[2012] KEHC 2056 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

Petition 36 of 2011

IN THE MATTER OF SECTIONS 10 (2) AND 70 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE WATER ACT OF 2002

AND

IN THE MATTER OF NAIVASHA BASIN WATER ALLOCATION PLAN 2011-2014

BETWEEN

LAKE NAIVASHA FRIENDS OF THE ENVIRONMENT..................................... PETITIONER

AND

THE HONOURABLE ATTORNEY GENERAL……….....................……… 1ST RESPONDENT

THE MINISTER, MINISTRY OF WATER AND IRRIGATION …………… 2ND RESPONDENT

THE WATER RESOURCES MANAGEMENT AUTHORITY .…………… 3RD RESPONDENT

JUDGMENT

The petition dated 1/11/2011, was filed by Lake Naivasha Friends of the Environmentagainst the Hon. the Attorney General, The Minister for Water and Irrigation and The Water Resources Management Authority (1st to 3rd Respondents respectively). The petitioner seeks the following orders:

a)A declaration that the petitioner’s right to be heard as protected by article 10 (2) (a) and (b) of the Constitution has been contravened and is likely to be contravened by the implementation of the Naivasha Basin Water Allocation Plan 2011-2014;

b)A declaration that the Naivasha Basin Water Allocation Plan 2011-2014 was developed in contravention of the petitioner’s right to protection of the law, their right to be heard and is null and void;

c)A conservatory order restraining the respondents or any other persons acting on their behalf from implementing the Naivasha Basin Water Allocation Plan 2011-2014 or in any other way interfering with the water distribution table for the habitats of Naivasha and its environs;

d)Costs.

The petition is predicated on an affidavit sworn by John Sailoji on 14/11/2011, and grounds found in the body of the petition. Sailoji deponed that he is a resident of Naivasha and the founder of the petitioner, a Non-Governmental Organization with its offices at Naivasha. It is involved in the conservation of sustainable use of the waters of Lake Naivasha and the feeder rivers. The petitioner has taken issue with the Naivasha Basin Water Allocation Plan 2011-2014 (hereinafter referred to as ‘The Plan’) because it would interfere with water distribution pattern, is not sustainable due to changes in the environment, is unfair, unreasonable and infringes on the petitioner’s Constitutional rights; that the respondents drafted Naivasha Basin Water Allocation Plan 2011-2014 and are in the process of implementing the same without consulting or negotiating with the stakeholders of the affected area; that this is contrary to Section 107 of the Water Act 2002 which requires public participation and therefore violates the petitioners right under Article 10 (2) (a) and (b)of the Constitution. The petitioner further contends that the Plan affects community land which under Articles 63 (4) of the Constitution, prohibits any dealings in community land except in terms of legislation. At the time, there was no legislation enacted and therefore any such dealing was unconstitutional.

The petition was opposed. John Rao Nyaoro, the Director of the Water Resources Department, Ministry of Water and Irrigation filed an affidavit dated 24th February 2012, on behalf of the 1st and 2nd Respondents. He deponed that Lake Naivasha is not a community land; the Constitution classifies surface and ground water as a natural resource and Article 69 (1) mandates the State to ensure equitable sharing of accruing benefits. Pursuant to these principles, the respondents developed the Plan to enable effective regulation of the use of the waters of Lake Naivasha, its tributaries and ground water. The first draft proposal of the Plan was prepared by Lake Naivasha Water Resources Users Association (LANAWRUA) in consultation with water users. Subsequently, the 2nd respondents organized a stakeholders meeting at Kenya Wildlife Training College in which the petitioner’s founder, John Sailoji, participated. The invitation was through the Nation newspaper advertisement and electronic media. He further deponed that Section 15 and 107 of the Water Act are in respect to formulation of Catchment Management Strategy which encompasses the Water Allocation Plan. According to the deponent, the 1st and 2nd respondents had complied with section 107 of the Act.He finally raised the issue of the capacity of the petitioner as its duration of operation under the Non-Governmental Organisations Co-ordination Act was for a period of five years which lapsed on 26/4/2010.

The 3rd respondent opposed the petition. Eng. Phillip Olum swore an affidavit on behalf of the 3rd respondent and a further affidavit was sworn by Prof. Albert Mumma. Mr. Olum is the Chief Executive Officer of the Water Resource Management Authority (WRMA). He deponed that in compliance with Section 15of the Act,the 3rd Respondent invited various stakeholders including water users and researchers who developed the Catchment Area Management Strategy for Rift Valley. It published its intention and invited the public to present their contributions and comments for consideration. Amongst the comments invited were in respect to water allocation and water use management plan contained in the Catchment Management Strategy; that John Sailoji, the representative of the petitioner, participated in the discussions both as a representative of Lake Naivasha Water Resources Users Association(LANAWRUA)and on behalf of the Petitioner. Accordingly, the petitioner has failed to demonstrate any breach or threatened breach of its Constitutional rights by the 3rd Respondent.

I have considered the petition, the affidavits and submissions of all counsel. The following are the issues for determination:

1. Whether the petitioner has the locus standi to institute the petition;

2. Whether the petitioner’s right to be heard under Article 10 of the Constitution 2010 was violated;

3. Whether the Naivasha Basin Water Allocation Plan 2011-2014 was developed in contravention of the petitioner’s right to protection of the law and the right to be heard ;

4. Whether the Plan affects the Community Land and is in violation of article 63 (4) of the Constitution;

5. Whether the orders sought can be granted.

Locus Standi of the Petitioner:

The first issue which was brought out by the 1st and 2nd respondent’s replying affidavit, is the legal position of “Lake Naivasha Friends of the Environment.” It was deponed that the petitioner lacks capacity to approach the court as it had been registered for a period of five years from 27/4/2005. The five years expired on 26/4/2010 and therefore it was incapable of filing this petition in 2011. I however disagree. I have taken note of a letter from NGO’S Coordination Board (PO-7) (annexed to the further affidavit sworn by Prof. Mumma for the 3rd respondent dated 9/5/2012) which states that registration certificates of NGO’s are perpetual unless otherwise determined by the Board or voluntarily dissolved. Section 12 (3)of the Non-Governmental Organizations Co-ordination Actfurther provides that:-

“A registered Non-Governmental Organizations shall by virtue of such registration be a body corporate with perpetual succession capable in its name of …”

The petitioner’s period of existence cannot be said to have lapsed and therefore it would have the locus to institute this petition. The requirement to specify the duration of NGO’s activities before its registration, Section 10 (3) of the Act,does not mean that upon lapse of the declared period, the NGO becomes non-existent. The only question is whether John Sailoji who swore the affidavit in support of the application had the authority of the petitioner to file this petition. The letter dated 23/2/2012, shows the officials of the petitioner as Martin Ole Kamwaro, (Chairman) Julius K. Kemboy, Secretary and Lesinko Nabulo Ole Kamwaro, Treasurer. John Sailoji did not exhibit any authority from the petitioner to file the petition on its behalf. He could come to court in his personal capacity as an Interested Party under Article 22of the Constitution as a person acting in the public interest. As it is, it remains unclear whether John Sailoji has the authority of the petitioner to bring this petition.

Whether of right to be heard was breached:

Article 10of the Constitution 2010 sets out the national values and principles of governance that bind all state organs, state officers, public officers in the exercise of their public duties. The respondents are such state organs which are bound by the national values. In this case, the applicant complains that Article 10(2) (a)and(b)was violated in respects to it. The said Article states as follows:-

Art.10(2) “The national values and principles of governance include –

(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

(b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.”

What is relevant in the instant case is the issue of participation of the people and inclusiveness. The question is whether the respondents had a duty to consult as alleged. Section 15 of the Water Act, 2002 makes it a requirement for the 3rd respondent to undertake public consultation in developing a Catchment Management Strategy. The 3rd respondent is a creature of Section 7 of the Act and its mandate is derived from Section 8 of the Act which includes, inter alia, the development of principles, guidance procedures for allocation of water resources. Part of the 3rd respondent’s mandate is to formulate a Catchment Management Strategy for management use, development control, of water resource by undertaking public consultation in accordance with Section 15 of the Act. Section 15(1) reads as follows:-

“S.15(1) Following public consultation, the Authority shall formulate a catchment management strategy for the management, use, development, conservation, protection and control of water resources within each catchment area.”

In undertaking consultation, the 3rd respondent has to comply with Section 107 of the Act. The said Section specifies how public consultation is to be undertaken. The Section reads as follows:-

“S.107 (1) A requirement imposed by or under this Act for a person (in this section called the ‘designated person’) to undertake public consultation in relation to any application made, or action proposed to betaken, under this Act shall be construed as a requirement to ensure that this section is complied with in relation to that application or action.

(2)The designated person shall publish a notice, in relation to the application or proposed action:

(a)in the Gazette;

(b)in at least one national newspaper circulating in the locality to which the application or proposed action relates; and

(c)in at least one Kenyan radio station broadcasting in that locality;

(3)The notice shall in each case –

(a)set out a summary of the application or proposed action;

(b)state the premises at which the details of the application or proposed action may be inspected;

(c)invite written comments on or objections to the application or proposed action;

(d)specify the person or body to which any such comments are to be submitted; and

(e)specify a date by which any such comments are required be received, not being a date earlier than 30 days after publication of the notice;

(4)The designated person shall make arrangements for the public to obtain copies, at reasonable cost, of documents relating to the application or proposed action which are in the possession of the designated person;

(5)The designated person shall consider –

(a)any written comments received on or before the date specified under subsection (3) (e); and

(b)any comments, whether in writing or not, received at any public meeting held in relation to the application or proposed action at which the designated person was represented, or pursuant to any other invitation to comment;

(6)The designated person shall publish, through the same media as were employed pursuant to subsection (2), notice of the fact that a copy of the decision in writing of the designated person in relation to the application or proposed action, and of the reasons therefore, is available for public inspection at the same premises as were notified under subsection (3)(b);

(7)Where rules made under this Act so require, the designated person shall cause a public meeting to be held in relation to the application or proposed action.”

Did the respondents comply with Section 15 and 107 of the Water Act?

The respondents contend that they duly complied with the law and advertised the Catchment Management Strategy in Gazette Notice No. 12223 of 19/12/2008 by inviting the residents of Athi, Ewaso Nyiro, Rift Valley, Lake Victoria South Catchment areas to forward their comments on the draft strategies to the various offices of the respondents. The said advertisement was then carried in the Daily Nation Newspaper of 22/12/08 (Annex 1 of 3rd respondent’s affidavit and annexture 3 of 1st and 2nd respondent’s affidavits). In both mediums, the respondents clearly stated that the advertisement were pursuant to requirements for public participation under Section 15 of the Water Act 2002. The 1st and 2nd respondents also demonstrated that the initial draft proposal of the Naivasha Basin Water Allocation Plan was prepared by the Lake Naivasha Water Resources Users Association(LANAWRUA)in 2009 (JRN 1) and that John Sailoji participated in the consultative meetings between Rural Focus and water users in his capacity as a member ofLANAWRUA. John Sailoji’s name appear in the list of the members present at theLANAWRUAmeeting held on 29/11/2006 at Labella Inn Naivahsa (JRN1 pg 94). John Sailoji’s name also appears as No.33 in the list of those in attendance at a meeting of Lake Naivasha Water Allocation Plan held at KWSTI Naivasha on 18/2/2010, at (JRN 2). The 3rd respondent took a further step so that, though it was not required to do so under the law, it advertised in the Daily nation Newspaper of 8th February, 2010, the intention to adopt the Water Allocation Plan (PO4) and a copy of the proposed Regulations were formulated and advertised in April 2011. There is however no evidence of an advertisement in the local radio station. The respondents only deponed that that they used electronic medium as well. I however do not find this to be fatal because the information did reach the petitioner who participated through its representative John Sailoji. I would agree with the respondents that the meetings and advertisements constitute consultations under the Act because it is impractical for the respondents to contact and invite every interested individual personally to give their input. The meetings and advertisements were sufficient consultation and hearing. If the petitioner had an objection to raise or contribution to make, it should have been done at the meetings or in response to the advertisements. I think that the decision in Peter Bogonko V NEMA 2006 KLR is relevant. The court said:-

“The purpose of the advertisement is to ensure that members of public do see the proposed project and give their comments as to whether the project is viable or not. If they object to it, the reasons for such objection must be given. ….

Did the applicant need to be heard before the proposal was rejected? In my view by presenting the proposal and the comments being made by various interested persons that was sufficient hearing.”

The Gazette Notice 12223 of 19/12/08 did comply in detail with the specifications under Section 107 of the Water Act.

I find that the petitioner was not candid in its allegations of having been excluded from consultations. I further find that the respondents complied with Sections 15 and 107 of the Water Act and were not in violation of Article 10(2) (a)&(b) of the Constitution.

As pointed out by the respondent, it seems the petitioner misconstrued the responsibility of the 3rd respondent to consult. Consultations were only supposed to be in respect of the formulation of the Catchment Management Strategy but not the Plan. This is because the Plan falls under the Strategy. However, the respondents went ahead to consult even on the Plan though there was no requirement under the Act for them to do so.

Whether the Lake Naivasha Water Allocation Plan violates Article 63(4) of the Constitution:

It is the petitioner’s case that a large part of Naivasha is community land owned and occupied by the Maasai, and that the plan will adversely affect the said community land. What is community land? Article 63 defines what community land is. It reads:-

“Art.63

(1)Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.

(2) Community land consists of –

(a) land lawfully registered in the name of group representatives under the provisions of any law;

(b) land lawfully transferred to a specific community by any process of law;

(c) any other land declared to be community land by an Act of Parliament; and

(d) land that is –

(i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;

(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; or

(iii) lawfully held as trust land by the county governments;

But not including any public land held in trust by the county government under Article 62(2).

(3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.

(4)Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.

(5)Parliament shall enact legislation to give effect to this Article”

Article 62(1) (1)of the Constitution classifies all rivers, lakes and other water bodies as public land. Article 62(3) then vests all public land in the National Government to be held in trust for the people of Kenya and to be managed by the National Land commission. Section 62 (1)(1) reads:-

“S.62 (1) (1) Public land is –

(a)land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;

(b)………(h);

(i)all rivers, lakes and other water bodies as defined by an Act of

Parliament;

(j) ……….(n);

3. Public land classified under clause (1)(f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.

4. Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.”

Further to the above, Article 260 of the Constitution on interpretation defines natural resources to include surface or ground water and Article 69(1) (a) of the same Constitution mandates the state to:“ensure sustainable exploitation, utilization, management and conservation of the environment and the natural resources, and ensure the equitable sharing of the accruing benefits”

Section 3of the Water Act 2002 derives from the above provision and vests all the water resources in the State. The Minister for water is required to promote its conservation and ensure proper use of the water resources. As noted earlier, the 3rd respondent derives its mandate from Section 7 of the Act.The mandateincludes, to develop principles, guidance and procedures for allocation of water resources. The said principles and procedures are what will ensure that there is sustainable, equitable management and conservation of the water resources. I find that on examination of the various provisions of the Constitution, the said plan will not in any way interfere with community land because Lake Naivasha is not community land but public land. It is also a natural resource which is vested in the National Government which holds it in trust for all Kenyans. I find that the petitioner has not demonstrated that Article 63(4) has been breached.

Whether the Plan is adverse to the interests of the stakeholders:

The 3rd respondents submitted that the Plan is premised on the Rift Valley Catchment Area Management Strategy which was supposed to determine the water reserve of each water resource. The 3rd respondent has in consultation with stakeholders/users come up with proposed Regulations which the Plan is part of and is not yet concluded. The 3rd respondent annexed an advertisement of the proposed Regulations in the Daily Nation Newspaper on 21/4/2011 inviting comments on the proposals. The petitioner is not truthful in alleging that they have not been heard. The said plan is meant to realize the 3rd respondent’s mandate to ensure equitable and sustainable use of the water resource, bearing in mind the increasing demands for water, diminishing water flows, fallen lake levels, and the likely conflicts that may occur from the different users. As a result, the 3rd respondent has to come up with some controls and restrictions on the resource which is in the Regulations. In essence, the 3rd respondent’s submission is that the Plan is for the public good which far outweighs the grievance of the petitioner a small fraction of the total affected population or the individual interest.

The 3rd respondent annexed a letter dated 3/2/2012, written by Enock Ole Kiminta, the Chief Executive Officer ofLANAWRUAwho supports the said Plan. The members ofLANAWRUAhave appended their signatures thereto. The petitioner is said to be a member ofLANAWRUAtoo. The petitioner may be alone voice or the minority. In considering what the public good is, the court in Maritime Electric Co. Ltd V General Dairies Ltd QB 227 (P.P. Graig in his book Administrative Law 2nd Ed.) said:-

“The underlying principle is that the crown cannot be estopped from exercising its powers, whether given in a statue or common law when it is doing so in the proper exercise of its duty to act for the public good, even though this may work some injustice or unfairness to the private individual … it can however, be estopped when it is not properly exercising its powers but is misusing them; and it does misuse them if it exercises them in circumstances which work injustice or unfairness to the individual without countervailing benefit to the public.”

In implementing policy, it is impossible for the State to please each person or meet their individual interests. In some circumstances, the rights of the majority will be elevated over those of the individual.In the instant case, it seems the majority stake holders/users are satisfied with the consultation and inclusiveness availed them. The rights of the minority must bow. In the end, I find that the applicants have not demonstrated that their rights have been breached as alleged. The petition is hereby dismissed. Each party to bear their own costs.

DATED and DELIVERED this 5th day of October, 2012.

R.P.V. WENDOH

JUDGE

PRESENT:

Ms Muriithi holding brief for Mr. Kipkoech for the petitioner

Mr. Mutinda for the 1st & 2nd respondents

Ms Olewe for the 3rd respondent

Kennedy – Court Clerk