower than expected, how will In the event that the asset owner feels that valuation is such cases be handled? deemed low/insufficient, PAPs have the following avenues

92 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

for seeking re-course. The first step is to approach the grievance redress and compensation committees at all levels.

The second step will be to approach NLC which handles grievances based on award notices.

The final step would be to seek legal recourse via the Environment and Land Court if dissatisfied with resolutions made by NLC or GRCC. Has the issue of drainage been considered in the since The project is only focusing on the piped water but the there is serious flooding cases during rainy seasons flooding issue has been noted and will form part of our recommendation in the report. What will happen if there is a pending land case in court? If such a case arises compensation will be held in a separate account and only be made available once the conflict is fully resolved. How will the value of the assets be determined? The project team has a registered Land Valuer who will undertake the valuation of the affected assets.

Table 6-6-: Consultations with Stakeholders of Miritini Area at the main bus stage on 15th May 2017 Questions/Comments Responses When will the construction work start? The construction work will begin only after all other processes validation and finally compensation has been carried out. You know very well that land is a very big issue at the coast. All the prevailing land situations and status will be taken into So you are likely to find that most people whose land would consideration and a fair middle ground will be arrived at. be affected would not have land title deeds. How will you go about this? Will people doing businesses along the proposed routing be Yes, all those who will be affected by the project will be compensated? compensated. Those who have businesses along the routing will be paid for easement since they will be allowed to come back after the construction work is completed. Will our young people get jobs? Yes. Manual jobs that do not need skills will be left to the locals. The recruitment will be done through the office of the local administration. How will you safeguard the project from aspiring politicians The project will be free from politics as possible. especially now that its campaign period? Will the project change the current water shortage that is Yes. Without a doubt the problem of water shortage will be being experienced in Miritini area? resolved. Is the project a County government’s or National The project is the National governments through the Ministry governments? of Water and Irrigation. Besides the compensations, are there any other ways the Miritini estate and its environs is known for scarcity of water. project will benefit the locals? This will be a thing of the past as the locals will be able to access water easily. Where exactly will the pipe pass through and how will the There is a design in place that is complete; the RAP individuals know if they are affected? consultants will therefore follow the routing downloaded in their GPS machines. What portion/size of land will be compensated? The whole plot will not be compensated. Only the area that will be affected by the project. How will you handle cases where for example an individual There is a grievance redress mechanism in place, which is not satisfied with the compensation? with cooperation from the PAPs is expected to handle any issues fairly.

6.3 ISSUES RAISED BY PROJECT AFFECTED PERSONS During the census and valuation of assets, all the PAPs were consulted on a one on one basis as part of socio-economic data collection for PAPs. In the survey tool used, there were specific

93 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

questions targeting the PAPs with respect to views and perception about the project. It must be noted that the issues raised by the PAPs during the individual census and asset valuation did not vary significantly with those raised during the 3 consultations with public highlighted above because the same stakeholders engaged in the barazas were in actual fact the PAPs themselves.

While details on the consultations are in the RAP and the annex, it would be important for the RAP to document how inclusion of all groups and gender was ensured. The list of participants needs to have information on the type of stakeholder consulted and data needs to be gender disaggregated if possible. This would be important also because the RAP documents state that 14 percent of the PAP household is headed by women and women lack power and voice in the project area.

94 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

7 PROJECT POSITIVE AND ADVERSE IMPACTS

7.1 INTRODUCTION Impacts in general can be distinguished into: impacts from Project construction, and Impacts from Project operation. The RAP covers the project impacts resulting from land acquisition during construction and from the permanent Project operation. Other socio-economic impacts, i.e. impacts from construction activities such as noise, vibrations, construction traffic, presence of a large number of workforce, population influx, are covered by the ESIA and ESMP. The proposed project and its associated infrastructure is expected to directly affect people in the proposed project pipeline routing.

7.2 POSITIVE IMPACTS Access to water: A direct future positive impact will be improved water supply in urban and rural areas when the corresponding water distribution network is expanded. It will result in increased and constant supply of safe water, thereby leading to enhanced people’s health and ultimately enhancing people’s involvement in economic activities. At the project level, there would be work opportunities for unskilled labor in the project areas, thereby providing an opportunity for supplementing their income.

7.3 ADVERSE IMPACT ON LAND There will be land uptake for implementing the project, which is estimated to be approximately 0.53 ha (Table 7-0). The affected land (s) will be compensated using replacement cost method. All the land has been measures and valued and the compensation rates provided for each PAPs. Please see appendix 2 (Valuation Roll).

Table 7-0: Size of Affected Land Parcels LOCATION AND VILLAGE SIZE OF LAND PARCELS (Acres) Mikindani 0.0 Jomvu 0.0 Miritini 0.53 Total Affected Land Size 0.53

95 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

7.4 ADVERSE IMPACT ON TREES/CROPS The project will affect crops and trees owned by the 3 land owners in Miritini. The crops under cultivation include maize, beans and coconut trees. The affected crops and tress will be compensated using replacement cost method. All the crops and trees have been valued and the compensation rates provided for each PAPs. Compensation for crops and trees will also be provided to affected non titled PAPs. Please see appendix 2 (Valuation Roll).

7.5 ADVERSE IMPACT ON STRUCTURES Table 7-1 presents information on the impacted structural properties belonging to PAP. The total number of affected structures comprising of dwelling houses and supporting structures (toilets, bathrooms, granary, store rooms) and shops / commercial structures. Details of affected structures and their owners are provided in the census data base. Most of these businesses are a mix of temporary and permanent structures. The affected structures will be compensated using replacement cost method. All the structures have been valued and the compensation rates provided for each PAPs. Please see appendix 2 (Valuation Roll).

Table 7-1: Summary of Impact Area Category of PAP # of PAP Mikindani Land Owners only 00 Land and Structure Owners 00 Structure Owners 00 Squatters-With Structures 00 Squatters-Mobile Traders 58 Public Institutions 00 Graves 00

Jomvu Land Owners only 00 Land and Structure Owners 00 Structure Owners 1 Squatters-With Structures 00 Squatters-Mobile Traders 65 Public Institutions 00 Graves 00

Miritini Land Owners only 3 Land and Structure Owners 00 Structure Owners 1 Squatters-With Structures 0 Squatters-Mobile Traders 46 Public Institutions 00 Graves 00

7.6 ADVERSE IMPACT ON LIVELIHOODS Adverse impacts on livelihoods are unavoidable for some affected households due to land acquisition of their plots. Some affected households will lose their source of earning as their shops / commercial structures will be adversely impacted due to project implementation. The RAP has provided for livelihood restoration as part of the compensation for the PAPs who are losing their businesses. Please see appendix 2 (Valuation Roll).

96 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

7.7 IMPACTS ON PUBLIC AND COMMUNAL FACILITIES The project will not affect any community or public infrastructures including schools, hospitals, religious institutions among others. The pipeline routing has been designed to avoid such facilities and hence reduce the footprint of the impact.

7.8 IMPACT ON SACRED SITES The project will not affect any sacred or cultural sites including graves, shrines etc. The pipeline routing has been designed to avoid such facilities and hence reduce the footprint of the impact.

7.9 ANTICIPATED POST CONSTRUCTION IMPACTS Destruction of standing crops during routine maintenance of pipeline way-leaves: The MOWASSCO may destroy standing crops and trees due to routine maintenance work that may involve vegetation control. MOWASSCO will compensate owners whenever any crops and/or trees will be affected or destroyed during routine maintenance of the pipeline. It is anticipated that after construction of the pipelines the community members neighboring the way-leave may encroach the land for farming and other agricultural activities.

97 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

8 VULNERABLE PEOPLE

8.1 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: 1. Disabled persons, whether mentally or physically; 2. Seriously ill people, particularly people living with HIV/AIDS and other illnesses; 3. The elderly, particularly when they live alone; 4. Households whose heads are children; 5. Households whose heads are female and who live with limited resources; 6. Households whose heads have no or very limited resources; and 7. Widows and orphans.

The table below shows the category and number of vulnerable PAPs.

Table 8-0: Vulnerable PAPs (Household heads and other members) Vulnerability Numbers The elderly over 60 years 7 Women headed households/widows 5 Children under 18 years of age 0 Chronically Ill 2 Disabled 0 Households headed by orphans 0

Losses of Vulnerable PAPs

This RAP compels the KWSCRP 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:

1. 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 vulnerable people do not participate in community meetings, and their disability/vulnerability may remain unknown; 2. Identification of required assistance at the various stages of the process: negotiation, compensation, moving; 3. Implementation of the measures necessary to assist the vulnerable person; and 4. 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.

98 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Assistance may take the following forms, depending upon vulnerable persons’ requests and needs: 1. Assistance in the compensation payment procedure (e.g., specifically explain the process and procedures, make sure that documents are well understood); 2. Assistance in the post payment period to secure the compensation money and reduce risks of misuse/robbery; 3. Assistance in moving: providing vehicle, driver and assistance at the moving stage, assist the person in identifying his/her resettlement plot; 4. 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 5. Health care if required at critical periods specifically for the physically challenged, particularly the moving and transition periods.

99 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

9 ENTITLEMENT STRATEGY 9.1 ENTITLEMENT FRAMEWORK Resettlement and entitlement framework is a major integrated part of any resettlement plan. It provides the bases of calculations of costs of impacted properties and sources of earnings lost to people affected by the Project. It also puts forward the premises of formalizing eligibilities of affected persons in receiving compensation for the loss of their properties and earnings and also other resettlement and rehabilitation assistances.

Based on the pre-construction impacts identified from the Asset Inventory exercise, the types of PAP are as follows: • Individual Land user or owner (having crops, trees and structures within the project sites); • Individual structure owner • Individual crop/tree owner • Community Properties (worship/ schools); • Government Institutional PAP; and • Residence (tenant) of affected structures • Squatters/Informal business (stand owner, business operator or rent tenant, but not informal sub-tenants) • Infrastructure (ancillary to a main structure that is unaffected, such as block wall, store, outhouse, latrine, well or borehole) • Formal employment

According to the World Bank OP 4.12 procedures, the following PAPs will be eligible for compensation: (i) Those who have formal rights to land (including statutory rights of occupancy recognized under Kenyan law); (ii) Those who do not have formal legal rights to land at the time of PAP census but have a claim to such land or assets provided that such claims are recognized under Kenyan laws, or become recognized through a process identified in the resettlement and compensation plan; and (iii) Those who have no claim to land they are occupying or using.

9.2 COMPENSATION PRINCIPLES The compensation principles to be followed are derived from the national legislation and the World Bank OP 4.12 procedures on involuntary resettlement. These principles, including the valuation procedures, were all explained to the PAPs and other community members during the community dialogues and stakeholder consultations. i. Resettlement and compensation of PAPs will be carried out in compliance with relevant Kenyan laws and WB standards. In a situation where there is conflict between the national laws/Acts and World Bank policies, the latter will prevail. ii. All PAPs physically or economically displaced shall be adequately, promptly and equitably compensated before the commencement of works at the project-affected sites. All efforts will be taken to provide necessary assistance for PAPs to restore their livelihoods. iii. Special consideration will be given to especially disadvantaged and/or vulnerable people such as women, children, the very old and the unemployed. Provision will be made to

100 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

enhance their rights to resettlement and compensation payments. For example, the consent of spouses and children where it applies shall be a sought prerequisite for compensation payment, as provided by the Land Act (2012). iv. The project will promote and provide in-kind compensation as an option for especially vulnerable groups and project affected community resources and facilities. (a) The project will consider a 15 per cent livelihood/disturbance allowance in addition to the assessed compensation values for affected property. (b) that in situation of conflict between the national laws/Acts and Op/BP 4.12, the latter will prevail

9.3 ELIGIBILITY FOR COMPENSATION The concept of eligibility is used with respect to the definition of PAPs and the criteria for determining their qualification for compensation and other resettlement assistance.

9.3.1 Eligibility For Compensation and ‘Cut-Off’ Date The affected persons, irrespective of their status, are eligible for some form of assistance if they occupied the land or engaged in any livelihood income-generating activity at the affected sites before the entitlement ‘cut-off date’. The entitlement ‘cut-off’ date refers to the time when the census and assessment of PAPs and their property in the project area were carried out and ended. This was explained to the community members and PAPs during community dialogues and the PAP census. Thereafter, no new cases will be entertained for compensation. In order to avoid an influx of additional persons, cut-off date was established to be 25th May 2017. The cut-off dates were well-advertised, through discussions with PAPs and local leaders. Those who encroach on the area after the established cut-off dates will not be eligible for compensation or assistance.

The following categories are eligible for compensation: (a) People who rightfully own land (formal) outside or on ROW which will be acquired as a result of the project’s sphere of influence. (b) People who rightfully own residential or commercial structures (outside or on ROW) which will be acquired as a result of the project’s sphere of influence. (c) People who rightfully own trees and crops (outside or ROW) which will be acquired as a result of the project’s sphere of influence. (d) People who lose of income or access to places of business will be also be compensated. The list of the identified properties and owners (PAPs) is attached as Appendix 2. During the community and public consultations, compensation alternatives were explained to the PAPs and other stakeholders. The strategy for income restoration is discussed below.

9.3.2 Eligibility Both in principle and in the context of the Project, eligibility for compensation for displacement defines: ▪ Which losses of assets and income are compensated under the project, and which are not; ▪ Who is entitled to receive that compensation, and who is not; and ▪ What evidence is expected in order to support a claim for compensation?

101 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

These eligible losses and entitlements are elaborated in a detailed Entitlement Matrix.

9.3.3 Exclusion For Eligibility As described in earlier section of this RAP, all involuntary displaced persons (resettlement) are eligible for compensation with the exception of four main categories of loss, which are explicitly classified as ineligible for compensation:

• Losses arising from structures or activities in the ROW, or in any of the sub-project areas impacted by the Project, that post-date the cut-off date; • Losses claimed on the basis of intention to use the land for a particular purpose (actual prior investment in plans and permissions may be compensated, but expected future value arising from proposed future investments is excluded); • Losses claimed on a fraudulent basis or by material misrepresentation of facts e.g. of identity, ownership, employment, or nature of asset or use of land.

9.3.4 Ownership Category and Category of Losses The categories of eligible losses and PAPs eligible for compensation are those experiencing permanent or temporary losses of the following assets: a) Land owners (legal/formal land ownership) as per Land Act 2012 b) Residence (owner, tenant) of affected structures c) Formal business premises d) Squatters/Informal business (stand owner, business operator or rent tenant, but not informal sub-tenants) e) Crop/Tree owners f) Infrastructure (ancillary to a main structure that is unaffected, such as block wall, store, outhouse, latrine, well or borehole) g) Formal employment h) Annual or perennial crops, trees

Thus, all eligible affected people are entitled to appropriate compensation regardless of whether or not they have legal rights to the land. Eligibility for compensation does not create or confer a right where none previously existed — e.g. it does not make legal the illegal occupation of land.

9.4 FORMS OF COMPENSATION 9.4.1 Cash Compensation This strategy will be through adequate and prompt monetary compensation and will apply to all the PAPs. This strategy will include cash compensation for property, land and other resettlement assistance including disturbance allowance to enable all category of PAPs to restore their livelihoods as described in the entitlement matrix (see table 9.0).

9.4.2 Replacement In Kind The project will promote and provide in-kind compensation as an option especially vulnerable groups and project affected community resources and facilities. In-kind compensation will be offered for community assets, hard to-value assets, or to mitigate risk in cases of PAPs who have been identified as vulnerable or to reduce the cost of the RAP. This RAP provides for the following in-kind compensations:

102 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• Vehicular and pedestrian access from tarmac roadways: works contractor to restore access (in-kind only). Appropriate language to this effect is included in the tender documents/BOQ;

• Relocation of public utilities including power and communication lines, water and sanitation facilities will be replaced by the contractor and is part of the contractual agreement. Relocation of these services will be undertaken with minimal disruption of the services to the local communities and all location of services will be identified by contractor in collaboration with utility providers and adequate notice given to the local communities and alternatives provided in advance in cases where disruption is inevitable.

9.4.3 Squatters Squatters are entitled for compensation of structures and other assets lost other than land. They are also entitled to livelihood restoration measures and disturbance allowance as well as right to salvage. There are 169 squatters along this road section.

9.4.4 Relocation of Graves/Shrines There are no graves affected by this project.

9.4.5 Vulnerable groups The RAP recognizes that there are vulnerable groups among the PAPs. These are social and distinct groups of people who might suffer disproportionately or face the risk of being marginalized as a result of resettlement compensation and specifically include: (i) female- and child-headed households, (ii) disabled household heads, (iii) households where the head is unemployed and (iv) households headed by elderly persons with no means of support. These have been identified and presented in Appendix 2 but will not be publicly disclosed due to sensitivity of this category of PAP.

The RAP also recognizes that vulnerability is a socio-economic dynamic situation and people can stream into a situation of vulnerability as well as stream out. The RAP implementation team will, therefore, need to screen, review and update the vulnerable PAP households; identify and update special assistance packages for such vulnerable PAPs; and develop strategies to deliver such assistance. This responsibility has been re-emphasized in the role of the RAP implementation team. The RAP implementation team will ensure that vulnerable PAP households understand the RAP implementation process and that their specific needs and concerns at that time are taken into consideration, through targeted consultations with them. The following intervention areas have been considered as possible areas of in-kind resettlement assistance to vulnerable PAP households during the RAP implementation:

(i) Targeted and localized house-to-house or group sensitization for the vulnerable PAP households during pre-payment consultations.

(ii) Priority consideration in processing resettlement compensation payments and specialized assistance in explaining and filling out compensation payment forms.

(iii) Livelihoods capacity development for selected members of vulnerable PAP households, in line with local livelihood opportunities and economy.

(iv) Counseling and guidance for members of vulnerable PAP households.

103 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

(v) Consideration for employment in project activities for some of the members of the vulnerable PAP households.

Assistance will take the following forms, depending on vulnerable people’s requests and needs: 1. Assistance in the compensation payment procedure; 2. Assistance in the post payment period to secure the compensation money; 3. Assistance in moving: providing vehicle, driver and facilitation at the moving stage, providing ambulance services for disabled or inform persons during moving, and; 4. Health care if required at critical periods; 5. Priority in processing disbursement of compensation packages 6. Moving and transition support or allowance during the relocation period. 7. Assistance in locating residential and commercial housing 8. Priority in allocation market stalls preferably ground levels for the disabled

In the context of the Project, vulnerable people identified included: • Widows • Orphans • Physically challenged • Elderly PAPs living alone • Single parent • Chronically sick PAPs

9.5 Strategy for Property and Livelihoods Income Restoration The resettlement measures or strategies have been developed in close consultation with community members, the PAPs, institutional stakeholders and in reference to the national legal regimes, the World Bank involuntary resettlement policy. Two main strategies have been identified and are discussed below. All PAPs are aware of these options, including those who requested further consultations with other household and family members.

(a) Strategic option one: Cash compensation Cash compensation is the preferred strategy for compensation in this RAP. Even though OP. 4.12 para 11, and 12 recommend land for land compensation, cash for land is considered justifiable for the following reasons namely: Most of the PAPs based on the census survey and socio-economic analysis showed a huge preference to cash based form of compensation. In this regard, the project will make adequate and prompt cash payments to all the PAPs including disturbance allowance and additional assistance to vulnerable groups. A 15% disturbance allowance has been included on top of replacement cost for PAP loss of assets. The livelihood of the PAPs is mainly subsistence trade and not land based in nature. This means that the PAPs do not primarily depend on land as the primary production source and this is mainly because the proposed site(s) is urban in nature with limited farming and dependence on land. Furthermore, the project is going to acquire way leave for the pipeline. Way leave acquisition requires a small fraction of the entire parcel of land owned by the PAPs and has left most of the remaining land economically viable. This RAP has proposed that for those PAPs who will lose over 20% of their land, be considered for full compensation of the land affected. With respect to structures, the project area being urban has an active housing and land market which ensures that there will be sufficient options for those interested in acquiring new housing (rental or purchase) or new land from the cash compensation.

104 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

(b) Strategic option two: In-kind compensation and resettlement measures This is a secondary option and has been considered to apply to community and public resources that will be affected owing to project implementation. Other resettlement measures that apply to the PAPs are described below:

(c) Disturbance allowance Property and livelihood income restoration will also include a livelihood/disturbance allowance that will be paid to the PAPs at the rate of 15 per cent of the value of compensation and a six months’ notice. This has been fully incorporated in the RAP and complies with both the national legislation for resettlement compensation and the World Bank requirements for PAP assistance for income and livelihoods restoration. After compensation, it is anticipated that communities will re-establish themselves in the economic activities they were performing before the project. Accordingly, compensation must be paid upfront before project activities begin at the respective project-affected sites/areas, as provided for in the Land Act (2012), to allow PAPs to plan for the restoration of their livelihood enterprises and other necessary adjustments. Affected households are entitled to participate in and to benefit from the targeted set of livelihood restoration programs, which were developed for this RAP: ▪ Financial training for the sustainable use of cash compensation (including training on the maintenance of a bank account, on small household investments, saving strategy and financial planning on the household level); ▪ Business skills training: facilitation of access to alternative income generating activities.

(d) Vulnerable groups assistance The RAP recognizes that there are vulnerable groups among the PAPs. These have been identified and presented in Appendix 2 of the valuation roll and will need to be screened and updated during the RAP implementation. The appendix with list of PAPs will not be disclosed publicly to retain confidentiality. The RAP implementation team will, therefore, update, design and cost special assistance packages to vulnerable PAPs; and also cost strategies to deliver such assistance.

1. Squatters OP 4.12 requires those without legal title to affected land may be compensated at replacement cost for their structures, land improvements, and may qualify for other resettlement and rehabilitation assistance including livelihood restoration, disturbance allowance. 2. Unlicensed street vendors Unlicensed street vendors (such as mobile enterprises lacking structures or other fixed improvement to land) lose not land or assets through displacement are categorized as non-titled PAPs and covered under OP 4.12, hence eligible for compensation in the form of a transition allowance. 9.6 Cut-off Date The determination of eligibility for various types of compensation is framed both in terms of the PAP categories, as well as whether individual PAP and affected property were present in the project affected area before the resettlement cut-off date. In functional terms, a cut-off date establishes a calendar limit on the project’s responsibility to compensate for impacts, specifically by defining a date after which the public ‘should know’ not to make improvements or settle on project land by virtue of public consultation and other communication efforts. The cut-off date concept protects project owners from this opportunistic and potentially costly phenomenon, which can result in a project not going ahead or to significantly delay compensation of the legitimately entitled PAP.

The cut-off date has therefore been determined by the timing by which several key activities were

105 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

completed, including the census, household socio-economic survey, heritage resources survey, farm surveys, non-farm business survey in the project-affected area were done. The effective cut-off date for this project was set at 25th May 2017. This means that persons occupying the Project area or any new farm, assets, or trading activity established after the Cut-off Date will not be considered as PAP. Such persons will not be eligible for compensation. A summary of the entitlements is presented in the entitlement matrix, in Table 9-0.

Box 10-1 Applicability of Entitlements According to the results of the field surveys in May 2017, project affected people predominantly prefer cash compensation over the land for land or the house for house approach.

1. In spite of the fact that there is an overwhelmingly preference for cash compensation, for those losing more than 20% of land (project induced), cash compensation will only be preferred upon confirmation of an alternate land or proof of purchase or identification of new site for relocation. 2. Prior to the start of the compensation payment process, compensation agreements with affected people will be set up and signed in accordance with NLC Act. 3. Entitlements are presented separately for each category of affected household/entity; some households may qualify for entitlements in more than one category (for example, a household that is physically and economically displaced may qualify for the entitlements for both these categories. E.g. Households losing their residential structure and losing agricultural land). 4. Actual land market assessments will be done prior to determination of final replacement rates for residential land, commercial land and agricultural land. 5. Vulnerable people, in addition to entitlements as listed above, are entitled to special assistance as needed to participate effectively in the resettlement process

106 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 9-0: Entitlement Matrix Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) A. PRE-CONSTRUCTION STAGE LAND ACQUISITION Agricultural, commercial, Land owner Owner PAP Land for land, if available.54OR In case of provision of alternative land, cost of Technical support for judicious Residential Private registration/ transaction costs will be added; utilisation of compensation (freehold/ leasehold) and money received e.g. Customary b) Financial compensation for land at replacement cost (according to the prevailing market prices of the land in the Support will be provided by the community 1.Financial/cash management affected areas). Compensation for total loss of land if leaders/district councils in identification of training. greater than 20% or remaining land/asset is not viable. alternate land cost of labor for preparing agricultural land 2.Sensitization on investment c) Disturbance allowance of 15% of the value of land lost options. will be provided to those who do not get land for land, In case of payment of replacement costs the irrespective of the size of land. payment of replacement costs shall consider: 3.Trainings on Agriculture improvement programs. d) In case of severance of cultivable land by access To arrive at a full replacement cost of land the roads an additional grant of 10% of the land value to cover value of labour invested in preparing the costs of clearing and preparing replacement agricultural land will be compensated for agricultural land. using wage for the same period of time.

e) Compensation for the standing crops/ damaged The labour 10% will be calculated based on during the construction period shall be paid at market the compensation sum for the lost land. This value. is intended to help a farmer to create replacement land i.e. clearing, ploughing, f) Transaction costs, including transfer or registration of sowing, weeding etc. titles and taxes to be borne by the project within one year from the time compensation is paid. Tenant farmers Tenants/ Renter Compensation for standing crops shall be paid at market Compensation for standing crops damaged 1.Financial/cash management value. during the construction period shall be paid at training. market value. 2.Sensitisation on investment Cost of clearing and preparing replacement options. agricultural land. 3.Trainings on agriculture improvement programs. LOSS OF STRUCTURE Residential Dwelling owner PAP / Household a) Replacement cost of structure without depreciation. Cash compensation would be payable for Financial / cash management b) Lump-sum shifting allowance up to 10% of the those losing main dwelling houses or parts of training. compensation sum. residential structure such as Toilet, kitchen, shed Monitoring mechanism at main stages of construction of

107 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) dwelling unit. Renter/Tenant PAP / Household a) In urban areas, reimbursement for unexpired tenancy / 1.Proof of a formal tenancy agreement has to lease period or the amount of deposit or advance paid by be provided. In the absence of a formal the tenant to the landlord or the remaining amount at the agreement, a month rent will be provided. time of expropriation. Note: Amount will be deducted from the b) Lump-sum transport allowance up to 10% of the compensation payable to structure owners compensation sum. Any other structure on Structure PAP/Affected a) Replacement cost of structure without depreciation. Compensation for the permanent crops / affected plot (including Owner Entity damaged during the construction period shall home garden) /Unauthorized b) Right to salvage materials from the existing structure, be paid at market value. Occupant even if compensated. (Encroacher or c) Replacement for permanent crops in home gardens. Squatter) Toilets, bathrooms, Structure PAP/Affected a) Replacement cost of structure without depreciation. Owner Entity /Unauthorized b) Right to salvage materials from the existing structure, Occupant even if compensated. (Encroacher or Squatter) Loss of permanent Business PAP / Business a) Compensation at full replacement value for immovable a) Cash compensation would be payable for Owner Entity assets including commercial plots associated with the those losing structures and lost business. Business Structure /Structure structure. Movable Business Owner b) Cash management training. Structure b) Compensation for loss of income for the period of the time required to re-establish the business – 3 months c) Other Business options. income within a maximum of one year.

c) Shifting allowance (cost for shifting and reestablishment of the business plus all other related costs).

d) Compensation for loss of income for the period of time required to re-establish the business – 3 months income within a maximum of one year.

e) Replacement cost of structure without depreciation.

f) Lump-sum shifting allowance of 10% of the compensation sum.

g) Allowance for loss of profit per month (between 1-3 months by type of structure and nature of business)

h) Right to salvage materials from the existing structure. Tenant/Renter/ Tenant / Renter Reimbursement for unexpired tenancy/ lease period or the Proof of a formal rental agreement has to be

108 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) business with proof of amount of deposit or advance paid by the tenant to the provided. owner tenancy / landlord or the remaining amount at the time of Leasing or in expropriation. Note: Amount will be deducted from the absence Allowance: three months’ profit for the transition compensation payable to land owners. of formal period. agreement, identification Lump-sum shifting allowance of: 10% of the compensation through sum. premises owner. CROPS AND TREES Trees and perennial Crop / trees Owner PAP, a) The valuation of perennial crops will be based on the The highest market price/kg and expected life 1. Crop / tree owner crop Owner Affected Village product of their average yield (kg/tree/year). span plus establishment cost will be may, if possible, dig (in case of considered. up tree and move natural growing b) The valuation of fruit trees will consider the time elsewhere/sell trees). between planting and bearing of fruits. (where possible given type of tree). c) Valuation will be based on the product of yield, period between planting and bearing of fruits and market price. 2. Advance notice to be given for farmers to harvest or d) Input costs remove standing crops / trees.

3. Technical support for Squatter PAP judicious utilisation of compensation money received, e.g. financial / cash management training sensitisation on investment options. Annual crops Compensation will be based on the average market unit The yield shall be the highest yield of that price of the crop over a period of the past three years particular crop as determined by the Ministry multiplied by the yield /kg and multiplied again by the land of Agriculture. size. OR

b) Three months’ notice to harvest standing crops shall be given. However, if notice cannot be given then compensation for these crops shall be paid at market value. Loss of Livelihoods Loss of Livelihood (losing Wage earners Worker PAP Assistance Minimum wages for: Technical support for judicious commercial unit, working (workers utilisation of compensation on agricultural land) employees Preference in provision of Work opportunities in the Unskilled labor money received, e.g. within project during the construction stage and later if any financial/cash. shop/business/ available commensurate to his/her existing skill/education industries) levels. Management training, Livelihood sensitisation on investment

109 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Type of loss Category of Eligibility Entitlement Entitlement details Development Assistance PAP (additional) loser. b) Transition Allowance: options.

c) Vocational / skill improvement as per choice (to cover all Development assistance e.g. related costs such as, transportation, per diem for number training if no longer able to of days). farm, to facilitate livelihood restoration up to pre-Project conditions and related monitoring. Additional support to Owner PAP or Head of Financial compensation of loss of income incurred as a Cash compensation on temporary basis Technical support for judicious vulnerable groups the Household result of the Project (note that this is temporary utilisation of compensation assistance). money received e.g. Financial / cash management training, Compensation for assets that can no longer be used at sensitisation on investment fair market value. options, facilitate livelihood restoration up to pre- Project conditions and related monitoring.

Note: The compensation / assistance would be normally paid / provided to the Owner or Affected person or else to the member within the Household who owns / has valid papers or is recognized to own the affected structure / land or based on verification (to non-titleholder will receive the applicable compensation and / or assistance.

110 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

9.7 PROPERTY VALUATION PRINCIPLES AND DETERMINATION OF COMPENSATION RATES Property valuation in Kenya is carried out by valuation professionals registered under the Valuers Act Cap. 532 of the laws of Kenya. A registered Valuer (with Valuers Registration Board) is a trained professional who has a thorough knowledge and understanding of the factors that create, maintain, or diminish values of real estate or assets. Valuation of assets is done in accordance with the Practice Statements and Guidance Notes published by the International Valuation Standards Committee (IVSC), adopted and recognized by international accounting standards and risk management professionals.

9.8 FIVE METHODS OF VALUATION Generally, there are five methods of valuation of fixed assets that are relevant to the Kenyan market; (1) Cost Approach or Contractor’s Method (2) Sales or Direct Comparison Method (3) Investment Method (4) Residual Method (5) Profits Method. Below is the brief description of the five methods of valuation used in Kenya.55

9.8.1 Cost Approach or Contractor’s Method This approach is based on answering the question, “How much does it cost to build the same structure today?” It includes the cost of design plus other professional fees. This cost of replacement approach is sometimes referred to as the contractor’s approach or contractor’s test and is used mainly to value individual structures and machinery. All components of the impacted structure must be compensated for on a material by material basis. The data to come up with unit costs is normally obtained from hardware shops, quantity surveyors, contractors, government departments, and other sources as necessary. As this method requires descriptive data on the improvements being valued, the first step in the contractor’s method is data collection.

The second step is to determine an accurate cost estimate. Costs consist of all expenditures necessary to complete construction of a house or other building. They are either direct or indirect costs. Direct costs include materials and unskilled labor, while indirect costs include skilled labor and the monetary cost of obtaining a building permit, registering the house with relevant government agency, and designing fees if hiring an architect to design the house.

The usual practice is that of the use of the unit-in-place cost segregated method adopted when estimating replacement cost for a property or section of a property. This method expresses all direct costs of the structural component as units. The costs for building components, such as floors, roofing, and walling are expressed as cost per square meter. Different materials used in building one component have their own material unit cost. Percentage or lump-sum adjustments for features not included in comparative unit cost may be made with the unit-in-place method.

This method is used to value properties where there is no general demand and thus for which comparable evidence is absent. If such properties are sold, the price required by the vendor would normally be the cost of construction plus the value of land for an alternative property. Therefore, this Method requires estimates of the value of the land in its existing use and of the gross replacement cost of buildings and other site works from which appropriate deductions may then be made to allow for age, condition, economic or functional obsolescence and

55 Adapted from William, et.al:1980:11.

111 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

environmental and other factors which might result in the existing property being worth less than a new replacement.

9.8.2 Direct Comparison Method The direct comparison method of valuation is the most commonly used method when valuing residential properties in Kenya. This method involves the use of more than two comparable property transactions recently conducted within the same or similar geographical location to the subject property being valued. The direct comparison approach requires the following steps: data collection; analysis of market data to develop a group of properties for comparison; selection of attributes for adjustment; application of the approach to adjust the sales prices of comparable properties to the subject property; and analysis of the adjusted sales prices to estimate the value of the subject property. The direct comparison method assumes that the value of a property is arrived at by direct comparisons made with other similar available property transactions in the area or vicinity. Considerations are made with reference to location, accessibility, demand and supply positions, quality and standard of the built up structures, age and condition, and the prevailing economic and property market trends.

Sale values are then analyzed and processed to form units of value per square meter of the total external floor area of the buildings. These are then compared with the subject property on the same basis to arrive at an adjusted unit of value and apply the same to the subject property while allowing for similarities and dissimilarities accordingly. Comparable sales of properties can be extracted from the Ministry of Lands or obtained from the Kenya Revenue Authority’s Stamp duty which is charged at 4% of any property transfer or from established property consultants/estate agents. Therefore, the availability of adequate comparable property transactions within a given location is key to adopting the comparative approach.

9.8.3 Investment Method — Income Approach This method relies on capitalizing the annual income flow from a property to come up with the market value after outlays are deducted. It assumes that a secure income such as rent or other cash inflows are obtained either monthly, quarterly, or annually from the tenant who has the right to occupy the premises for an agreed period of time as enshrined in the lease agreement signed between the landlord and the tenant. The process of converting future income flows to present value capital sum is known as capitalization, which in essence is the summation of the future benefits each discounted to the present at an appropriate market-derived discount rate of interest. The success of this method requires appropriate and adequate data on rentals, yields, and outlays. This method of valuation is better for the valuation of commercial and industrial properties than for residential properties.

9.8.4 Residual Method/Development Method This method is commonly used for properties that have development or redevelopment potential. Properties in question would be valued based on their worth after renovation or redevelopment, less the cost of the improvements. Since the values used would be based on estimates, the figure used would be more speculative than other methods as the supposed “development” or “redevelopment” would be a projection. The method makes a number of assumptions and concerning costs of construction, design and monitoring, costs of securing and financing, and the anticipated developer’s profit. The residual method is used for valuation of properties with latent value, which could be released by further development. It calculates the residual value, which essentially is the value that a prospective developer would be prepared to

112 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

pay for the site aiding property development decisions by indicating the possible values of the development once completed and by providing a guide as to the likely profits. If the developer’s profit is negative, then the proposed development is considered not viable.

9.8.5 Profits Method This is used to value properties that derive their value on various factors, which combine to produce a potential level of business. In some instances, the factors are so unique that comparison with other similar properties is impractical. A filling station is an example of a property that is commonly valued using this method.

9.8.6 Choice of Valuation Methodology The type and extent of the assets impacted, along with the principle that no PAP should be left worse off than they were prior to project implementation, determined the method of valuation for assets.

9.9 LAND VALUATION This project will provide compensation for land for PAPs with recognized formal land rights based on replacement costs. However, encroachers on the ROW and hence categorized as illegal will not be entitled to land compensation and instead will be entitled to compensation for loss of structures, crops, trees and livelihoods as described below.

9.10 VALUATION OF PERMANENT STRUCTURES AND OTHER IMPROVEMENTS ASSETS The values of improvements of a permanent nature, such as buildings and structural works, fences including chain link fences, block walls, gates etc. are assessed on the basis of current ‘replacement costs’ of similar or comparable structures.

9.11 VALUATION OF CROPS AND TREES In the construction of rates for fruit trees, it was recognized that most of these fruits are for both Consumption and commercial purposes. In practice to find the rates for fruit trees, consideration is given to the average market price per kilogram of the fruit, the average yield per tree per year, expected productive lifespan and the number of fruit trees being considered. All these variables are multiplied and to that product is added the average establishment (planting and caring) costs to arrive at a final commercial value of the fruit. This approach is used by almost all institutions in Kenya for fruit tree compensation purposes. The schedule of such rates was first constructed by the Directorate of Agricultural Research Services of the Ministry of Agriculture. Prices adopted are the highest that could be obtained in the market at the time of the research. 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. The calculation of the full replacement value requires consideration not only of the product of the crop, 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 up to the degree of maturity of the lost crop.

Compensation rates were calculated in compliance with the full replacement value principle, based on the following:

▪ V: Average market value of the produce;

113 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

▪ D: Average period of time required to re-establish the tree to a mature 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.

The compensation amount C is determined by application of the following formula: The formula for the loss of seasonal crops is C = V x A

To calculate the compensation for losses of production from annual crops, the market value (V) is multiplied with the area of the affected plot or the affected part of the plot (A). For affected plots with mixed crops, the most important crop is considered. For affected plots, the most important crop for the last three years prior to the cut-off date is considered.

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. 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. Compensation of annual crops is according to the market value of the crop.

9.12 VALUATION OF BUILDINGS AND OTHER IMPROVEMENTS Buildings and other improvements (of a non-permanent nature) have been assessed using the replacement cost approach of similar or comparable structures.

9.13 PUBLIC DISCLOSURE National Land Commission is required by NLC Act to disclose the names of all the PAPs in the daily newspaper as part of land acquisition process. Prior to disclosure the RAP will be approved and cleared by the Government of Kenya and the World Bank. This RAP report will then be disclosed by the KWSCRP in the websites for the following institutions namely: • MOWASSCO • MOWI • County Government of Mombasa

Hard copies will also be made available in the above offices as well as the Sub County Headquarters and each GRM Committee will also have a copy of the RAP report.

The World Bank will disclose a copy of the RAP report in its public portal. Translation of the executive summary of RAP report into Swahili (the most spoken language) will be undertaken and disclosed alongside the full report.

114 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

10 GRIEVANCES MANAGEMENT SYSTEM AND PROCEDURE 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.

10.1 GRIEVANCE PROCEDURE AND RATIONALE Types of grievances that could occur/have already occurred during the preconstruction i.e. survey stage and those likely to occur during the RAP/LRP implementation followed by construction stage.

Table 10-0: Typical grievances Stage Types of grievances (indicative) Planning and Pre-construction • Lack of awareness of the project area demarcations; • Missing of parcel, error in identification and/or incorrect measurement (or perceptions over incorrect measurement) of affected assets; • Disagreement regarding inheritance or ownership of assets and fearing loss of compensation; • Lack of adequate communication on the project developments, not enough consultation/sensitization; • Disagreement over the rates utilized valuation of affected assets; and • Mistakes in the formulation of compensation agreement documents; RAP/LRP Implementation • Non-payment for improvements carried out to structures followed by Construction post survey and valuation but prior to compensation payments; • Mode of payment of compensation and time delays; • Not enough work during construction stage / dissatisfaction over wages given; • Wrong identification of livelihood restoration schemes, their inadequacy, training support and lack of necessary assistances; • Damage to crops and other assets outside the way-leave caused due by ongoing construction work e.g. excavation of the pipeline trench.

115 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Post Construction Phase • Loss of property due to theft allegedly by construction personnel; • It is anticipated that people no compensation will be made to the people that may encroach the way-leave after the construction. The damage to crops and other assets and within the way-leave due to the maintenance work e.g. Replacement of the pipeline, and routine control of the vegetation and other development will not be paid. • Damages on structure foundations due to underground leakages of the pipelines.

10.2 ALTERNATIVE GRIEVANCE REDRESS AND RESETTLEMENT COMMITTEES As indicated in the contextual section RAP/LRP combines the existing formal and informal structures of the grievance handling mechanism. The capacity building for the grievance handling structures is discussed in section below of this chapter.

At the community level, the Resettlement and Grievances Management Committee will be at every ward depending on numbers of PAP in a particular area. The committee may at any time co-opt any member to help in resolving grievances if it deems necessary.

Modus operandi for the WGRC: Details on system of operation will be determined by the committee members and this can be case by case. However, the following key issues should be considered by each committee. The summary presented in Table 10-1.

Table 10-1: WGRC operation Systems TIPS OF WGRC OPERATION SYSTEMS Meeting schedule: Determine frequency and period of meetings Committee Meeting Procedures To elect Chair and Secretary Training Once formed, Training would be imparted to the members of the Committees Dissemination of Committee’ Resolution The Committee’s should decide the time frame for communicating with the PAP on resolution status. It is proposed in this RAP/LRP report that for any claimant within 5 working days of the Committee’s decision. However, committee have a mandate to change for lesser number of days. Program Reporting Requirement: The WGRCs will report to the Sub County Resettlement and Grievance Management Committee and water Board on all matters arising and progress. Location and Period of Execution: The WGRCs will be meeting at Teacher Development Centres or nearest Primary Schools that exist within their existing communities and travel to project sites as necessary Operational duration: The committees would need to operate till the project continues to have an interface with affected communities. It should remain operational even after end of the construction period as it is likely that there could be issues relating to the operational phase. In terms of duration, the following shall be the key considerations: The duration till when such a grievance redressal system needs to be maintained post construction can be determined and can be mutually agreed upon by MOWASSCO and County Government by review of suitable indicators such as : ▪ nature and type of grievances received, addressed; ▪ Pending resolution; and referred for arbitration/ court.

116 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

10.2.1 First Level: Ward Level Grievance and Resettlement Committees This RAP prefers the first level of grievance or conflict redress on RAP related issues as a result of this project to be handled by the already existing or established GRMC in the project site and handle all forms of grievances in an amicable manner and as an alternative dispute resolution to formal process, which is normally lengthy and costly. Grievances not resolved by the site level committees will be taken to the second level. The site level refers to the project areas including;

In the affected sites as described above there will be a Ward Resettlement and Compensation Committees and the membership will include:

Table 10-2: WGRC Composition Composition Of Ward Grievance Redress Committees

Representative Position The sub locational chief, Chair Assistant chiefs, Secretary Business representative Member MOWASSCO representative Convenor Contractor representative (Works and Supervising Engineer) Member A representative of vulnerable PAPs, Member Youth representative Member Women representative Member

Functioning: The GRCs shall decide once formed on the number of meetings and schedules as will be appropriately aligned with their other routine works as well as the magnitude of the problems.

Role of Ward Grievance Resettlement and Compensation Committees

The committee will: • Represent the interests of PAP and communities in the ward. • Support the project in identification of PAP and envisaged land, enterprise or livelihood losses. • Act as an appeal and exit point for all grievances lodged by Complainants arising from resettlement activities • Ensure transparency and accountability during property valuation and loss of livelihood claims through public participation. • Monitor safety standards, labor requirements and community health issues during construction works and report to KWSCRP/PMU.

10.2.2 Second Level: Sub County Resettlement Committee There will be a mediation committee at each Sub County level to handle grievances that cannot be resolved by the site level committees and membership will include:

(a) One representative of the Administration; - National Government (b) One representative of County Administration; - County Government (c) One representative of the MOWASSCO acting as an observer;

117 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

(d) One representative of the construction contractor, acting as an observer (e) Three representatives of the affected people, amongst them at least one woman, chosen i.e. from community based organizations, elders, traders.

10.2.3 Third Level: County Resettlement Committee There will be a mediation committee at County level to handle grievances that cannot be resolved by the SCRCC c and membership will include:

(f) One representative of the Administration; - National Government (g) One representative of County Administration; - County Government (h) One representative of the MOWASSCO acting as an observer; (i) One representative of the construction contractor, acting as an observer (j) Three representatives of the affected people, amongst them at least one woman, chosen i.e. from community based organizations, elders, traders.

10.2.4 Fourth Level: Court System If all avenues have been exhausted without success, i.e. the complainant’s claim is rejected/not resolved by the Grievance Redress Committees (GRCs), and then the matter will be brought before the existing local court system for the administration of justice.

10.3 REDRESS PROCEDURE Every attempt will be made to settle all grievances concerning resettlement. The grievance procedures will be simple and administered as far as possible at the local level to facilitate access, flexibility and the open participation of witnesses. The grievance redress procedure includes consultations with Resettlement Implementation and Compensation Unit (RICU), and the use of records to determine the validity of claims.

The process is transparent and generates no major costs for the aggrieved person. By the time the resettlement and compensation plans are approved and individual compensation contracts are signed, PAP will have been informed of the process for expressing dissatisfaction and how to seek redress. Considering the complexity of resolving disputes and grievances, all grievances will be addressed through mediations at the lower level of Government and through existing committees. This will ensure that the PAP does not travel long distances or incur advocacy costs. RICU can be involved in assisting mediation of disputes, where appropriate.

If a complaint pattern emerges involving several PAP or whole communities, the Grievance Redress Committee and KWSCRP will discuss possible remediation. The County Government and community leaders (Chairpersons) will be required to give advice concerning the need for revisions.

10.3.1 Communication of Grievance Procedures to PAP PAP will be told about the grievance procedures when consulted about compensation procedures. The procedure will be translated into Swahili and written copies will be distributed to local leaders and PAP. RICU will assist them to prepare and present grievances through agreed upon channels.

118 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 10-3. Grievance Procedure Step Reporting Committee Timeframe to redress Grievance redress Grievance not redress 1 PAP shall submit grievance in writing to the Upon receipt of grievance, the WGRC, If the grievance is resolved and the If the grievance is not WGRC and receive an acknowledgement shall try to resolve the grievance PAP is satisfied with the WGRC resolved, go to Step 2 from the WGRC as proof. amicably with the active participation of decision, a report of the same shall the aggrieved party within 5 working be prepared by WGRC. A copy of If the PAP is unable to write, WGRC days from the date of the filing of the the report shall be handed over to /KWSCRP/PIU shall record the same on grievance. the PAP for the record and a copy behalf of PAP. submitted to KWSCRP/PIU for the record. Case closed. 2 If PAP is not satisfied with the Step 1 Upon receipt of grievance, the If the grievance is resolved and the If the grievance is not decision, the case shall be forwarded to the SCGRC, if desired, may direct WGRC PAP is satisfied with the SCGRC resolved, go to Step 3. SCGRC (Sub County Grievance Redress to collect further information related to decision, a report of the same shall Committees) with a preliminary report the grievance and submit the same to be prepared by SCGRC. A copy of prepared by WGRC. The report should have the committee for its use while hearing the report shall be handed over to the details of the grievance, a preliminary the grievance. The hearing shall be the PAP for the record and a copy assessment by and SCGRC, a hearing date completed within 10 working days of submitted to KWSCRP/PIU for the and the decision of local government. the date of case referral. The date, record, Case closed. time and venue of the hearing shall be communicated to the PAP at least 5 days in advance by SCGRC. 3 If PAP is not satisfied with the Step 1 Upon receipt of grievance, the CGRC, If the grievance is resolved and the If the grievance is not decision, the case shall be forwarded to the if desired, may direct SCGRC to collect PAP is satisfied with the CGRC resolved, go to Step 4. SCGRC (Sub County Grievance Redress further information related to the decision, a report of the same shall Committees) with a preliminary report grievance and submit the same to the be prepared by CGRC. A copy of prepared by WGRC. The report should have committee for its use while hearing the the report shall be handed over to the details of the grievance, a preliminary grievance. The hearing shall be the PAP for the record and a copy assessment by and SCGRC, a hearing date completed within 10 working days of submitted to KWSCRP/PIU for the and the decision of local government. the date of case referral. The date, record, Case closed. time and venue of the hearing shall be communicated to the PAP at least 5 days in advance by CGRC. 4 It is assumed that all the cases shall be A decision of any complaint from The court of the law is final solved at GRC level. If not, the PAP shall step1- 4 must be reached within three have the option to refer his/her case to months, from the day the complaint is appropriate court. lodged by PAP to a grievance redress system.

119 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

10.4 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, project level grievance redress mechanisms (alternative dispute) resolution is preferred for this project.

10.4.1 National Land Commission (NLC) 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 MOWASSCO 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 MOWASSCO 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. It is important to note that the NLC also has statutory powers to prescribe criteria and guidelines for land acquisition.

10.4.2 NLC Grievance and Appeals Process The NLC has a grievance redress process mainly triggered at the time of award of compensation following public hearings. If a PAP is dissatisfied with the awards given by NLC, they have a right to appeal and NLC would look into the matter and determine justification. In the event that a PAP is not satisfied with the appeal made to NLC and the resolution thereof, then dispute is resolved by resorting to the legal justice system where PAP could go to the environment and land court. Finally, there will be the option for each complainant to resort to court (third level), in case there is no solution within the Project’s grievance mechanism.

120 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

11 LIVELIHOOD RESTORATION PLAN The purpose of developing a Livelihood and Income Restoration Plan (LRP) at this stage of RAP development is to outline the framework for mitigating and restoring livelihoods of project- affected communities as early as possible. This will allow for effective disclosure to key stakeholders, and subsequent feedback prior to project approval and commencement. The LRP includes livelihood enhancement initiatives, which will assist Project affected persons / households to re-establish their livelihoods or create new ones.

11.1 LRP Aims and Program Identification The LRP aims to enable PAP to fully restore their livelihoods and improve living standards through: • Capacity building for more profitable and sustainable use of livelihood assets; and • Development of alternative livelihood resources and initiatives.

Based on a needs assessment the LRP targets the following: • Financial Literacy Training; • Skills Training and Employment Program; • Entrepreneurship Development Program: o Micro, small and medium enterprises development; o Micro business (art and craft, agro food processing skills, beekeeping); and o Tourism.

11.1.1 Baseline Influencing Factors Livelihood restoration programs are tailored to existing baseline conditions and consider project impacts on PAP livelihoods. Livelihood restoration programs will focus on capacity building for: Small business development, including strengthening skill sets for the restoration of affected businesses, as well as skills diversification for developing alternative and supplementary livelihood opportunities. Determining factors for developing suitable livelihood restoration programs are:

Eligibility: Entitlements to livelihood restoration are presented in the Entitlement Matrix. Eligibility criteria include: ▪ Loss of total arable land; ▪ Loss of business that cannot be re-established; ▪ Loss of agricultural land or access to agricultural land; ▪ Loss of employment that cannot be re-established; and ▪ Vulnerable people due to physical, mental, health, economic and social challenges.

11.2 DESCRIPTIONS OF THE LIVELIHOOD RESTORATION PROGRAMS 11.2.1 Provision of Financial Literacy Program (FLP) A series of money management training sessions provided to all PAP especially squatters who are trading along the ROW. The course will be designed to help PAP in judicious use of compensation payments and in support of restoring affected livelihoods.

• Strategic cash management training and advisory support services provided to all PAP. • As part of the training program, people who have received and properly invested cash 121 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

compensations from other project/companies will be invited to share both positive and negative experiences and to advise PAP on prudent cash management. • Providing assistance with the post-payment period in order to secure the compensation money and reduce risks of misuse/robbery. • Providing Financial Literacy training for guiding and encouraging use of banking services. The Payment Agent will provide follow-up training on financial products and handling of compensation payments. Relevant courses include: Identifying Values and Creating Financial • Goals; Tracking and Managing Income vs. Expenses; Managing Your Debt; Understanding Credit; Using Financial Institutions and Building Consumer Skills.

The Financial Literacy training will be offered to all PAP affected by the Project. Given the large number of people involved the training will be clustered. The program planners will work out and establish a unit of focus. However, it is recommended that the trainings be done at ward levels.

11.3 ENTREPRENEURSHIP DEVELOPMENT PROGRAM (EDP) The RICU will advise / guide PAP specifically squatters undertaking business on the ROW to invest in time deposit schemes offered by formal financial institutions as these are secure instruments for investment with guaranteed returns. KWSCRP/PMU may also facilitate the provision of business development support services to local MSMEs and associations. The goal is to strategically provide time-bound business support to self-employment undertakings, aiming to grow them into viable and sustainable business / enterprise. The various components under this strand are explained below:

11.4 LOCAL PROCUREMENT STRATEGY KWSCRP/PMU will pursue a targeted approach to identifying and awarding contracts to local MSMEs to provide goods and services to the company and its contractors. By building the capacity of local MSMEs, they are better positioned to win contracts on a competitive basis with KWSCRP/PMU and the project contractors in the Project area.

Institutional capacity building: Strengthening a local business association and service provider to address the lack or very low availability of business support services to the business community in the Project area. KWSCRP/PMU can support in encouraging the project implementers to procure goods from MSMEs e.g. construction materials.

MSME sensitization: Local MSMEs and potential suppliers will be educated on the client’s standards of doing business. Through an independent agency, RICU will actively promote the business opportunities the company can offer local MSMEs by assisting them to become legally compliant suppliers, guiding them in making bids and providing feedback to those that fail to get a contract with the company. Training, technical assistance and one-on-one mentoring will be provided for selected MSMEs to build their capacity.

11.4.1 Vulnerability Assessments and Assistance A Vulnerable Assistance Program will be developed to provide a safety net for vulnerable households. The objective is to identify, assess, support, remediate, and monitor project- affected households experiencing severe hardship, as part of the overall Livelihood Assistance Package for each household.

122 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Vulnerable persons will be specifically identified, registered, and tracked through the following means: • Analysis of socio-economic survey data and case work on household composition, assets, source of income, and food security • Community identified households receiving charity • Analysis of records or case work on each household being compensated • Department of Social Welfare at the County

Eligibility for Vulnerability Assistance The identification of vulnerable households will be based on: • Predisposition to economic vulnerability: Ultra poor Households are those with expenditure/consumption less than one US dollar • The age (Household headed by a child with less than 18 and elderly above 65yrs) when they live alone. • Household headed by a person with physical, mental or health challenges. • Households headed by single mothers, particularly those with high dependence ratio, ie. More than four unable bodied persons (chronically sick, children or elderly). • The infirm. • Under the provisions of the RAP, vulnerable households will be provided with targeted assistance.

Proposed Form of Assistance 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. Additional measures such as to provide in kind compensation in case the vulnerable household is losing residential house or sole arable land. • Health care if required at critical periods: transition period; the following process will be implemented:

o In depth information of the resettlement committees about the Project policy with regard to vulnerable people; o Consultation of vulnerable people amongst the affected households through the resettlement committees; o Identification of assistance measures on a case-by-case basis, with the following process: o Review of each case by PIU community liaison officer, together with a resettlement committee member, including a visit at home and a detailed interview o Discussion of the assistance measures required between the NPMU officer, the resettlement committee member and the vulnerable person o Report to the resettlement committee on required measures o Review and decision by the committee o Implementation of assistance measures o Monitoring

123 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

12 RAP IMPLEMENTATION According to the World Bank OP4.12, resettlement and development planning require specialized expertise. It is essential that the project sponsor engages the services of qualified and experienced personnel to design and implement livelihood restoration/resettlement plans. However, it is equally important that sponsors engage themselves in the RAP design process. Sponsor participation in the process is instrumental to coordinating resettlement activities with the project implementation schedule. With this in mind, various institutions are being involved in the planning, implementation and monitoring of the RAP.

12.1 INSTITUTIONAL ROLES IN COMPENSATION 12.1.1 Ministry of Water and Irrigation The Ministry will be the main implementing agency and would be responsible for sourcing funds from the national treasury for compensation of the PAPs.

12.1.2 County Government of Mombasa The county Government of Mombasa will be responsible for supporting MOWASCO and KWSCRP in implementing the RAP in view of the fact that the project is implemented under its jurisdiction administratively and given the fact that provision of water is a key objective of the county.

12.1.3 MOWASSCO MOWASCO will be the main implementing agency and would be responsible for project. It shall be in charge of all activities relating to resettlement (compensation payment, implementation of livelihood programs, grievance redressal), procurement, construction works, etc.

12.1.4 KWSCRP/Coast Region Project Management Unit The role of the KWSCRP/PIU is the day-to-day facilitation of the project. The unit 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.

12.1.5 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 2012.

Key roles of NLC in the implementation of this RAP will include: ▪ Provide approval to request made by MOWI to acquire land for WMWSP; ▪ Notify landholders in writing of the intention to acquire land; ▪ Assist in resolving disputes related to compensation;

124 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

▪ Acquire land on behalf of MOWI; ▪ Undertake public consultation on intended acquisition; ▪ Undertake actual payment of entitlement awards to PAPs

12.2 WMWSP RAP IMPLEMENTATION AND COMPENSATION UNIT (RICU) All PAPs will be compensated before their land is acquired; structures, crops/trees and other assets are demolished, implying that compensation will be paid before project works start at a specific site/in a specific area as per the contractor’s work schedule.

12.3 RAP IMPLEMENTATION UNIT STRUCTURE The overall coordination of the implementation of the RAP will be provided by jointly by MOWASSCO jointly with County Government of Mombasa through the already established KWSCRP/PIU. The KWSCRP/PIU is the project-implementing agency for WMWSP and one of the key roles of the PIU will be to ensure completion and implementation of the RAP. The KWSCRP/PIU will be also responsible for implementation of the RAP. The KWSCRP/PIU for Mombasa comprise of the following entities:

• KWSCRP/PMU Coast region • County Government of Mombasa • MOWASSCO • Works Contractor (s) • Supervising Engineers of Works • National Land Commission

The KWSCRP/PIU will serve as the RAP implementation unit and comprise a core unit responsible for day-to-day operations and technical support staff. The composition of the core unit in terms of qualified staffing and personnel will be as follows: An implementation team that will have the following members of staff: • MOWASSCO’s) Social Specialist also the GO • MOWASSCO’s M&E Specialist • Valuer (1) County Government • Communications officer (MOWASSCO and County Government) • Independent civil society organization/ NGO representative (1); • National Government Representatives County Commissioner • County Government Representatives (CEC for Lands and Physical Planning). • Works Contractor representative (social development officer) • Supervising Contractor (social development officer) • National Land Commission • KWSCRP/PMU Coast Safeguards Officer

The day-to-day role of the RAP implementation team will be to: • Plan and coordinate prompt compensation payments; • Plan and coordinate non-cash compensation such as special assistance to vulnerable groups; • Ensure that the compensation process and entitlements adhere to legal provisions such as spousal and children’s consent where it applies, and following the 125 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

succession Act in case of the death of a PAP; • Report to the MOWASSCO’s senior management team and stakeholders; • Ensure that the information needs of the PAPs are disseminated promptly and effectively; • Establish, manage and update the RAP implementation database; • Contribute to the regular monitoring and evaluation of the RAP implementation; and • Consult and sensitise the community and PAPs with regard to the RAP implementation progress. • Delivery of the RAP compensation and rehabilitation measures; • appropriate coordination between the agencies and jurisdictions involved in the RAP implementation; and • the measures (including technical assistance) needed to strengthen the implementing agencies’ capacities for managing the facilities and services provided under the project.

12.4 ROLES RELATED TO IMPLEMENTATION ARRANGEMENTS The key activities in RAP implementation are categorized into activities that are to be completed at different stages. These are categorized by activities to be completed: a) prior to commencement of compensation and other payments; b) prior to commencement of civil works; and c) for all activities under RAP to be considered as complete.

These are presented below: There are a large number of players in this section. It would thus be useful to have an organogram showing the interrelationship between them along with reporting lines. Overlapping tasks can also be mentioned.

12.5 ACTIVITIES TO BE COMPLETED PRIOR TO COMMENCEMENT OF COMPENSATION PAYMENT Prior to the start of the compensation payment process, compensation agreements with affected people will be set up and signed. This will be done through the National Land Commission in accordance with the NLC Act and land acquisition process as described in chapter 5.

Operationalize Grievance Redressal Mechanisms: Proposed GRMs at Ward, Sub County and County levels would be operationalized following provision of: a) TORs for the committee at each level and b) commensurate training and resources to enable effective functioning.

Operationalize LRP implementation Mechanisms: Proposed GRCs at Ward, Sub County and County levels would be operationalized following provision of: a) TORs for the committee at each level and b) commensurate training and resources to enable effective functioning.

RAP approval and Public disclosure-cum-Launch Workshop: A Public consultation-cum- Disclosure workshop would be conducted at locations in each of the Project Wards to launch the RAP implementation. The workshop will have participation from representatives of the affected people, other stakeholder’s/partner agencies and County Officials. The objective of the workshop will be to:

126 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

• Create awareness on the overall features of project • Contents of the RAP particularly with respect to applicable entitlements process; and • Provide information on mechanisms and processes for sensitization, participation and consultation and grievance redressal for compensation and LRP.

Undertake Financial Literacy awareness programs: Financial Literacy awareness trainings would be undertaken with all PAP prior to payment of compensation.

Other Activities during Financial Literacy Awareness Program: As it would be last stage of interaction by the RAP implementation unit with the PAPs prior to issuance of Compensation Payments, the following activities would be additionally undertaken:

▪ Recording any changes to option on in kind compensation: During the training if any PAP (losing main dwelling structure) indicates change to the previous option i.e. prefers cash now rather than replacement house as chosen earlier, it shall be shall be duly recorded

12.6 ACTIVITIES TO BE COMPLETED PRIOR TO COMMENCEMENT OF CIVIL WORKS • Opening of Bank accounts for PAP: NLC in collaboration with RICU would counsel all PAP due to receive compensation amounts above the agreed threshold and provide necessary information to open Bank accounts or provide account details if they already have bank accounts. • Provision of capacity building trainings: KWSCRP/PIU will make arrangements for provision of various programs geared to restore PAP’ livelihoods as part of the compensation. • Commence Additional Outreach Activities: All outreach activities proposed such as production of radio programs, jingles, posters, etc. for effective dissemination and outreach will be developed and commenced. • Hold ward level meetings to counsel the PAP: ward level meetings would be held to inform PAP about the processes and agencies involved in compensation payment, RAP implementation and civil works commencement. Such meetings would be organized by the RAP/LRP Implementation and Compensation Unit. • Payment of compensation and vacation of land: NLC will make the Compensation payments as per the amounts due to each PAP direct to the Bank and against provision of PAP ID card or government issued ID Card. • Handover of site for construction: Once all property on the stated land is vacated, the site will be considered as free from encumbrances to handover to the Contractor for commencing construction related activities.

12.7 ACTIVITIES TO BE COMPLETED FOR COMPLETION OF ALL ACTIVITIES UNDER RAP/LRP Identification of PAP affected by construction works and Payment of Compensation: Once the Civil Works Contractor has identified the number and locations of various structures, NLC will enumerate the PAP and record the affected assets on the parcel of land to compute compensation payable. It will inform MOWI for its approval, provide details of the PAP, to MOWI for onward transmission to the PAP for payment.

127 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Administration of HIV/AIDS awareness campaigns: RICU will be responsible for organizing the HIV/AIDS awareness campaigns for the benefit of the communities, while Contractor shall be responsible for organizing the same for the worker personnel. The RICU will undertake the preparation of a combined report on these activities as part of its monthly report to KWSCRP/PMU with respect to progress on the activities on the ground.

Preparation of Periodic Internal Monitoring Reports: Internal Monitoring Reports will be produced periodically by KWSCRP/PIU and shared internally and with external stakeholders.

Implementation Completion Audit: As all activities relating to RAP/LRP implementation are expected to be completed in less than 1 year, Implementation Completion Audit would be carried at the end of Year 1 from the start date of RAP implementation to assess whether the project has met with the RAP objectives as a whole. KWSCRP will recruit a qualified professional provider to undertake the external and completion audit.

Submission of RAP Implementation Completion Report: Upon completion of all Implementation activities, the external firm shall produce Implementation Completion Report for submission to KWSCRP/PMU for its review. KWSCRP/PMU will compile and collate the findings along with its findings internal monitoring and submit same to World Bank.

12.8 COMPENSATION DELIVERY PROCESS The time period for implementation of activities to this RAP would be for twelve (12) months. It will start three months prior to construction works roll out. Table 12-0 provides the month-wise activity schedule for RAP Implementation that includes: activities prior to commencement of RAP implementation and concludes with the activities post RAP implementation such as Implementation Completion Audit. Given that all PAP have opted for the cash compensation, the overall process and procedures for the delivery of entitlements are as follows:

12.8.1 Continued Public Consultations A formal communication strategy will be prepared for the project to lay out various communication needs and outreach tools and explain the responsibility of RICU to convey the awareness of the project impacts and its impacts to various stakeholders. A key aspect of this strategy shall be the communication of any project related impacts. The objectives of this communication strategy have been envisaged as follows:

• To create project awareness among affected population. • To provide information to PAP about the adverse impacts on private properties, economic resources and livelihoods and mitigation measures considered in the RAP/LRP. • To take cognizance of PAP’s views, grievance redress, etc. to act on the desired lines of minimizing impacts creating a congenial environment for the implementation of the project.

The project affected people need to be taken into confidence through a sort of dialogue and that can be best done through adopting a planned communication strategy. Public / community consultation, focus group discussion, and other electronic communication means are required to

128 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

be taken up for this wider appreciation of the project. This is necessary for smooth implementation of the project.

12.9 USE AND APPLICATION OF ENTITLEMENTS Given that prior to compensation payments the district council will ensure that the bank (s) eligible for compensation payment provide basics of financial literacy sessions with individual PAP to use various banking systems, including depositing and drawing money, use of Automated Teller Machines and mobile banking. A sociological approach based on Social Learning and Appreciative Planning and Action will be used to build trust, create friendships, and mobilize community and family support. This approach will also be used for counseling and guiding the PAP to use the money for the purposes of re-establishing their homes and businesses.

• Once compensation payments have been made to PAP, the RICU has a critical role to play to ensure that PAP are using their entitlements for the purpose of relocation consistent with the timing in the vacating agreements described below (evacuation timing). To facilitate this process:

• PAP will be notified immediately after receiving their compensation packages to begin the process of salvaging any materials from demolished structures such as metal/wooden frames, glass, roofing iron sheets and bricks.

• Farmers will be given notice to harvest their crops before the end of the full growing season.

• The RICU will actively ensure that PAP vacate their sites within the time frame agreed including working with local authorities to provide notices and necessary action.

• The demolition team will demolish and remove any remaining un-cleared structures and construction works through the services of the designated construction Contractor.

In addition to these activities, the RICU shall work with communities to ensure effective restoration of pre-project levels of well-being. This may include any number of the following interventions:

1. Coordinating with project contractors to determine if service provision jobs to support construction works, such as security or food preparation, are available for PAP. 2. Identifying opportunities for training/skills development for employment in both the formal and informal sector that may be available in the area with its well-developed educational systems including, masonry, carpentry, plumbing, electrical, and motor vehicle repair skills 3. Connecting PAP to existing local projects or interventions designed to establish new income generating activities such as trading, adding value to crops, vegetable gardening, high-value and off-season horticulture, livestock, poultry, and egg production. 4. Assisting PAP to obtain legal land ownership and title within local land development schemes in cases where PAP choose in-kind compensation.

129 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

12.10 PAP EVACUATION TIMING To ensure timely completion of resettlement activities, the RICU will facilitate the resettlement process. During the NLC land acquisition process, PAP sign compensation agreements to indicate their willingness to move within 90 days upon receiving their compensations. PAP should demolish their structures to salvage useful building materials, such as bricks and roofing, harvest their crops and cut down their trees from the project areas.

The construction contractor will clear the debris from the construction site. The RICU will notify PAP of the demolition exercise through their community leaders and meetings, public notice boards and local radio. The RICU will also take into consideration assistance to vulnerable persons such as arranging for transport and other appropriate assistance when providing compensation and transferring to new areas.

12.10.1 Schedule of Implementation RAP Implementation Schedule The activities related to construction of Project are expected to commence in April 2018 by which time the PAPs are expected to have moved from the site. It is expected that by March 2018, 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.

Table 12-0: Implementation Schedule for the RAP (Tentative) Project Activities Weeks-Timeline 1 2 3 4 5 6 7 8 9 10 11 12 RAP approval (WB) RAP disclosure Establishment and Training of GRM Committee 1 months’ notice to PAPs Temporary Relocation of PAPs Grievance management Compensation payment RAP monitoring RAP completion and audit

130 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

13 MONITORING, EVALUATION SYSTEM AND COMPLETION AUDIT Implementation of RAP/LRP activities has one main challenge which include the following: 1. Geographically widespread locations involving jurisdiction of different Ward Administrators and chiefs requires involving multiple stakeholders who will be responsible for RAP/LRP Implementation, Compensation Payment and Grievance Handling. These stakeholders will be interacting with other project implementers such as the Civil Works Contractor etc.

It necessitates the need for a robust mechanism that enables to track progress, helps highlight bottlenecks, and redresses the issues effectively and in a timely manner. It also requires that an exercise be carried out at the end of RAP/LRP implementation period to ascertain if, indeed, the planned activities did enable achievement of the originally set objectives i.e. whether RAP/LRP objectives were met i.e. livelihoods and living standards of PAP were restored to pre-project status or enhanced.

For this purpose, KWSCRP/PMU will undertake Internal Concurrent Monitoring and Implementation Completion Audit of RAP/LRP for the Main pipeline and the connecting lines. Similarly, NEMA and Environmental Department of Mombasa County will have the mandate to make follow up on issues of livelihood restoration beyond the compensation as guided by the ESMP.

13.1 INTERNAL MONITORING BY KWSCRP Internal Concurrent would comprise Process and Performance Monitoring and enable to provide information on the progress on RAP/LRP implementation on a regular basis. While Process monitoring would enable the project authority to assess whether the due processes are being followed or not, Performance monitoring would mainly relate to achievement in measurable terms against the set targets. Details are provided below:

Purpose and contents: Performance Monitoring shall cover aspects such as continuity of staff involved in RAP/LRP implementation, timeliness of implementation of proposed activities. Key parameters, timelines and frequency of monitoring are as indicated in Table 13-0 below.

Table 13-0: Performance Indicators for RAP/LRP implementation Indicator/Parameter Timeline Frequency Variation in final number of PAP vis a vis the numbers given in the 1-2 months One time final RAP/LRP Undertaking of listed RAP/LRP activities with respect to proposed 1-4 Monthly schedule: • Operationalizing of GRM, payment of compensation, provision of financial literacy • Opening of bank accounts (wherever applicable) Variation in budget allocated in RAP/LRP estimate versus actual 3,6,9 Quarterly disbursed amount Payment of compensation prior to issuing notice for vacation of 3,6 Monthly lands and commencement of construction works Continuity of Personnel in RAP/LRP as per institutional 2,4,6,8,10 Bi Monthly arrangement

131 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Process Monitoring would involve the concurrent checking of implementation activities to ascertain whether these are being implemented in accordance with the RAP/LRP and thereby enable KWSCRP, MOWASCO and CGM authorities to take appropriate action to address any gaps, deviations, etc. It would be one continuous and routine process of tracking and reporting on activities and outputs associated with use of project resources. It would include collection, analysis, reporting and use of information about the progress against a time-bound implementation schedule indicated in the RAP/LRP.

Quantitative indicators that focus on physical and financial targets and delivery of entitlements to PAP will provide an efficient tool to supplement qualitative assessment that shall be carried out in the case of socioeconomic impacts.

Process Monitoring indicators: These have been devised along following parameters to measure progress of various activities: • Physical (land, infrastructure) • Financial (compensation/establishment) • Public facility • Implementation Processes • Institutional (including Grievance redressal)

Activities to be undertaken: RICU will undertake the following activities: • Hold monthly meetings on a specified date with all stakeholders with the Construction Contractor to review progress and other issues. • Undertaken joint visits to project sites to enable on-site assessment of progress achieved.

Composition of Concurrent Monitoring Team: These activities will be undertaken primarily by the RICU.

Documentation: Minutes of the meeting will be taken and kept as part of the project files. Any decisions taken would be communicated to the concerned stakeholder in written form with a specified date by when the action needs to be completed.

13.2 FINANCIER OF THE PROJECT The project donor (World Bank) will monitor KWSCRP progress in RAP/LRP implementation in context of the overall project progress. Specifically, it would undertake the following actions with respect to monitoring

• To hold periodic meeting with KWSCRP team to review the progress, ascertain the bottlenecks if any, provide advice and propose solutions. • Undertake a detailed review of the project implementation as part of the Disbursement Review with a specific focus on RAP/LRP implementation • Review Progress Reports submitted by KWSCRP – with respect to disbursement of compensation payments • Undertake periodic site visits to ascertain progress on implementation of RAP/LRP; • Participate in Launch and Annual Review Workshops and other interim events as might be required and organized.

132 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

13.3 IMPLEMENTATION COMPLETION AUDIT OF RAP/LRP IMPLEMENTATION An Implementation Completion Audit of RAP/LRP would be carried out at the end to: identify any gaps or outstanding issues; if identified, then propose a time bound Corrective Action Plan with Key Actions, dedicated Human Resources, propose Timeline for close-out and Budget.

It would draw upon information gathered from routine monitoring, supplemented by information from surveys/ studies, including baseline and follow-up studies and other sources. The exercise would help gain a deeper understanding and perspective of project outcomes and impacts. However, in case there are any outstanding issues that require attention, administering of additional measures for resolution, the exercise would continue till the time:

Either the RAP/LRP objectives are fully achieved; OR till they are deemed to be substantially achieved with systems and processes in place that are adequate to complete pending actions.

As the number of PAP is manageable, the Audit exercise would be undertaken to the total. Key considerations would include: • It should cover all types of PAP, nature impacts and mitigation measures administered; • Rate of annual inflation will be considered to ascertain percentage of change (negative/ Positive) in absolute and real terms in respect to income and expenditure figure. • It would prepare specific case studies to enable deeper appreciation of the mitigation measures.

It should measure the levels of satisfaction towards implementation arrangements, grievances resolution and performance of stakeholder / partner institutions.

KWSCRP/PMU will recruit a qualified provider to undertake the external audit and implementation completion audit.

133 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

14 RAP BUDGET The implementation of this RAP/LRP will require a budget for carrying out the action plan. For paying the compensation amounts to PAP for losses of properties incurred upon them due to the project in one hand and also for engaging RICU on the other hand are required to be coasted for arriving at the final budget of the RAP/LRP.

The total cost of implementing the RAP/LRP has been provided below in Tables 14-0-14-9 below. The break -down of the administrative costs presented in the validity period of the RAP budget will be six months. The inflation rate should be considered to the PAP in case the implementation will be done after six months from the date of submission/approval of this RAP.

Table 14-0. Mikindani Area ITEM COST (Kshs) Structures 3,085,000.00 Trees and Crops 0.0 56Loss of Business 168,000.00 Total Amount 3,253,000.00

Table 14-1. Jomvu Area ITEM COST (Kshs) Structures 150,000.00 Trees and Crops 0.0 Loss of Business 198,000.00 Total Amount 348,000.00

Table 14-2. Miritini Area ITEM COST (Kshs) Land 150,000.00 Structures 0.0 Trees and Crops 13,0000 Loss of Business 141,000.00 Total Amount 304,000.00

Table 14-3: Total Compensation For Trees and Crops Total Cost Kshs. 13,000.00

Table 14-4: Total Compensation For Structures Number of Structures Replacement Value (Kshs)

Grand Total Kshs. 3,235,000.00

Table 14-5: Total Compensation For Loss of Business Grand Total Kshs. 507,000.00

56Business denotes PAPs who are conducting their businesses along the way-leave.

134 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

Table 14-6: Total Compensation For Land Area Size Affected (Acres) Amount In Ksh. Mikindani 0.0 0.0 Jomvu 0.0 0.0 Miritini 0.53 150,000.00 GRAND TOTAL 0.53 150,000.00

Table 14-7: Other Compensation Aspects Disturbance Allowance Kshs. 585,750.00 Grand Total Kshs. 585,750.00

Table 14-8: RAP Implementation Costs Aspect Value (Ksh) Financial/Money Management Training/ Meetings of Resettlement 292,875.00 Committees/Administrative Costs External Monitoring and External Coordination for RAP Implementation 292,875.00 Grand Total 292,875.00

Table 14-9: Total RAP Budget Total RAP Cost Ksh Land 150,000.00 Structures 3,235,000.00 Crops & Trees 13,000.00 Business 507,000.00 Sub Total 3,905,000.00 Livelihood Restoration Costs (15%) 585,750.00 Other Implementation Costs (15%) 585,750.00 Contingency (5%) 195,250.00 TOTAL 5,271,750.00

The costs for the RAP implementation have taken into consideration the following pertinent task activities: a) Personnel administrative costs. b) Administrative logistical costs (stationary, fuel/transport for fieldwork/monitoring activities, public notices/announcements, start-up equipment and furniture, maintenance and service costs, hygiene sundries, refreshments for staff and visitors, including legal fees and unforeseen litigation). c) Special assistance packages for vulnerable PAPs. e) Mid-term/end-term evaluation and completion report assignments. f) Other incidentals estimated.

135 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15 APPENDIX

136 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.1 APPENDIX 1-PUBLIC CONSULTATION MINUTES -See Separate Attachment-

137 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.2 APPENDIX 2-VALUATION ROLL -See Separate Attachment-

138 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.3 APPENDIX 3-MAPS OF PROJECT ROUTING -See Separate Attachment-

139 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.4 APPENDIX 4-SELECTED PHOTOGRAPHS -See Separate Attachment-

140 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.5 APPENDIX 5-SOCIO-ECONOMIC ASSESSMENT QUESTIONNAIRE

-See Separate Attachment-

141 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report

15.6 APPENDIX 6-GRIEVANCE REDRESS SAMPLE FORM

-See Separate Attachment-

142 West Mainland Water Supply Project (Kenya Water Security and Climate Resilience Project RAP Report