Prisca Aluoch Odongo & Another v National Irrigation Authority & 5 Others

NATIONAL LAND COMMISSION........................................................4 TH RESPONDENT ATTORNEY GENERAL..........................................................................5 TH RESPONDENT JUDGMENT The Petition 1. The Petitioners, Prisca Aluoch Odongo and Brian Tabu Odongo, moved this Court by way of a Petition dated 11th March 2022 seeking, principally, the following reliefs against the Respondents jointly and severally: a) A declaration that the Petitioners are Internally Displaced Persons and victims of Development Induced Displacement and involuntary resettlement, caused by the activities of the 1 st Respondent, National Irrigation Authority, in undertaking the Public Infrastructure Project known as the Lower Kuja Irrigation Development Project, in Sagama Village, Block 3-A, and that they are entitled to resettlement, compensation, protection and assistance under the applicable law. b) A declaration that the acts and omissions of the 1 st, 2nd 3rd and 4th Respondents contravened the Constitution and statute law and violated the Petitioners' rights under Articles 26(1), 27, 28, 29, 31, 43, 47, 48, 54 and 57 of the Constitution. c) Damages for violation of the Petitioners' rights against the 1 st Respondent and such other Respondents as the Court may find ELC PETITION NO. E001 OF 2022 2

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liable. d) Compensation in the nature of special damages for the value of the 1st Petitioner's house, alternative land, relocation and resettlement costs, together with compensation under the applicable statutory framework governing internally displaced persons. e) Costs of the Petition, together with interest on damages, compensation and costs. 2. The Petition arises from the implementation of the Lower Kuja Irrigation Development Project in Sagama area, Migori County. The Petitioners' case is that they had been living on and deriving their livelihood from land parcel North Kadem/Kanyamori/1051, which they describe as ancestral and matrimonial land associated with the family of the late Wilson Odongo Ochara. They contend that they had established homes and livelihood activities on the land and had occupied it for many years before the events giving rise to the Petition. 3. They aver that in or about September 2019, the 1st Respondent entered upon the land in the course of implementing the irrigation project, excavated trenches, created irrigation infrastructure and interfered with the physical condition and use of the property. According to the Petitioners, those activities were undertaken without prior acquisition of the land, adequate notice, consultation or compensation and culminated in the destruction of their homestead and their displacement from the property. 4. The Petitioners further maintain that the project works materially altered the condition of the land and surrounding area, including through waterlogging, degradation and creation of conditions which ELC PETITION NO. E001 OF 2022 3

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rendered the property unsuitable for habitation and agricultural use. The 1st Petitioner, who describes herself as an elderly blind woman living with disability, states that the displacement deprived her of her home, livelihood and the family support system on which she depended. The Petitioners therefore contend that the Respondents' actions infringed, among others, their rights to dignity, property, livelihood, fair administrative action, equality and a clean and healthy environment. 5. A central complaint in the Petition is that the Petitioners were displaced without a Resettlement Action Plan being implemented in their favour and without compensation notwithstanding their contention that other project-affected persons had been compensated. They consequently accuse the Respondents, particularly the 1st Respondent, of undertaking the project in disregard of constitutional, statutory and procedural safeguards governing compulsory interference with private land, displacement and resettlement. The Petition therefore seeks both declaratory reliefs and monetary compensation arising from the alleged loss of their home, livelihood and constitutional rights. The Respondents’ Response 6. The Petition was opposed. The 1st Respondent filed a Notice of Preliminary Objection dated 14th September 2022, contending, inter alia, that the Petition was res judicata by reason of the decision in Homa Bay ELC Petition No. 8 of 2021 (formerly Migori ELC Petition No. E001 of 2020), Prisca Aluoch Odongo & Others v National Irrigation Authority & Others; that this Court’s jurisdiction had been prematurely invoked since the grievances ought first to have been placed before the National Environment Tribunal; that the Petition offended the doctrine of exhaustion; and that it constituted an abuse of the process ELC PETITION NO. E001 OF 2022 4

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of the Court. 7. The Preliminary Objection was subsequently heard and determined by the Court and does not therefore fall for determination afresh in this Judgment. The record shows that the question of jurisdiction raised therein was resolved by the Court, after which the matter proceeded towards hearing of the substantive Petition. 8. The 3rd and 5th Respondents, on their part, opposed the Petition through Grounds of Opposition. They contended that the Petition was incurably defective, incompetent and unsupported by the affidavits relied upon; that the issues raised were moot and res judicata; and that the Court lacked jurisdiction in view of the statutory mechanisms provided under the Environmental Management and Coordination Act and the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act. They further asserted that the Petitioners had failed to exhaust the available dispute-resolution mechanisms before approaching the Court. 9. They further contended that the Petitioners had not demonstrated that they had lodged any complaint, been profiled or registered as internally displaced persons or victims of displacement arising from the Lower Kuja Irrigation Project. They denied that the Petitioners had established any violation of their constitutional rights by the 3 rd and 5th Respondents and maintained that the Petition lacked the requisite specificity and evidential foundation to sustain a constitutional claim. 10. Lastly, the 3rd and 5th Respondents maintained that no basis had been laid for the declaratory or compensatory reliefs sought. In particular, they contended that there was no evidence that the ELC PETITION NO. E001 OF 2022 5

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Petitioners’ houses or properties had been destroyed by the Lower Kuja Irrigation Project and that the subject parcels had not been compulsorily acquired by the Government. They therefore urged the Court to dismiss the Petition with costs. Submissions 13. The Petitioners filed written submissions dated 7th September 2022. In their submissions, they maintained that the questions arising for determination concerned whether the implementation of the Lower Kuja Irrigation Development Project, and the Respondents’ acts and omissions attendant thereto, violated their constitutional and statutory rights; specifically, their rights to a clean and healthy environment under Article 42, property under Article 40, housing and other socio-economic rights under Article 43, dignity under Article 28, life under Article 26, fair administrative action under Article 47, equality and equal protection of the law under Article 27, and the protections accorded to persons with disabilities and elderly persons under Articles 54 and 57 of the Constitution. They further urged the Court to determine whether, arising from those alleged violations and their displacement from North Kadem/Kanyamori/1051, they were entitled to resettlement, compensation, damages and the other reliefs sought in the Petition. 14. In support of those submissions, the Petitioners relied on several authorities. On constitutional values and the application of the Bill of Rights, they cited In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, for the proposition that the national values and principles of governance provide an important anchor in the interpretation of the Constitution. On forced eviction, housing and socio-economic rights, they relied on William Musembi & 13 Others -Vs- Moi Educational Centre ELC PETITION NO. E001 OF 2022 6

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Co. Ltd & 3 Others [2021] eKLR, in which the Supreme Court addressed forced eviction as capable of implicating a range of constitutional rights including dignity and housing; Mitu-Bell Welfare Society -Vs- Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 August 2021) (Judgment), on the protection of persons rendered homeless through eviction and the availability of appropriate constitutional remedies; and Satrose Ayuma & 11 Others -Vs- Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others [2013] eKLR, on the requirement for humane treatment, consultation and protection of persons affected by eviction or displacement. 15. The Petitioners also relied on Moses Onchiri -Vs- Kenya Ports Authority [2017] eKLR in advancing the proposition that even a trespasser is protected against arbitrary or wanton destruction of property. They applied the foregoing authorities to their contention that the 1st Respondent entered the suit land without lawful acquisition or notice, caused destruction and displacement and failed thereafter to compensate or resettle them. 16. The record further shows that despite repeated opportunities being granted to the Respondents to file their submissions, none had been placed before the Court by 28 th April 2026. On that date, counsel for the 3rd and 5th Respondents sought further time, while the Petitioners protested the continued delay and pointed out that the matter had remained pending for a considerable period. Issues for Determination ELC PETITION NO. E001 OF 2022 7

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17. I have Having considered the Petition, the material placed before the Court and the Petitioners’ written submissions, the single issue arising for determination is: Whether the Petitioners have established a violation of their constitutional and statutory rights arising from the implementation of the Lower Kuja Irrigation Development Project and, if so, whether they are entitled to the reliefs sought in the Petition. Analysis and Determination 18. The Petition is founded on the complaint that the implementation of the Lower Kuja Irrigation Development Project interfered with the Petitioners’ occupation, home and livelihood on land parcel North Kadem/Kanyamori/1051 without prior notice, consultation, compensation or resettlement. The Petitioners do not challenge the public purpose of the irrigation project. Their grievance concerns the manner in which the project was implemented and the consequences which they say followed from the works undertaken by the 1st Respondent. 19. Article 40(1) of the Constitution protects the right of every person, either individually or in association with others, to acquire and own property. Article 40(3) prohibits the State from depriving a person of property unless the deprivation results from an acquisition for a public purpose or in the public interest, is carried out in accordance with the Constitution and an Act of Parliament, and is accompanied by prompt payment in full of just compensation. The Petitioners’ case is that the works were undertaken on the land they occupied without any process of acquisition or compensation. 20. The material before the Court, however, shows that the Petitioners do not claim to have been the registered proprietors of North Kadem/Kanyamori/1051. They describe the property as ancestral and ELC PETITION NO. E001 OF 2022 8

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matrimonial land associated with the late Wilson Odongo Ochara and state that they had established their home and livelihood thereon. Their occupation of the land is therefore distinct from proof of a registered proprietary interest in the entire parcel. While that distinction bears upon the extent of any claim under Article 40, it does not extinguish the other constitutional rights which may arise from interference with an established home and occupation. 21. Article 43(1)(b) guarantees every person the right to accessible and adequate housing and to reasonable standards of sanitation, while Article 28 provides that every person has inherent dignity and the right to have that dignity respected and protected. The Petitioners averred that they were residing on the property when the irrigation works were undertaken, that their homestead was affected and that they were displaced from the land. The 1st Petitioner further pleaded that she is elderly and blind. Articles 54 and 57 of the Constitution specifically protect persons with disabilities and older members of society and require that they be treated with dignity and be afforded the protections necessary for them to live in dignity and security. 22. Article 47(1) guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) further entitles a person whose right or fundamental freedom has been or is likely to be adversely affected by administrative action to written reasons for that action. Those guarantees are given effect by the Fair Administrative Action Act. A public project which directly affects a person’s home, occupation and livelihood cannot be implemented without regard to those procedural protections. 23. The Petitioners maintained that they were neither notified nor consulted before the project works affected the land they occupied and that no process was undertaken to assess their interests, displacement or ELC PETITION NO. E001 OF 2022 9

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entitlement to compensation. The Respondents raised Grounds of Opposition disputing the legal foundation of the Petition, but no replying affidavit was placed before the Court controverting the factual account contained in the Petition and supporting affidavit. There is equally no material before the Court demonstrating any notice issued to the Petitioners, consultation undertaken with them, assessment of their interests or decision communicated to them before the interference complained of. 24. The Petitioners also invoked the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012. The Act applies to displacement occasioned by development projects and requires measures to prevent arbitrary displacement and to protect and assist persons affected by such displacement. The Petitioners’ complaint is that although the irrigation project displaced them from the place where they lived, they were neither incorporated into a resettlement programme nor compensated. 25. The 3rd and 5th Respondents contended that the Petitioners had not shown that they had lodged a complaint, been profiled or registered as internally displaced persons. That contention does not answer the factual question whether the Petitioners were displaced by the project. Where displacement is alleged to have resulted from the implementation of a public development project, the absence of profiling or registration cannot, without more, disprove the displacement itself. The evidence placed before the Court must instead establish whether the Petitioners were occupying the affected area, whether the project interfered with that occupation, and whether the safeguards contemplated by the Constitution and statute were observed. 26. Article 42 of the Constitution guarantees every person the right to a clean and healthy environment, while Article 69 imposes obligations upon ELC PETITION NO. E001 OF 2022 10

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the State in respect of sustainable management and protection of the environment. The Petitioners pleaded that the irrigation works resulted in waterlogging and degradation of the land, thereby affecting its habitability and agricultural use. Their environmental complaint was therefore tied to the physical effects which they attributed to the project upon the area they occupied. 27. The acts complained of are principally attributed to the 1st Respondent, which implemented the Lower Kuja Irrigation Development Project. The remaining Respondents were joined because of their respective functions relating to environmental regulation, land administration, compulsory acquisition and the protection of persons affected by displacement. The material before the Court does not identify with the same specificity any direct physical act by the 2 nd , 3rd, 4th and 5th Respondents comparable to the entry, excavation and project works attributed to the 1st Respondent. Liability cannot therefore arise against each Respondent merely from the fact of joinder. 28. The Petitioners have shown that they were occupying and using the affected land when the project works were undertaken and that those works interfered with their home and occupation. There is no evidence of a prior process of notice, consultation, assessment, compensation or resettlement directed at them before that interference occurred. The manner in which the project was implemented in relation to the Petitioners was therefore inconsistent with the protections afforded by Articles 28, 43 and 47 of the Constitution and with the statutory safeguards applicable to persons affected by development-induced displacement. 29. The evidence does not, however, establish that the Petitioners held the registered proprietary interest in the entirety of North Kadem/Kanyamori/1051. Their occupation and use of the land cannot, ELC PETITION NO. E001 OF 2022 11

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without proof of the proprietary interest asserted, sustain compensation for the value of the whole parcel as though it had been compulsorily acquired from them. Their established injury lies in the interference with their home, occupation and livelihood and in the absence of a lawful and procedurally fair process preceding that interference. 30. Article 23(3) of the Constitution empowers the Court to grant appropriate relief where a right or fundamental freedom has been violated, including a declaration of rights and an order for compensation. On the evidence placed before the Court, the Petitioners have established infringement of their rights under Articles 28, 43 and 47 of the Constitution arising from the manner in which the Lower Kuja Irrigation Development Project affected their occupation and home. The claim founded upon ownership of the entire suit parcel under Article 40 has not been established to the same extent. Final Disposition 31. In the result, the Petition partly succeeds and I make the following orders: a) A declaration is hereby issued that the 1 st Respondent violated the Petitioners’ rights under Articles 28, 43 and 47 of the Constitution. b) A declaration is hereby issued that the Petitioners were persons affected by development-induced displacement arising from the Lower Kuja Irrigation Development Project. c) The claims for compensation and other monetary reliefs are declined for want of sufficient proof. d) The Petition against the 2nd, 3rd, 4th and 5th Respondents is dismissed. e) The Petitioners shall have the costs of the Petition against the 1 st Respondent. ELC PETITION NO. E001 OF 2022 12

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It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 24th day of September, 2026. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: Mr. Martin Odero for the Petitioners Mr. Ochola for the 1st Respondent N/A for the 2nd, 3rd, 4th and 5th Respondents Ms. Mwangi ELC PETITION NO. E001 OF 2022 Court Assistant 13

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