rp1087 v2 public disclosure authorized - world...

REVISED DRAFT RESETTLEMENT ACTION PLAN FOR THE

PROPOSED

KISUMU KAKAMEGA WEBUYE KITALE ROAD

SG M

K N H AP B

NAIROBI KENYA

P BO O PP O B

NAIROBI TF

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RP1087 v2

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CERTIFICATION T S K C M EMIAAK W E P C S

R MAP NEMA EIA EA L E TE M C A N

E I A R W BO P I R

WK

K W K R N W R V P

Consultant

N O O PAddress: P.O Box 54021-00200, Nairobi

E

S

Date: _______________________________________________

Client

Name: Kenya National Highway Authority (KENHA)

Address: P.O Box ______________________________________

Email: _______________________________________________

Sign: ________________________________________________

Date: ________________________________________________

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List of Abbreviations Abbreviation Description ADC Area Development Committees BP Best Practices CDF Community Development Fund CIP Community Involvement Programme CSR Corporate Social Responsibility DC’ District Commissioner DF Displaced families DO District Officer DPs Displaced Person DRC Dispute Resolution Centre EIA Environmental Impact Assessment

ESIA Environmental and Social Impact Assessment

EMCA Environmental Management and Coordination Act

GRRM Grievances Referral and Redress mechanism IA Implementing Agent

ISK Institution of Surveyors of Kenya

LRC Land Resolution Committee

LDC Location Development Committee

CLIENT Kenya National Highway Authority

LDC Land Dispute Committee

M&E Monitoring and Evaluation MOW Ministry of Works NEMA National Environment Management Authority OOP Otieno Odongo and Partners Consulting Engineers OP Operation Procedure PAF Project Affected Families PAH Project Affected Households PAP Project Affected Persons PC PAP Committee PIU Project Implementation Unit RAP Resettlement Action Plan R.D.A Registration of Documents Act Cap 285 Laws of Kenya RDC Residents Development Committee RPF Resettlement Policy Framework RSC Resettlement Steering Committee WB World Bank

TABLE OF CONTENTS CERTIFICATION..................................................................................................................................................... II LIST OF ABBREVIATIONS......................................................................................................................................I EXECUTIVE SUMMARY.......................................................................................................................................III

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CHAPTER 1: INTRODUCTION.............................................................................................................................. 1 1.1 PROJECT BACKGROUND.........................................................................................................................1 1.2 SCOPE OF THE RAP ................................................................................................................................1 1.3 PROJECT LOCATION AND IMPACTS ON PROPERTY..................................................................................2 1.4 RAP RESETTLEMENT OBJECTIVES..........................................................................................................2 1.5 TERMS OF REFERENCE............................................................................................................................3 1.6 PROJECT JUSTIFICATION THROUGH PAPS;..............................................................................................3 1.7 LAND COMPENSATION AND WAY LEAVE ACQUISITION..........................................................................4 1.8 GUIDING PRINCIPLES..............................................................................................................................5 1.9 PUBLIC PARTICIPATION..........................................................................................................................7 1.10 LEGAL AND INSTITUTIONAL FRAMEWORK.............................................................................................7

CHAPTER 2: METHODOLOGY............................................................................................................................. 9 2.1 DATA COLLECTION SCOPE......................................................................................................................9 2.2 DATA COLLECTION MECHANISMS........................................................................................................10

CHAPTER 3: POLICY, LEGISLATION AND ADMINISTRATIVE FRAMEWORK.................................... 11 3.1 LEGAL LEGISLATIONS...................................................................................................................11 3.2 ADMINISTRATIVE FRAMEWORKS; ........................................................................................................11 3.3 STATUTORY MECHANISM FOR LAND ACQUISITION...............................................................................11 3.4 WORLD BANK INVOLUNTARY RESETTLEMENT RELATED POLICIES; ....................................................13

3.4.1. Land Acquisition Act Chapter 295 .....................................................................................................13 3.4.2. Trust land Acquisition Act Chapter 288 .............................................................................................15 3.4.3. Way leaves act (Cap. 292)..................................................................................................................16 3.4.4. Registration of Titles Act Chapter 281 ...............................................................................................16 3.4.5. The Land Adjudication Act Chapter 95 Laws of Kenya .....................................................................16 3.4.6. Valuation and Related Legal Issues ...................................................................................................16 3.4.7. Physical Planning Act ........................................................................................................................17

3.5 DISPUTE RESOLUTION AND ARBITRATION OF DISPUTES. .....................................................................17 3.6 WORLD BANK INVOLUNTARY RESETTLEMENT OP 4.12 ......................................................................18

3.6.1. Gaps between GoK Laws, WB Policies on Land acquisition and Resettlement ..............................18 3.7 MECHANISM FOR RESOLUTION OF GAPS BETWEEN THE GOK AND OP 4.12 ON RESETTLEMENT..........20

3.7.1. Minimization of Displacement; ..........................................................................................................20 3.7.2. Livelihood Restoration .......................................................................................................................21 3.7.3. Assistance to Vulnerable Groups; ......................................................................................................22 3.7.4. Resettlement Steering Committee Unit (RSC) ....................................................................................22 3.7.5. PAP Committee (PC)..........................................................................................................................23 3.7.6. Implementing Agent............................................................................................................................24

CHAPTER 4: FINDINGS AND POTENTIAL IMPACTS................................................................................... 25 4.1. FIELD FINDINGS..........................................................................................................................................26 4.2. ELIGIBILITY OF AFFECTED POPULATIONS...................................................................................................26 4.3. DETAILS OF MAJOR AREAS OF IMPACT.......................................................................................................26 4.3.1. ROAD INTERCHANGE...............................................................................................................................26 4.3.2. MARKET CENTRES ALONG THE PROPOSED ROAD AND ROAD STRETCHES .......................................28 4.3.3. PROJECT AFFECTED PERSONS (PAPS) .....................................................................................................28 4.4. VALUATION AND COMPENSATION OF LOSSES.............................................................................................29 4.4.1. LAND LOSSES..........................................................................................................................................29 4.4.2. BUILDINGS ..............................................................................................................................................29 4.4.3. BUSINESS PREMISES................................................................................................................................29 4.4.4. OPEN AIR MARKETS................................................................................................................................29 4.5. RESETTLEMENT MEASURES........................................................................................................................30 4.6. COMMUNITY PARTICIPATION .....................................................................................................................30 4.7. IDENTIFIED PROJECT IMPACTS....................................................................................................................31 4.7.1. POSITIVE IMPACTS OF THE PROJECT.........................................................................................................31 4.7.2. NEGATIVE IMPACTS.................................................................................................................................31

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4.8. MITIGATION MEASURES.............................................................................................................................32 4.9. COMMUNITY ENGAGEMENT REQUIREMENTS.............................................................................................34 4.10. INFORMATION EXCHANGE........................................................................................................................35 4.11. NOMINATION OF PAPSREPRESENTATIVES...............................................................................................35 4.12. ALTERNATIVE DESIGN TO MINIMIZE RESETTLEMENT...............................................................................36 4.13. LIVELIHOOD RESTORATION......................................................................................................................36

CHAPTER 5: CONFLICTS RESOLUTIONS, REDDRESS AND COMPENSATION PROCEDURES........ 39 5.1. INTRODUCTION...........................................................................................................................................39 5.2. CONFLICTS ARISING...................................................................................................................................40

5.2.1. Land Resettlement Conflicts ...............................................................................................................40 5.2.2. Socio-Cultural Conflicts.....................................................................................................................40

5.3. GRIEVANCES & REDRESS MECHANISMS....................................................................................................41 5.3.1. Compensation Procedures .................................................................................................................42 5.3.2. Compensation and Relocation Times .................................................................................................42 5.3.3. Integration with host communities .....................................................................................................43

CHAPTER 6: RESETTLEMENT, COMPENSATION ACTION PLAN & SCHEDULE ................................ 44 6.1. INTRODUCTION...........................................................................................................................................44 6.2. IMPLEMENTATION PROCESS FOR THE RAP..................................................................................................44 6.3. CUT-OFF-DATE AND ELIGIBILITY NOTICE .................................................................................................45 6.4. ENTITLEMENT MATRIX.......................................................................................................................46 6.5. MATRIX OF RESETTLEMENT ACTION PLAN AND SCHEDULE.......................................................................47

CHAPTER 7: ENVIRONMENTAL MANAGEMENT PLAN FOR POTENTIAL NEGATIVE IMPACTS.. 49 7.1. INTRODUCTION...........................................................................................................................................49 7.2. ENVIRONMENTAL MANAGEMENT PLAN MATRIX .......................................................................................56

CHAPTER 8: MONITORING & EVALUATION MATRIX AFTER RESETTLEMENT .............................. 57 8.1. RAP MONITORING FRAMEWORK ...............................................................................................................57 8.2. M & E MATRIX FOR RESETTLEMENT.........................................................................................................59 8.3 INTERNAL MONITORING..............................................................................................................................67 8.4. EXTERNAL MONITORING AND EVALUATION ..............................................................................................68 8.5. POST EVALUATION (COMPLETION AUDIT) .................................................................................................68

CHAPTER 9: RAP BUDGET.................................................................................................................................. 69 9.1. INTRODUCTION...........................................................................................................................................69 9.2. MATRIX OF ACTIVITIES AND COST IMPLICATION .......................................................................................70

9.2.1.BUDGET BASED ON REDUCED ROAD WIDTH TO 40M ..............................................................70 CHAPTER 10: CONCLUSIONS AND RECOMMENDATIONS ....................................................................... 72

10.1. CONCLUSIONS..........................................................................................................................................72 10.2. RECOMMENDATIONS................................................................................................................................72

REFERENCES.......................................................................................................................................................... 73

EXECUTIVE SUMMARY The Kenya National Highway Authority (KENHA) is in the process of rehabilitating the

Kisumu-Kakamega-Kitale road located in Nyanza, Western and Rift Valley Provinces. The

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rehabilitation of the road project shall involve excavation of the existing road surface to pave

way for fresh carpeting, horizontal alignment of narrow sections of the road within the road

reserve, development of interchanges and evacuation of those who have encroached into the

road reserve. The first two component of the development project namely carpeting and

horizontal alignment of narrow sections of the road within the road reserve shall not result in

land acquisition but the last two will lead to acquisition and thus necessitate the development

of aResettlement Action Plan (RAP).

The aim of the proposed project is to enhance the road communication network in the

Western Kenya circuit in tandem with the requirements of Vision 2030.

The consultant has undertaken the design work for the proposed rehabilitation project and,

has produced project implementation documents such as the engineering drawings. The

proposed project has triggered the World Bank Operation Policy (OP) 4.12 on Involuntary

Resettlement due to the need to acquire private land for the development of a public project

and due to relocation of people that depend on it for their daily earnings such as at the

Khayega market, Kaburengo junction among others. This has necessitated the development

of this Resettlement Action Plan (RAP) before project implementation.

The overall objective of the RAP is to ensure that affected individuals, households and,

affected and/or displaced communities are meaningfully consulted, have participated in the

planning process and, are adequately compensated to the extent that at least their pre-

displacement incomes or livelihoods have been restored or improved and, that the process has

been a fair and transparent one.

The objective of the RAP is achieved through collections of key indicative information on the

Project Affected Persons (PAPs) pre-impact status so as to enable develop an entitlement

matrix aimed at restoring their livelihood to the pre-impact status or improving them where

possible.

The objective of the RAP will be achieved through:

• E• C

• I P A P PAP

• Conducting inventory of all assets to be affected or damaged by the project including

details on land ownership and extent of land loss due to the land acquisition/

negotiation. (Actual land ownership, and not only in terms of land records)

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• Valuating affected assets at full replacement value and determining any

supplementary payments e.g. unit price lists and itemized breakdowns of

compensation offers and participation;

• Instituting valuation negotiations and devising grievance referral and redress

procedures and mechanisms;

• Incorporation of external policies, procedures and institutional arrangements not

covered by the Kenyan law;

• Conducting monitoring and evaluation of the PAPs after resettlement;

• Developing a timeline for the RAP; and

• Developing a Budget for all RAP activities.

T LA A T L A W A V A PP A E I A A R

E M C A EMCA W B S G O P OP

TI

PAPPAP

P

Dynamics of the Traders The traders in the affected project zones are very dynamic in nature and can be categorised as nomadic in nature. This is critical, as most of the people affected along the road reserve are traders who are always looking for lucrative markets which take place in different areas on different days of the week. For example, on Monday one can find traders on the road in Kakamega; if one goes back the next day the road reserve will be empty and traders would have moved to a different market. This can also be attested by the site visit undertaken on the 14th of January 2011 by a team consisitnig of the consultant, the World Bank Mission representative and, the Environmental Manager -KENHA whereby the findings indicated that the number of PAPs were negligible. But a few days later when the socio-economist visited the same site the scenario was different as the number of PAPs had soared and this cannot be attributed to encroachment by ineligible PAPs but because they are present on market days. This dynamic behaviour was also supported by the traders who were enumerated during the survey, as they stated that considering themselves as PAPs would be a bit difficult as it would not be clear who is being compensated for what. The traders also added that the most important thing is for the road to be developed as it will facilitate quick and efficient trade in the area. They added that currently they have a lot of losses due to the poor road network. The traders stated that they will move temporarily during construction and will be back once the works will be finished. They added other forms of engagement, such as casual employement during construction period, will considerably reduce the number of traders on the road reserve during market days. The list of traders found on the road reserve during the census period has been attached below. The traders were reluctant to provide details of their identification documents as they feared future consequences, despite the fact that contact numbers of their selected representatives who can verify the list of traders were present on the particular date of the

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enumeration are provided under Annex 2 of this report. The traders at the Kakamega town section will move back to thier market which is currently under construction once the works are completed. Cut-Off Date Despite the above-mentioned findings on the dynamism of the traders, a cut-off date to control any form of encroachment into the road reserve for the variuous affected project zones was established, depending on the day the enumaration of the PAPs, and detailed sensitisation was undertaken. The cut-off dates for the various affected zones is as tabulated in Table 1 below. Table 1: Cut off-date for the various affected zones No./S Cut-Off-Date Affected Area 1. 25/1/2011 Mamboleo (proposed interchanger site) 2. 25/1/2011 Kiboswa market 3. 25/1/2011 Gambogi 4. 25/1/2011 Mbale Market 5. 26/1/2011 Majengo market 6. 26/1/2011 Chavakali 7. 26/1/2011 Khayega market 8. 26/1/2011 Kakamega 9. 26/1/2011 Lubao 10. 26/1/2011 Kakunga 11. 26/1/2011 Butali/Matete 12. 26/1/2011 Malava 13. 26/1/2011 Kaburengo (proposed interchanger site) 14. 27/1/2011 Webuye (proposed interchanger site) 15. 27/1/2011 Lugulu 16. 27/1/2011 Toll (Kiminini)

17. 27/1/2011 Misikhu

18. 27/1/2011 Shikhendu 19. 27/1/2011 Kamukuyua 20. 27/1/2011 Kitale (proposed interchanger site)

The estimated number of PAPs to be affected by the proposed project is summarized in Table

2 below.

T S

N I L S P S TS

1 A1/C34 (Mamboleo) 2 acres 5 24

2 A1/A104 (Kaburengo) 2 acres 4

1

3 A1/B2 (Webuye) 2 acres 20 0

4 A1/C39 (Kitale) 2 acres 0 1

Total 8 acres 29 26

T

PAP O

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T

PAP T

T T PAP

Description Total Structures

Total Units

Rate for PAPs PAPs

Permanent (Total = 29) Commercial (70%)

20 3 3 180 Residential (30%)

9 2 5 90

Temporary (Total = 26) Commercial (70%) 18 3 3 32 Residential (30%) 8 2 5 80

Total PAPs 382

T M

T

K I A A

T W K

T

T K J

G I

T

K K L

K W K

T

R

T T PAP

Lot 1 (Kisumu -Kakamega)

Total structures

Total units PAPs Rate/Unit PAPs

Temporary (Total = 40) 100%

40

40 3 120

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Lot 2 (Kakamega-Webuye)

Temporary (Total = 86) 100% 86 86 3 258

Lot 3 (Webuye-Kitale)

Temporary (Total = 377 ) 100% 377 377 3 1131

Total PAPs 1509 4 Interchanges ( Lot 1, Lot 2 & Lot 3) Total PAPS 382

Grand Total PAPs 1891

NB T C A

T PAP

K K

L K W W K

I

• T W

• T

• W

• O

L R

• C

• T

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CHAPTER 1: INTRODUCTION

PROJECT BACKGROUND The Government of Kenya (GOK) intends to rehabilitate and improve the level of service of

the existing Kisumu – Kakamega –Webuye – Kitale Road (A1).

To this end GOK had earmarked funds through the Development Budget for engaging the

services of a Consultancy Firm to undertake preliminary and detailed engineering design.

The Ministry of Roads and Public Works (MoRPW) – Now Kenya National Highways

Authority {KeNHA} accepted the proposal of Otieno Odongo & Partners (OOP) to provide

these services. This contract was executed on 25 June 2008, the effective date of the contract.

SCOPE OF THE RAP The aim of the RAP report is to develop an action plan that ensures that the PAPs livelihoods

and standards of living are improved or at least restored, in real terms, to pre-displacement

levels or to levels prevailing prior to the beginning of project implementation, whichever is

higher. The scope of work undertaken during the RAP preparation included:

• P• A• A PAP

• Conducting social-economic studies including census surveys, land tenure and

transfer systems, public infrastructure and, social services likely to be affected,

social-cultural characteristics of community to be affected and patterns of social

interactions in the affected communities, including social networks and social

support systems;

• A• A

• G T

T

• O O

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• RAP I D

T

• C T

• M A

W B

PROJECT LOCATION AND IMPACTS ON PROPERTY The proposed project traverses through four larger districts namely Kisumu, Kakamega,

Bungoma and Trans-Nzoia which were sub-divided through the boundary review process into

several districts thus the actual districts traversed by the project road are Kisumu East,

Vihiga, Kakamega East, Kakamega South, Kakamega Central, Kakmega North, Lugari,

Bungoma East and Trans Nzoia West districts.

The project design was reviewed and changed to minimize the number of PAPs. This was

meant to minimize the costs of resettlements and to enhance the process towards realization

of the project goal.

RAP RESETTLEMENT OBJECTIVES T RAP

PAPT RAP

PAP T

PAP

The RAP objective was achieved through the study of the following;

• Enumerating the affected households;

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• Identifying any vulnerable PAPs;

• Conducting inventory of all assets to be affected or damaged;

• Valuating those assets at full replacement value and determining any supplementary

payments e.g. unit price lists and itemized breakdowns of compensation offers and

participation;

• Institutions/PAPs valuation negotiations and grievance redress procedures/

mechanisms;

• Institutional arrangements within the Kenyan law

• Monitoring arrangements;


• Preparing a Budget for all RAP activities.

The information obtained was used to develop an entitlement matrix aimed at restoring

livelihood of the project affected persons.

TERMS OF REFERENCE • E• C

• E

• I P A P PAP

• Conducting inventory of all assets to be affected or damaged by the project including details on land ownership and extent of land loss due to the land acquisition/ negotiation. (Actual land ownership, and not only in terms of land records)

• Valuating affected assets at full replacement value and determining any supplementary payments e.g. unit price lists and itemized breakdowns of compensation offers and participation;

• Instituting valuation negotiations and devising grievance referral and redress procedures and mechanisms;

• Incorporation of external policies, procedures and institutional arrangements not

covered by the Kenyan law;

• Conducting monitoring and evaluation of the PAPs after resettlement;


• Developing a Budget for all RAP activities.

PROJECT JUSTIFICATION THROUGH PAPSCurrently, the road condition in the proposed route is poor compared to the requirements of

the ever increasing traffic. The Client has proposed to rehabilitate and expand the existing

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roads in effort to accommodate traffic and to ensure effectiveness of the project. The aim of

this project is to meet the government’s medium and long terms goals of improving road

infrastructure with the aim of improving access to all parts of Kenya.

To enable meet its objectives, the Client needs to acquire private land and the encroached

road reserve for the development of interchanges and access paths for pedestrians, two wheel

motorized and non-motirized vehicles. This will enable the enhancement of the existing

junction and at the same time improve the road safety in the project area. The proposed

projects objectives will lead to minimal resettlement and demolition of existing structures.

Although the project area has limited land on the road reserve (40m), this RAP report

recommends possible mitigation measures to minimize any acquisition of private land and

demolition, except for sections with unavoidable circumstances. The need for expropriation

of private land triggers the WB OP 4.12 guidelines which aim to ensure that people affected

with resettlement due to the development of a public project funded by the World Bank are

adequately compensated for their loss. The Client is aware of the need to implement the WB

OP as its requirements supplements the missing links in the Kenyan regulations. OP 4.12 also

aims to ensure that proposed projects are environmentally, economically and socially

sustainable.

Despite the fact that the proposed project’s objective is positive, it shall have impacts on the

PAPs at the interchanges, including pulling down of private structures, loss of income, and

restriction to access to socio-economic resources and services, among other impacts. The

community members in the project area were consulted on the proposed project and a

majority of them indicated they had no objection to the proposed project as long as

appropriate mitigation measures are put in place to minimize the negative impact likely to be

transferred to them.

The consulting team’s observation is that the stated mitigation measures are within the reach

of the project and can be considered for implementation, especially the mitigation measures.

LAND COMPENSATION AND WAY LEAVE ACQUISITION There are guidelines on way leave acquisition and land compensation which are outlined in

the way leave acquisition procedures and the Resettlement Policy Framework (RPF) for sub-

projects undertaken by the organization.

The objective of Way leave Acquisition procedure is to ensure that quality and binding way

leaves consents/approval are obtained/acquired effectively and correctly by following strict

laid down rules to ensure that the construction of the road is done to satisfactory levels and to

the highest standard compliant to statutory ISO 9001:2000

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GUIDING PRINCIPLES In order to ensure that the RAP report complies with international best practice as regards

resettlement, the principle implementing agent, Kenya National Highways Authority

(KeNHA) shall bind itself to the following guiding principles:

P RAction: To comply with the principle, the Client has to demonstrate that the proposed

resettlement is both necessary and viable, and that its scope and extent cannot be lessened.

The Client has to show that they aim to construct the proposed project so as to cause the least

possible displacement and/or disruption.

P GAction: Given its focus on resettlement, the primary concern is to take seriously the rights

and interests of the PAPs. For this to take place, their voices need to be made clear, via the

formation of a local level consultative forum. These structures have been co-ordinated at the

community level by the client’s personnel and the consulting team. The coordination was

done at each market centre through the divisional and location administrative leaders.

P EAction: To support the successful re-establishment of affected property, the following

activities have been undertaken prior to displacement.

• An inventory of landholdings and immovable/non-retrievable improvements

(buildings and structures) to determine fair and reasonable levels of compensation or

mitigation.

• A census detailing household composition and demography, and other relevant socio-

economic characteristics.

The asset inventories will be used to determine and negotiate entitlements, while the census

information is required to monitor business units reestablishment. The information obtained

from the inventories and census will be entered into a database to facilitate resettlement

planning, implementation and monitoring.

P AAction: The Client will guarantee the provision of any necessary compensation for people

whose property will be disturbed to make way for the proposed road expansion or any other

disturbances of livelihood associated with the project in proportion to their loss.

P AAction: Compensation will be paid for structures, land and trees that are disturbed according

to set rates derived from market value comparables.

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P R PAP

Action: Where practical the employment and sub-contracting opportunities that arise from the

project will be made available to the affected population.

P VAction: Members of vulnerable groups are often not able to make their voice heard

effectively, and account will be taken of this in the consultation and planning processes, as

well as in establishing grievance procedures. They are often physically weaker, and may need

special help in the relocation/disturbance phase. In particular, female and child headed

households may lose out to more powerful households when assets will be demolished to

make way for the proposed project. This will entail the Client ensuring that the pre-

resettlement database specifically identifies vulnerable social groups and makes provision for

them to be included in consultative forum. The Client must further ensure that they are given

the necessary protection to ensure that they receive equitable access to replacement resources.

In addition, the Client will make specific reference to vulnerable social groups being paid

particular attention in the monitoring process. Vulnerable groups will include those with

minimal assets, the illiterate, and the aged (those PAPs of more than 65 years).

P RAction: Experience across the world shows that unless resettlement is built in as an upfront

project cost, it tends to be under budgeted, that money gets whittled away from the

resettlement budget to ‘more pressing’ project needs, and that it tends to be seen as peripheral

to the overall project. The Client will ensure that compensation costs, as well as those

resettlement costs that fall within their scope of commitment, are built into the overall project

budget as up-front costs.

P AAction: In addition to internal monitoring that will be provided by the Client an independent

team comprising local administration and the locals will undertake monitoring of the

resettlement aspect of the project. Grievance procedures will be organized in such a way that

they are accessible to all affected parties, with particular concern for the situation of

vulnerable groupings. Monitoring will specifically take place via measurement against the

pre-resettlement database.

P W BAction: The World Bank’s operational policy 4.12 on involuntary resettlement will be

adhered to. It requires that involuntary resettlement be avoided where feasible, or minimized,

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exploring all viable alternative project designs. Where it is not feasible to avoid resettlement,

resettlement activities should be conceived and executed as sustainable development

programs, providing sufficient investment resources to enable the persons affected by the

project to share in project benefits. Displaced persons should be meaningfully consulted and

should have opportunities to participate in planning and implementing resettlement programs.

They should also be assisted in their efforts to 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 the project implementation, whichever is higher.

PUBLIC PARTICIPATION All projects developed within the community level warrant the participation of the

community members themselves to promote ownership and to enhance its sustainability. The

community was involved in the project on a continuous basis with the help of the local

administration consisting of DC’s DO’s, chiefs, property owners and opinion leaders in the

community. A major public census was done on 29th and 30th November 2010 at all market

centres/towns with local administration and community members. The meetings were held at

Mamboleo Interchange, Majengo, Mbale, Chavakali, Kakamega, Malava, Khayega,

Kaburengo Interchange, Webuye Junction interchange, Kamukuywa, Sikhendu and Kiminini.

The community members welcomed the project but stated that all project impacts should be

mitigated and maintained to the minimum possible. On issues of compensation they stated

that all affected people should be compensated for affected property before the actual project

commences.

LEGAL AND INSTITUTIONAL FRAMEWORK The Legal framework evaluates the available enactments and regulations that guide land

acquisition and compensation including mechanisms for conflict resolution and appeals.

These legal frameworks provide applicable legal and administrative procedures including

remedies available to displaced persons in the judicial process and the normal time frame for

such procedures and available alternative dispute resolution mechanisms that may be relevant

to the project

There are several enactments all governing land and transactions of land in the country. The

laws and regulations relates to agencies responsible for implementing resettlement activities

and guides on issues such as land, water and environment among others. The legal

frameworks which govern land acquisition for development of public property include the

following;

• Government Lands Act Cap 280 • Land Titles Act Cap 282 • Registration of Titles Act Cap 281 • Land (Group Representatives) Act Cap 287 • The Registration of Documents Act Cap 285 Laws of Kenya (R.D.A)

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• Trust Land Act Cap 291

• Registered Land Act Cap 300

• Land control Act Cap 302

• The Physical Planning Act Cap 286

• Agriculture Act Cap 318

• The Valuers Act Cap 532

• The Rating Act Cap 267

• Land Acquisition Act Cap 295

• Environmental Management Co-ordination Act, 1999

• The Local Government Act ;

• Land Acquisition Act Cap 288 -Trust land

• The Public Roads and Roads of Access Act Cap 399;

• The Arbitration Act (2000);

• The Wildlife Conservation and Management Act (1998);

• The Physical Planning Act (1999);

• The Way leave Act Cap 292

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CHAPTER 2: METHODOLOGY

DATA COLLECTION SCOPE The proposed project was screened based on the WB OP 4.12 criteria to determine whether

the project and its related activities are likely to lead to resettlement. The screening aimed to

identify the nature and diversity of potential impacts anticipated from the proposed project to

enable the consulting team develop measures to mitigate them. This involved preliminary

assessment on the need of land for the proposed project by conducting the following:

• Desktop study which involved review of previous study documents and analysis of

the proposed project maps; and

• Field surveys to establish the location of the proposed road as indicated on the project

maps and design drawings;

• Evaluate the availability of land;

The screening findings indicated that the proposed project will directly affect at least 1373

PAPs by way of compensation for the development of the road meaning that a project

specific RAP must be prepared to meet the needs of the affected persons. The consultant was

then engaged in the collection of primary data on the PAPs and a qualitative and quantitative

analysis of project assessment was made. The quantitative analysis conducted included:

• Conducting household census of identified PAPs;

• Conducting baseline socio-economic survey on the project area;

• Establishing number of land parcels affected at the Lands Registry; and

• Assets valuation using substitution, anticipation and replacement methods.

T

T• Consult with the Proponent (KeNHA) regarding the proposed project details, the site

planning and implementation plan;

• Desk review of available documentation on the project;

• Thorough field investigations along the proposed way-leaves using photography,

surveys, and discussions with people from the immediate neighborhood;

• A participatory rapid assessment method using data collection tools such as literature

review, questionnaires, observation, geographical positioning system device (GPS),

and in-depth interviews as well as public consultative meetings;

• Identify the households affected, assets (houses, kiosks) likely to be lost and/or,

damaged due to the project and also the extent of impact on community infrastructure

such as schools, churches, trees etc;

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• H PAP D ANGO CBO F O

• Evaluate the project setting and baseline conditions;

• Analysis of the potential impacts of the proposed project on the biophysical and socio

cultural/ economic environment;

• Formulate appropriate mitigation measures including evaluation of alternative routes,

development of an entitlement matrix, Community Involvement Programme (CIP),

Grievances Referral and Redress mechanism (GRRM), RAP implementation plan

and, budget, monitoring framework, and guidelines for capacity building in RAP

implementation;

• Report writing;

DATA COLLECTION MECHANISMS • Enumerating the affected business units;

• Identifying any vulnerable Project Affected Persons (PAPs);

• Conducting inventory of all assets to be affected or damaged;

• Valuating those assets at full replacement value and determine any supplementary

payments e.g. unit price lists and itemized breakdowns of compensation offers and

participation;

• Harmonizing institutional arrangements with the Kenyan law if any

• Internalizing monitoring arrangements;

• Drawing a timeline for the RAP;

• Preparing a Budget for all activities.

• The information obtained was used to develop an entitlement matrix aimed at

restoring livelihood of the project affected persons.

• Instituting valuation negotiations and devising grievance procedure mechanisms;

• Assessing the CLIENT guidelines on way leave acquisition and land compensation

which are outlined in the way leave acquisition procedures and the Resettlement

Policy Framework (RPF) for sub-projects undertaken by the organization with a view

to applying the same.

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CHAPTER 3: POLICY, LEGISLATION AND ADMINISTRATIVE FRAMEWORK

LEGAL LEGISLATIONS The Legal framework evaluates the available enactments and regulations that guides land

acquisition and compensation including mechanisms for conflict resolution and appeals. This

Legal Framework provides applicable legal and administrative procedures including remedies

available to displaced persons in the judicial process and the normal time frame for such

procedures and available alternative dispute resolution mechanisms that may be relevant to

the project.

There are several enactments all governing land and transactions of land in the country. The

laws and regulations relates to agencies responsible for implementing resettlement

activities and guides on issues such as land, land acquisition and environment among

others.

ADMINISTRATIVE FRAMEWORKSIt is for the benefit of both the Client and the PAPs to devise a grievance redress mechanism

through which complaints and disagreements can be resolved. The grievance framework

recommended for this RAP is built on already existing structures within the laws of the GoK

and affected community. The proponent is advised to develop organs involved in resettlement

such as Resettlement Steering Committee (RSC) at the District level, a PAP Committee (PC)

at the project level and Project Implementing Unit (PIU) at the organization level which will

include the proponent and relevant key stakeholders such as the National Environment

Management Authority (NEMA), Ministry of Lands and opinion leaders in project area. The

local Residents Development Committee (RDC) or Land Resolution Committee (LRC) where

they exists will be the first point of call for resolving grievances. If not satisfied, the

RDC/LRC will report the complaint to the PC consisting of the key stakeholders at the

project level for a resolution within a reasonable space of time. Thereafter, depending on the

aggrieved party, the PC can submit the complaint to the Resettlement Steering Committee

(RSC), which, if further disagreement arises, will seek counsel from the PIU and if this does

not solve the grievance, the interested PAP will be advised to seek legal advice through the

courts of law.

STATUTORY MECHANISM FOR LAND ACQUISITION The Kenyan Law recognizes three categories of land ownership in which basic or radical title

vests namely:

(i) Government-owned land,

(ii) Trust land and,

(iii) Private land.

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In Kenya, expropriation is provided for in the Constitution under Section 7 for private land

and sections 117 and 118 for unregistered Trust Land. Section 75(1) of the Constitution

provides for the Government to take possession of private land if it is deemed necessary in

the interest of town planning among other public interests. The constitution however only

provides general guidelines but detailed procedures for acquisition are elaborated under the

Land Acquisition Act in Chapter 295 for private land and Chapter 288 for unregistered Trust

Lands.

In general, land use rights can be withdrawn by the state in the public interest. However, the

state has the responsibility for paying fair compensation for any losses and improvements.

There is no specific resettlement policy and regulatory framework in Kenya. The land law

only specifies compensation payment for expropriated land, which is done in the public

interest. It is silent on compensation issues such as the principles, forms, eligibility, valuation,

adequacy, procedures, timing and responsibilities.

There is no legal mechanism for affected persons to appeal against compensation paid or

other resettlement measures. The only legal recourse available to affected persons is the

courts of the country. Fortunately, there are well-established local mechanisms for conflict

resolution concerning land among local communities consisting of land issues resolution

committee, area development committees or village elders.

In the absence of a comprehensive resettlement legal and policy mechanism in the country,

the requirements of WB OP 4.12 becomes the operational policy framework on all sub-

projects funded by the bank that leads to displacement.

According to the World Bank, affected people, refers to people who are directly affected

socially and economically by the Bank-assisted investment projects. In the preparation of

RAP for the bank funded project, the donor requires that the affected people should:

• Be meaningfully consulted and should have opportunities to participate in planning

and implementing resettlement programs.

• Be assisted in their efforts to improve their livelihoods and standards of living or at

least to restore them, in real terms, to pre-displacement levels or levels prevailing

prior to the beginning of project implementation, whichever is higher.

The study involved conduction of public participation in form of forums and administration

of pre-defined questionnaires at household level. The consultants elaborated the need of the

project and the associated impacts to the community members living within the project area.

The community members’ response indicated that the project is a good one but the negative

impacts of loss of structures and livelihood should be mitigated against by compensating

them.

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The consultants also proposed an entitlement matrix and property values to guide in the

calculation of the costs of restoring the livelihood of the PAP’s to the pre-displacement

levels.

WORLD BANK INVOLUNTARY RESETTLEMENT RELATED POLICIESThe main objectives of the World Bank Policy 4.12 include:-

• Avoiding or minimizing involuntary resettlement where feasible, exploring all viable

alternative project design; where it is not feasible to avoid resettlement, resettlement

activities should be conceived and executed as sustainable development programs,

providing sufficient investment resources to give the persons displaced by the project

the opportunity to share in project benefits.

• Displaced persons should be meaningfully consulted and have opportunities to

participate in planning and implementing resettlement programs.

• Those displaced persons should be assisted in their efforts to 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 beginning of project implementation, whichever

is higher. Specifically, the production systems of a community are safeguarded to the

extent that guarantees their livelihoods and that their skills base remain relevant

regardless of the resettlement site. The policy objectives are also designed to

minimize kinship group dislocation that might subject the affected persons to unfair

competition when mutual help is diminished or lost.

The project consultant’s met the objective of the WB by conducting public participation in

the project area; evaluating project alternatives to enable minimize involuntary resettlement

and developed an entitlement matrix to guide in calculation of resettlement and replacement

costs.

Land Acquisition Act Chapter This Act provides for the compulsory or otherwise acquisition of land from private ownership

for the benefit of the general public. The expropriation process provided by this Act is as

described in the steps below.

Step 1: Formal request by the benefiting authority e.g. a municipal council will be made to

the Commissioner of Lands. Any other public body or Government may request for

acquisition this way.

Step 2: The Commissioner will then forward the application to the Minister in charge of

lands. If the minister is convinced that the land is required for public purpose, the Minister

will write to the Commissioner to that effect, and directs the Commissioner to acquire the

land (Section 6(1).

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Step 3: The Commissioner Will then give “Notice of Intention” to acquire the land (section

6(2) in the “Kenya Gazette” side by side with the “Notice of Inquiry”. The public

announcements will be made announced widely in standard mass communication avenues

such as newspapers and on the radio.

The “Notice of Intention” must mention the public body or the public purpose for which

the land is to be acquired. The “Notice of Inquiry” must mention places and fixed dates

when persons interested in the subject land are to submit their claims to the

Commissioner of Lands or his appointee.

Step 4: “Valuation Officer” also known as “Collector of compensation” according to Section

9 of the Act inspects the said land and value it for compensation. After the inquiry the

Collector will issue an award depending on his own assessment and the representations

of interested parties as submitted at the inquiry (Section 10 and 11).

Step 5: The award is issued in the prescribed form indicating the amount of

compensation awarded while the statement form gives the landowners option of

acceptance or rejection of the award. If the landowner accepts the award, the collector will

issue a cheque in settlement together with a formal.

Step 6: “Notice of Taking Possession and Vesting” (section 19). The notice instructs the

landowner to take his/her title for amendment or cancellation. It is copied to the

Government Surveyor and the Land Registrar to make necessary changes to the

affected deed. On the other hand, if the owner rejects the award, the collector

deposits the money in court pending the former’s appeal. Compensation is based on open

market value.

Section 12 of Cap 295 allows for in-kind compensation as follows:- Notwithstanding

anything contained in the Government Lands Act, where the land is acquired for the

Government, the Commissioner may agree with the person whom he has determined

to be the proprietor of the land that person, instead of receiving an award, shall receive

a grant of land, not exceeding in value the amount of compensation which the

Commissioner considers would have been awarded, and upon the conclusion of the

agreement that person shall, subject to section 18, be deemed conclusively to have been

awarded and to have received all the compensation to which he is entitled in respect of

his interest. An agreement under subsection (1) shall be recorded in the award.

The study findings indicated that the Act is triggered as majority of the PAPs at household

and commercial level own the land they inhabit and conduct business on respectively which

they stated they acquired through inheritance and/or purchase and majority of them posses

legal documents indicating land ownership. Land occupied by some institutions and

businesses are leased or rented from the owners.

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Trust land Acquisition Act Chapter This Act guides the acquisition of land under the custodian of the councils and allows for the

expropriation of Trust Land on condition that;-

• The development and utilization of the property will promote public benefit among

other things.

• The necessity for expropriation is great enough to justify any hardship caused to

any persons

• Law prompts for payment of full compensation

The procedures of land acquisition under this Act are as described in the steps below;

Step 1: The process starts with a proposal at a Full Council Meeting where proposed

acquisition is deliberated and consent given vide a Council Minute.

Step 2: The “District Commissioner” in charge of the affected area will then proceed to

ascertain interests, determine areas and assess compensation for the land after which he is

to issue an award.

Step 3: Provision for compensation; section 8.(1) of Cap 288 allows for compensation as

follows:- Where land is set apart under section 7 of this Act, full compensation shall be

promptly paid by the Government to any resident of the area of land set apart who:-

• under African customary law for the time being in force and applicable to the

land has any right to occupy any part thereof; or

• Is otherwise than in common with all other residents of the land, in some other

way prejudicially affected by the setting apart.

• A notice of setting apart published under section 7 of this Act shall also be

published by displaying a copy at the District Commissioner's office and at some

other public or conspicuous place in the area concerned.

Under section 9( 1), a person who claims to be entitled to compensation under section

8 of Cap 288 shall apply therefore to the District Commissioner once satisfied after

consultation shall award the applicant a sum of compensation in accordance with

subsection (3) of this section; and if he is not so satisfied the District Commissioner

shall reject the application. The compensation to be awarded shall be assessed by the

District Commissioner after consultation with the Divisional Board, and shall be

assessed in respect of the loss of the right of occupation referred to in paragraph (a), or

in respect of the applicant having been otherwise prejudicially affected as referred to in

paragraph (b), of section 8 (1) of the Act. The District Commissioner shall give notice

in writing to the applicant of the award or of the rejection of the application as the case may

be.

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Way leaves act CapWay Leaves Act (Cap. 292) Section 3 of the Act states that the Government may carry any

works through, over or under any land whatsoever provided it shall not interfere with any

existing building or structures of an ongoing activity. Notice, however, will be given one

month before carrying out any such works (section 4) with full description of the intended

works and targeted place for inspection. Any damages caused by the works would then be

compensated to the owner as per the section. Finally section 8 states that any person without

consent causes any building to be newly erected on a way leave, or cause hindrance along the

way leave shall be guilty of an offence and any alterations will be done at his/her costs.

In accordance with the Act (section 4), notice will be given before carrying out works with

full description of the intended works and targeted place for inspection. Any damages caused

by the works would then be compensated to the owner as per this section.

Registration of Titles Act Chapter The Registration of Titles Act is an act of Parliament that provides for the transfer of land by

registration of titles. When the Commissioner of land issues a letter of allotment to any

person in respect of any land, one of the laws under which the title to that land is issued is the

Registration of Titles Act. A freehold title issued under this act confers absolute control upon

individuals or other legal entities upon a given parcel of land. It also confers upon them

power to determine the use to which such land can be put. A leasehold title contains

conditions such as the term of the lease, commencement date thereof, the user of the land etc.

Private ownership of land is embodied in this Act.

This Act is triggered as after acquisition the PAPs with title deeds will have to amend them or

surrender them if the entire land is acquired.

The Land Adjudication Act Chapter Laws of Kenya This Act provides for ascertainment of interests prior to land registrations under the

Registered Land Act.

The Proponent has undertaken a survey and commissioned this Resettlement Action Plan

(RAP) study which complies with the provisions of the Act. Public consultations were also

undertaken extensively in the affected project area.

Valuation and Related Legal Issues The valuation practice in Kenya is governed by the Valuers Act Cap 532, which provides for

a Valuers Registration Board that regulates the activities and conduct of registered valuers.

Valuers in Kenya are registered upon application to the Board and are required to be full

members of the Institution of Surveyors of Kenya (ISK). The Act governs the formation and

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composition of valuation practices including the qualification of partners and directors in

charge of valuation. The Board also deals with discipline and complaints in respect to

valuation practice. Other statutes that govern valuation are the Government Lands Act Cap

280 that regulates the valuation for land rent while valuation for rating is governed by the

Rating Act Cap 267. Land Acquisition Act Cap 295 governs valuations for compulsory

acquisition purposes.

This Act is triggered as the valuer and financial analyst of the consulting team have applied

the requirements of these laws and other market indicators to come up with the RAP budget

and the market rate or replacement cost of compensating the PAP.

Physical Planning Act The Act provides for the preparation and implementation of physical development plans and

for related purposes. It gives provisions for the development of local physical development

plan for guiding and coordinating development of infrastructure facilities and services within

the area of authority of County, municipal and town council and for specific control of the

use and development of land.

The site layout plan appended to this report shows the route of the entrie project route. The

Proponent shall secure all mandatory approvals and permits as required by the law.

DISPUTE RESOLUTION AND ARBITRATION OF DISPUTES

Kenya’s Dispute Resolution Centre (DRC) is an independent, not-for-profit organization that

promotes the prompt, effective and economic resolution of disputes through arbitration,

predominantly mediation, expert determination and early neutral evaluation. This is a

resource that could be called upon by the stakeholders to arbitrate. They would be of

particular use should disputes around the compensation and resettlement process arise.

In addition, there are a series of customary avenues that have been set up to deal with dispute

resolution and they will be employed as the “court of first appeal”, where relevant.

About the resettlement and compensation process as they arise and, if necessary, for

corrective action to be taken expeditiously. Such mechanisms are fundamental to achieving

transparency in the resettlement process.

It is recommended that all disputes arising from the project should be referred to the PC at the

project level and then if necessary, the RSC or the PIU will be asked to provide

recommendations as to how it is to be addressed. If deemed necessary by the PAP committee

the case should be re-investigated and, depending on the nature of the issue, referred to the

National Environmental Tribunal or Public Complaints.

The procedure for Grievances Settlement should be;

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• Grievances is filed by the person affected by the project to the chairperson of PC of

the project area, who should immediately report the same to the PIU through a

selected representative who should be a principal member of the PIU for a resolution.

• If no understanding or amicable solution can be reached, or if the affected person

does not receive a response from the representative within a reasonable space of time,

then the chairperson shall seek redress from the RSC who should respond within a

given and stipulated time framework after receipt of the complaint.

• If the affected person is not satisfied with the decision of the RSC, he/she, as a last

resort, may submit the complaint to a court of law or the National Environmental

Tribunal or Public Complaints.

All complaints received in writing (or written or received verbally) should be documented.

WORLD BANK INVOLUNTARY RESETTLEMENT OP It is a requirement of the World Bank that any bank assisted project/program must

comply with the provisions of OP 4.12 on involuntary resettlement for impacts

associated with land acquisition and displacement. As a pre-requisite, either a

Resettlement Action Plan (RAP) where impacts are known or a Resettlement Policy

Framework (RPF) where multiple sub-projects are involved is needed in advance of the

project implementation.

The RAP document is based on the Best Practices and criteria of involuntary resettlement

provided in the OP 4.12 The road rehabilitation project will cause the displacement of some

business people leading loss of income etc. The main objective of this RAP is to provide

guidelines for compensating the PAP so as to ensure that their livelihoods are improved or

are restored as much as possible to the pre-impact level.

Despite the Kenyan Law which recognizes legal land owners only, the WB OP 4.12 guides in

compensating those who are not legal land owners but their livelihoods is affected in one or

another by the project

Gaps between GoK Laws WB Policies on Land acquisition and Resettlement There are similarities between key precepts of the World Bank Policy 4.12 and Kenyan

legislation. The legislation recognizes the imperative need to offer compensation to those

whose land is affected by government activities, such as compulsory acquisition where such

land is envisaged to be used for the public good. Despite that, the current Kenyan legislation

is silent on resettlement. The scope of coverage of Kenyan legislation and the World Bank

Policy 4.12 differs as well. The World Bank Safeguards favour a policy of avoidance or

minimization of involuntary resettlement and recommends the design of appropriate

mitigation provision in case avoidance or minimization is not possible.

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Whereas both recognize customary tenure as equivalent to legal title, the World Bank Policy

4.12 extends beyond this principle and recognizes informal occupancy as a form of

customary tenure so long as such informal occupancy can be established prior to the project

cut-off date. Therefore, in accordance with the legal agreement of the credit for the

development of the project, the preparation of this RAP has been executed in line with the

policies and guidelines as set out in the World Bank Policy 4.12 which emphasizes that the

affected persons be provided with compensation at replacement cost and supported

during the transitional period to improve or at least restore their living standards to

pre-displacement levels. The Kenya system recognizes only title holders as bonafide

property owners while under WB OP 4.12, lack of legal title is no bar in extending

assistance and support to those affected by the project development.

To abide by the requirements of the WB OP 4.12 the proponent the Client must take the

following into consideration during the resettlement and compensation of the PAPs:

• Depending on tenure category, PAPs will be provided transition assistance (such

as moving allowances) during relocation; and be offered support after displacement,

for a transition period, based on a reasonable estimate of the time likely to be

needed to restore their livelihood and standards of living.

• PAPs to be provided with development assistance in addition to compensation

measures such as land preparation, credit facilities, training, or job opportunities.

• In cases where in-kind replacement is not the preferred option of the PAPs,

then the cash compensation will be based on the replacement cost

The PAP without legal land documents should also be given considerations which should

include the following:

• Notice to vacate land prior to development

• Right to harvest seasonal crops in case the affected land is agricultural

• Tenants are provided with cash compensation in lieu of unexpired lease if agricultural

land is acquired and in case of loss of structures on residential/commercial or

industrial land, the cash compensation must be provided for a given time say within a

period of 12 months

• Squatters who lose residential/commercial or industrial land should be provided a

transitional allowance equivalent to three (3) months’ income

• In case of partial loss of structure the PAPs should be given cash compensation at

replacement cost for affected portion based on Ministry of Works (MOW)

depreciation rate; repair cost for unaffected structure at 25% of compensation and

right to salvage materials;

• In case the structure is completely affected or the remaining part is non-viable,

tenants should be given subsistence allowance for three month Lease equivalent to

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rental value, a onetime shifting allowance of Kshs. 5,000 and right to salvage

materials;

• For squatters, in case the structure is completely affected or the remaining part is non-

viable they should be compensated at replacement cost at market rates based on the

MOW guidelines and regulation on wages Cap 226 on the Laws of Kenya .

• In case of loss of income in form of employment or rental income PAPs should be

provided a subsistence allowance equivalent to 3 months minimum wages for

unskilled agriculture workers as per the labour Laws of Kenya.

� In case of loss of income the business owners should be compensated according to

Local Labour loss.

� In case of loss of standing trees owners should be compensated with cash

compensation based on the market value. In case of loss of community property

resources the resource should be provided afresh or relocate to new site.

For unidentified impacts, mitigation measures will be proposed based on the Best

Practices or Guiding Principle of involuntary resettlement and other regulating laws.

MECHANISM FOR RESOLUTION OF GAPS BETWEEN THE GOK AND OP ON RESETTLEMENT

The resettlement process of PAPs must recognize both provisions of the GoK on land

acquisition as stated in the constitution and its legal provisions and the policy

provisions of the World Bank (as provided for in OP 4.12). Where there are gaps

between the Bank and GoK requirements, Bank policies shall be applied. With the aim of

harmonizing the GoK legal requirements and the WB requirements the following should be

taken into consideration:

i. Each proposed investment should be screened at feasibility study stage to

determine the impacts associated with the land acquisition and resettlement

impacts and accordingly determine the level of RAP that need to be prepared in

line with the provisions of OP 4.12.

ii. All sub-projects impacting on the community resulting to loss of livelihoods or

displacement should undergo a full Rap study.

Minimization of Displacement

In line with the OP 4.12, displacement arising from development must be minimized as

much as possible by redesigning the project (facility relocation, rerouting) so as to avoid

any impacts on dwellings and any resultant displacement/relocation.

The same applies to structures used for commercial activities and other businesses.

Wherever the impact on the land holding of one particular household is such that this

business units may not be sustainable in the long term, even if there is no need to

physically displace this household, the sub-project shall be redesigned (facility

relocation, rerouting) to avoid any such impact.

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The proposed project will have physical impact on agricultural land, dwellings, commercial

structures and institutions. The impacts on these structures will be hard to forego or minimize

as most of the properties are located on the earmarked way leave of the proposed project.

Technically, it is recommended that the proposed pipe line is laid on a relatively straight line

to minimize any pressure losses to enable the water flow by gravity to the end users. The

above can be achieved by;

• Demonstrating to PAPs that the project is both necessary and viable.

• Establishing that the scope and extend of the proposed project cannot be lessened.

• Checking and ensuring that the proposed project design can cause the least possible

displacement or/disturbance

• Construction being carried out to satisfactory levels and comply to ISO 9001.2000

Livelihood Restoration The main objective of the RAP is to develop programmes that aim to improve the livelihoods

of PAPs or restore them to the pre-displacement levels. Where impact on land use is such that

sustainability of livelihoods may be affected, preference will be given to land-for-land

compensation rather than cash payouts. This applies to people who are not necessarily

physically displaced but who are affected by a land loss that affects their sustainability.

The following principles should be followed for payment of compensation for lost assets -

• Compensation shall be paid prior to acquisition or displacement;

• Compensation will be at replacement cost;

• Compensation for structures shall include: the full cost of materials and labour

required for reconstructing a building of similar surface and standing. In other

words, the affected person must be able to have their structure rebuilt in a

different location using the compensation paid for the old building. Depreciation

will not be taken into account while calculating the cost of affected structures.

• The Compensation package will also include cost of moving, such as transport

costs as well as any associated land titling or transfer fees.

Other factors to be considered during livelihood restoration are:

• Development of capacity building programmes to train PAPs on self –employment

skills and enterprise development

• Development of CRS programmes for provision of assistance to the entire community

in areas requiring development such as rehabilitation of roads, borehole drilling,

development or rehabilitation of schools etc.

• Compensate all the PAPs adequately for properties and income lost

• Check and ensure that resettlement was built in as an upfront project cost to avoid

inadequate compensation.

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Assistance to Vulnerable GroupsThere is need for provision of additional support to the vulnerable groups to facilitate

faster adjustment in the new environment and impacts associated with the project.

Vulnerable households may have different land needs from most households, or needs

unrelated to the amount of land available to them. Vulnerable PAPs in the project area

included child headed households and the elderly people. These special groups will be given

direct support by acquisition of land and developments of new structures to enable them have

a smooth transition compared to the others who will be compensated directly inform of cash.

It is therefore important to;

• Ensure that vulnerable social groups are compensated

• Resettlement of the vulnerable social groups is done to their satisfaction

• The pre-settlement database must properly identify vulnerable social groups so that

they are fully compensated.

Resettlement Steering Committee Unit RSCA RSC chaired by the area District Commissioner (DC) should be formed and it should draw

membership from the proponent (CLIENT), Social Welfare Department, Enforcement

Department, the Ministry of Lands and Settlement., Survey Department, Chair of the

Finance Committee, Chair of the Welfare Committee, Representative of PAPs, Local Chief

and Opinion Leaders including Religious Leaders, Women and Youth leaders.

Each RSC will establish a secretariat within the CLIENT office and will be provided

with secretarial staff by the organization. For effective implementation of the project, the

CLIENT should establish a Project Implementing Unit ( PIU) with core staff that includes

the Chief Executive Officer (CEO), Treasurer, Engineer, Planner, Internal Auditor,

Procurement Officer, Environment Officer, Social Development Officer (Community

Liaison Officer) , Surveyor, ICT officer (Database Officer), Human Resources Officer, Legal

Advisor, Way-Leave Officer, Land Valuer and a Monitoring and Evaluation officer. The

PIU shall be categorized as office based or field based officers to reduce number of officers

in the field and thus RAP implementation cost.

The RSC and PIU will be responsible for the following:

• O RAP• O PAP C PC• E

• A

• E

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• P• E PAP

• ERAP

• A RAP

The RSC and PIU will also be responsible for identification of alternative sites, selection

of resettlement site(s), site preparation and relocation with the following core functions:

• Development of institutional and technical arrangements for identifying and

preparing relocation sites for which a combination of productive potential,

location advantages and other factors, should be at least comparable to ancillary

resources.

• Development of procedures for physical relocation including timetable for site

preparation and land title transfer and description of resettlements sites.

• Development of measures to prevent the influx of ineligible person (encroachers and

squatters) into the selected sites such as the identification and recording of

affected people at the project identification stages.

• Establishment of legal arrangements for regularizing tenure and transferring titles to

resettled persons.

• Conduction of environmental and social impact assessment on resettlement site to

evaluate the possible environmental impacts on the proposed resettlement and develop

mitigation measures to enable reduction of the impacts. Reference should be made to

the EMCA and Environmental Impact and Audit Guidelines of NEMA.

PAP Committee PCEach of the three sections (Lots) will have committees under the guidance and coordination

of PIU. The formation of the PAP committee and the other committees namely the PIU and

RSC which will act as a voice to PAPs. The formation of relevant committees started after

public consultation meetings and final members of the committees shall be confirmed before

the onset of the proposed project. The committee shall comprise of the following:

• N E M A NEMA• L L A• V• S P R PAP

• L• D V I V• S

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• T• D L A S O• D S D O• P S C• S E F

The PC shall have a Chairperson and a Secretary appointed or elected by PAPs. The

chairperson ought to be from the local area. The PC will be concerned with the following:

• P A IT

• C I

IRAP

• M E M E I

• L I RAP • E T C I

TPAP

Implementing Agent Implementation of the RAP requires the services of qualified experts. Upon approval of the

RAP, CLIENT should recruit a qualified professional to undertake the implementation

exercise. The duties of the agent will include, but not be limited to, liaising with the civil

works contractor, the PAPs and other key stakeholders. The implementing agent will be

expected to:

• Deal with complex issues that will emerge during the implementation process;

• Be present throughout the RAP implementation process;

• Be skilled in managing community expectations

• Be experienced with Kenyan social issues;

• Have budgeting skills;

• Be punctual in meeting deadlines; and

• Possess project management skills for development as well as construction projects.

The RAP Implementing Agent could also form part of the Design and Supervision team and

the scope of activities he shall conduct will include the following:

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• Awareness Creation:- The implementing agent will, in consultation with the local

administration and RSC , sensitize the PAPs on various aspects of RAP activities

from project inception to completion.

• Conduct Head Counts of PAPs;

• Identify resettlement area (s) and prepare layout plans;

• Demarcate, survey and number plots;

• Allocate plots to the PAPs;

• Monitoring the relocation of PAPs to the new site;

• Promotion or sensitization on resettlement;

• Undertaking technical supervision of new structures to be built (if any);

• Ensure that the PAPs are resettled according to RAP Guidelines;

• Facilitate full community participation in the planning and implementation of the

RAP;

• Promote linkages between the PAPs and NGOs in respect of income generation

activities; and

• Facilitate for provision of security of land tenure.

• Cultural and Ethnic Set Up

• Land Tenure

• Economic and Employment Opportunities

CHAPTER 4: FINDINGS AND POTENTIAL IMPACTS

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FIELD FINDINGS T K K W K R P

N W R V P T

D

D

M

T

T RAP

T

ELIGIBILITY OF AFFECTED POPULATIONS T P

PAP

T PAP

• L

• O

• T

• T

• T

DETAILS OF MAJOR AREAS OF IMPACT ROAD INTERCHANGE

T K K W

K T E

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T

T

T S

N I L S PS

TS

1 A1/C34 (Mamboleo) 2 acres 5 24

2 A1/A104 (Kaburengo) 2 acres 4 1

3 A1/B2 (Webuye) 2 acres 20 04 A1/C39 (Kitale) 2 acres 0 1

Total 8 acres 29 26

T

PAP O

T

T T PAP

Description Total Structures

Total Units

Rate for PAPs PAPs

Permanent (Total = 29) Commercial (70%) 20 3 3 180Residential (30%) 9 2 5 90

Temporary (Total = 26) Commercial (70%) 18 3 3 32Residential (30%) 8 2 5 80

Total PAPs 382

T M

T

K I A A

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T W K

T

T K J

G I

T

MARKET CENTRES ALONG THE PROPOSED ROAD AND ROAD STRETCHES

K K L

K W K

T

R

T T PAP

Lot 1 (Kisumu -Kakamega)

Total structures

Total units PAPs Rate/Unit PAPs

Temporary (Total = 40) 100%

40

40 3 120

Lot 2 (Kakamega-Webuye)

Temporary (Total = 86) 100% 86 86 3 258

Lot 3 (Webuye-Kitale)

Temporary (Total = 377 ) 100% 377 377 3 1131

Total PAPs 1509 4 Interchanges ( Lot 1, Lot 2 & Lot 3) Total PAPS 382

Grand Total PAPs 1891

PROJECT AFFECTED PERSONS PAPST PAP

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T

T PAP

K K L

K W W K

T

T PAP

VALUATION AND COMPENSATION OF LOSSES LAND LOSSES

T

T

T

A

BUILDINGS M

BUSINESS PREMISES A

T

OPEN AIR MARKETS O

T

V

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T

I

RESETTLEMENT MEASURES R I T

•

•

A

• S

• T

• D

COMMUNITY PARTICIPATION C T

D N

T

• L

• B

• B

• T

• O

• A

• L

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T

T

IDENTIFIED PROJECT IMPACTS T

T

POSITIVE IMPACTS OF THE PROJECT • I

• I

• R

• I

• O

NEGATIVE IMPACTS L D

R

B

PAP T

L V

T

T

L

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S I

T

D

I

T

E

E I

T

I

E C

S

D

A

MITIGATION MEASURES P I R

P A S

R L

D I

M L

M M T

P I N F A

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P A HB

E R HD DM MM M A

CDPQCP

P I DP A RR ID LM HM M R

P I C

P A R E

E R H

D L

M MM M P

P I S E C I LP A E DR CD LM HM M P

NP I EP A ERD LM MM M C

MPE

P I S IP A DR CD SM MM M RP I L

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P A DR HD DM MM M RS MP I D IP A C IR LD IM HM M R

COMMUNITY ENGAGEMENT REQUIREMENTS A

T

T

RAP

T P

S

T RAP T

T

A

T

OP

B A I

T

K NHA

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PAP

T

K NHA

W

C

A

INFORMATION EXCHANGE T

PAP

T PAP

D

PAP

T RAP

T

RAP

NOMINATION OF PAPS REPRESENTATIVES T RAP D

PAP A

D C ADC PAP RAP

T PC RSC

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T ADC

PAP RSC

The consultants explained to the community members the details of the proposed project and areas. The public forum attendants were then asked to air their concerns and expectations regarding the project. Generally, many had heard about the project and were anxious about it, but their main concern was how they will be compensated for their lost property and how the project will be maintained sustainably to avoid previousnegative experiences.

ALTERNATIVE DESIGN TO MINIMIZE RESETTLEMENT T A

I

E

LIVELIHOOD RESTORATION I

L

PAP

T

• L

A

• P

C

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• T PAH PAP

T

T PAH

T PAH PAP

• T PAH PAP

T

T

• T PAH

PAP T

• L PAH PAP

T

o D

o H PAP

o A PAP

o H

• T RAP

T

RAP

• C A

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• I

S

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CHAPTER 5: CONFLICTS RESOLUTIONS, REDDRESS AND COMPENSATION PROCEDURES

INTRODUCTION I C PAP

T RAP

GRRM

T

GRRM

S

T

I

A GRRM

PAP

T

GRRM

T RAP

F L

D C LDC A D C ADC L D

C LDC I

R S C RSC PAP C

I

PAP

R S C GRRM T RSC

R A P

M

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RSC RAP

I

T PAP

T

PAP C M T

T

CONFLICTS ARISING Land Resettlement Conflicts

S

T

H

K K

T

T

C

Socio Cultural Conflicts T K K W K

T

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GRIEVANCES REDRESS MECHANISMS G

S

I PC

RSC PIU

I PAP

N E T P C A

T G S

G PC

PIU

PIU

I

RSC

I RSC

N E T P

C

A

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Compensation Procedures T PC PIU RSC

I A IA T PAP

T PC

T

PC C O

Compensation and Relocation Times T PAP

T

Legal Action

Grievances Resolved

Grievances Resolved

PC/ PIU hears grievances and Rules (PAP committees have 2 weeks from submission to

respond

Affected Party declares a

grievance

RSC, Land Compensation Tribunal, Public compliant Committee, Resettlement steering

committee etc.

No Further Action

No Further Action

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Integration with host communities

T RAP

T RAP

T

T

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CHAPTER 6: RESETTLEMENT, COMPENSATION ACTION PLAN & SCHEDULE INTRODUCTION B

PAP

I N

PAP D

T

T RAP

• P RAP

• I

• T

RAP

• T RAP

W B PAP

• I

IMPLEMENTATION PROCESS FOR THE RAP • T RAP

PAP

• T RAP

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• T

RAP

• I RAP W

B PAP T

A

PAP

• I

• T RSC RAP

CUT OFF DATE AND ELIGIBILITY NOTICE T

T C

No./S Cut-Off-Date Affected Area 1. 25/1/2011 Mamboleo (proposed interchanger site) 2. 25/1/2011 Kiboswa market 3. 25/1/2011 Gambogi 4. 25/1/2011 Mbale Market 5. 26/1/2011 Majengo market 6. 26/1/2011 Chavakali 7. 26/1/2011 Khayega market 8. 26/1/2011 Kakamega 9. 26/1/2011 Lubao 10. 26/1/2011 Kakunga 11. 26/1/2011 Butali/Matete 12. 26/1/2011 Malava 13. 26/1/2011 Kaburengo (proposed interchanger site) 14. 27/1/2011 Webuye (proposed interchanger site) 15. 27/1/2011 Lugulu 16. 27/1/2011 Toll (Kiminini) 17. 27/1/2011 Misikhu 18. 27/1/2011 Shikhendu 19. 27/1/2011 Kamukuyua 20. 28/1/2011 Kitale (proposed interchanger site)

T PAP

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T PAP

T

C

T

RAP D

ENTITLEMENT MATRIX B

PAP

T

I

Table 6.4 (a): the types of losses arising from land acquisition

Category Types of Loss

Land

• Agricultural land • House plot (owned or occupied) • Business premises (owned or occupied) • Access to forestland • Traditional use-rights • Community or pasture land • Access to fishponds and fishing places

Structures

• House or living quarters • Other physical structures • Structure used in commercial/industrial activity • Displacement from rented or occupied commercial premises

Income and livelihood

• Income from standing crops • Income from rent or sharecropping • Income from wage earnings • Access to work opportunities • Income from affected business • Income from tree or perennial crops • Income from forest products • Income from fishponds and fishing places • Income from grazing land • Subsistence from any of these sources

Environment-related • Losses due to environmental impacts that might result from

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land acquisition or from project itself

Table 6.4 (b): Types of Losses Eligible for Compensation in Kisumu-Kitale Road Project

Type of Loss Definition of Entitled Person (EP) Loss of agricultural land Owner(s) of plot as per land record at cut-off date

Loss of homestead land Owner of a homestead plot as recorded at cut-off date

Loss of living quarters and other physical structures

Legal owner of structure/tenants occupying the structures at cut off date and tenants to be provided withmiving allowance and any improvemenst to the land they have rented from the owner.

Loss of economically valuable perennial crops

Owner of a plot as per record at cut-off date

Loss of occupied homestead (illegal or with permission of owner) land

Households living on land as squatters

Loss of tenant contract for farming or pasture

Farmers leasing or sharecropping on land acquired for project

Loss of wage income Persons living in affected areas and engaged in wage labor in agri/non-agriculture sectors and whose means of livelihood is affected

Loss of commercial plots Owner of the commercial plot at cut-off date Loss of structure used in commercial/industrial activity

Legal owner of structure

Displacement from rented, occupied or commercial premise

Business persons/artisans occupying the premise at cut-off date

Loss of tree crops or standing crops Owner(s) of plot as recorded at cut-off date Persons who have already parted with properties and relocated elsewhere.

Persons falling under categories mentioned above

Adverse impacts on host population due to development of resettlement sites.

No individual entitlement; investment in host communities

MATRIX OF RESETTLEMENT ACTION PLAN AND SCHEDULE A RAP

• RIC PIU

• PC

• PC RAP T K NHA RAP

• K NHA

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• T

K NHA

• T

• M

T I S

IMPLEMENTATION PERIOD IN MONTHS

ACTIVITY

F P

I U

PIU

H

PAP

F PAP

PC

H

F

C

PAP

F

C PAP

I

L

C

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CHAPTER 7: ENVIRONMENTAL MANAGEMENT PLAN FOR POTENTIAL NEGATIVE IMPACTS

INTRODUCTION A E M P

A

T

T E M P EMP K K W

K T

T EMP

T EMP

PAP

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ENVIRONMENTALMANAGEMENT PLANMATRIXT E M P EMP P K K K P

E I M M R A M T P EC

O P CK NHA

R D

P P AA

CK NHA

R D

C H C P D

D DMC

C K NHA R D

E A CK NHA

P D

A

C

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CHAPTER 8: MONITORING & EVALUATION MATRIX AFTER RESETTLEMENT

RAP MONITORING FRAMEWORK M E M E

PAP

RAP

RAP

T

EMP T

T RAP

T

RSC PIU PC

RAP IA

A

RAP T

RAP T RAP

T

PAP

A

• I RAP

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• O

• P R S C

• O PAP

PAP

• I PAP

RAP PAP

T

• A RAP T

R S C

PAP

• E PAP

• RAP

PAP

• C PAP

• T RAP

PIU E

PIU RSC PC

PIU RAP

T PAP

K NHA

P

RAP T

RSC

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M EMATRIX FOR RESETTLEMENTT RAP RAP T

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I I D V D S W R

A AK NHA

A K NHA

AA

G

K NHARSC

K NHA

N N

K NHA

NNN

N

G

K NHARSC

K NHA

N N NC

G

K NHARSC

K NHA

N PAP N PAP N PAP

N PAP

N PAP

QPAP

N

G

K NHARSC

K NHA

C C AC

G

K NHARSC

K NHA

G G

PAP

CRR

G

K NHARSC

K NHA

N M TN

N

G

K NHARSC

K NHA

N C N G K NHA

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INTERNAL MONITORING I PC RSC

T

I PIU

T

• T

GOK

M R

• T RAP

• T RAP P

RAP T

• E T

• P PAP

RAP

• P

RAP

• R

• R

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EXTERNAL MONITORING AND EVALUATION T C IMU

T IMU

RAP T PIU

PAP

M PIU

• R

RAP

• A

• A

• D

POST EVALUATION COMPLETION AUDITI W B

PIU

W

T

• A RAP

• V PAP

• A PAP

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CHAPTER 9: RAP BUDGET

INTRODUCTION T RAP PC

RSC I PAP

T

PAP

T

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MATRIX OF ACTIVITIES AND COST IMPLICATIONBUDGET BASED ON REDUCED ROADWIDTH TO M

Item Description Unit Qty Rate(kshs)

TotalCompensationCost (kshs)

Land Compensation for theacquired land (Increased road reserves andinterchange points )

Acres 8 500,000 4,000,000

Commercialstructures

Compensation for destruction of permanent, semi-permanentstructures

No. 62 500,000 31,000,000

Businesstenants

Compensation for affected businessesdue to destruction of thestructureswithin 3 months

No. 186 50,000 9,300,000

Landlords Compensation to landlords for lossof monthly income from tenantswithin 12 months

No 62 60,000 3,720,000

Employees Compensation to employeeswho lost jobsdue to destruction ofcommercial structures for 3 months

No. 186 60,000 11,160,000

Resettlementexpenses

Compensation for transport and resettlement expensesandallowances for affected units

No. 418 5,000 2,090,000

Trees Compensation for treescut down No. 400 500 200,000

Cost micro financing theaffected populations Lump sum 1 2,000,000 2,000,000

Cost of resettlement preparatory forumsand awareness to theaffected

Lump sum 1 5,000,000 5,000,000

Cost of trainings on enterprise development and job creation Lump sum 1 5,000,000 5,000,000

Capacitybuilding forskilldevelopment

Cost of trainings on community project participation and sustainablemanagement

Lump sum 1 4,000,000 4,000,000

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Cost of trainings on empowerment of PAPs Lump sum 1 4,000,000 4,000,000

Cost of stakeholdersallowances Lump sum 1 3,000,000 3,000,000

Salaries for implementing agent Months 3 1,000,000 3,000,000

Cost of monitoring and evaluation of the process Personnel 3 600,000 1,800,000

Professionalservices

Cost of end of project audit Lump sum 1 1,000,000 1,000,000

Roadreconstruction

Compensation to Kenya Power and Lighting Company and Ministryof water and Irrigation for relocation of power linesand water supplylines

Lump sum 1 5,000,000 5,000,000

Sub-total 95,270,000

Add 10%inflation costs

Cost of currency changes 1 9,527,000

Addunmeasureditemsat 10%

Cost of expenses which is unforeseen in this report 1 9,527,000

GRANDTOTAL

114,324,000

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CHAPTER 10: CONCLUSIONS AND RECOMMENDATIONS CONCLUSIONS

• T

PAP

• T

PAP

• D

• M

RECOMMENDATIONS I

• T W

• T

• W

• O L

R

• C

• T

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REFERENCES R D D O O P

T R F K NHA

T W B S P

K G A E M C

A N G P N

K G S A L P A C G P

N

K G S A L A A C G P

K G S A P P A G

N

K G A T L A A C

N

K E I A A

R G N

K G A T L A A C C T

N

K G A T P R R A A C

N

K G A T A A

N

K G A T W C M A

G N

K G A T W A N

K G A T E S L A C

N

K G A T W A C

N

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For confidentiality, PAPS CENSUS LIST for Lot 1, Lot 2, Lot 3 and Interchanges can be accessed in the project files.

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