KENYA MICROFINANCE FOR WATER SERVICES

PROJECT

RESETTLEMENT POLICY FRAMEWORK

Final Report October, 2006

K-Rep Bank, Nairobi, Kenya.

Prepared by Michael M. Wairagu Tel Fax 248119/0721 274358/0736499399

RP473

Abbreviations

AOJ = Area of JurisdictionAWSB = Athi Water Services BoardBOQs = Bill of QuantitiesCWPs = Community-managed Water ProjectsDWO = District Water OfficeEA = Environmental AssessmentEIA = Environmental Impact AssessmentEMCA 1999 = Environment Management and Coordination Act 1999EMP = Environmental Management PlanESMF = Environmental and Social Management Framework GoK = Government of KenyaGPOBA = Global Partnership on Output-Based AidM&E = Monitoring & EvaluationMDGs = Millennium Development GoalsMWI =Ministry of Water and IrrigationNEMA = National Environment Management AuthorityNWCPC = National Water Conservation and pipeline CorporationO&M = Operation and MaintenanceOBA = Output Based AidPAC = Program Audit ConsultantPAPs = Project Affected PersonsPMs = Project ManagersRPF = Resettlement Policy FrameworkRWS = Rural Water SupplySO = Support OrganisationSPA = Service Provision AgreementSPAs = Service Providers AgreementTORs = Terms of ReferenceWRMA = Water Resource Management AuthorityWSBs = Water Service BoardsWSP-Af = Water & Sanitation Program – AfricaWSTF = Water Services Trust Fund

Contents

CHAPTER 1: INTRODUCTION..................................................................................11.1 The Assignment................................................................................................11.2 Objectives of the ESMF and RPF.......................................................................11.3 Approach and Methodology:.............................................................................2CHAPTER 2: PROJECT DESCRIPTION...........................................................52.1 Project Scope and Institutional arrangements..................................................52.1.1 Objective:.........................................................................................................52.1.2 OBA Pilot Program -Design Principles and Approach:........................................52.1.3 Definition and Measurement of Outputs:..........................................................62.2 Description of the Project Area.........................................................................72.3 Nature of projects to be supported under GPOBA:..........................................102.4 Development Cycle of OBA Pilot sub-projects in Kenya:.................................11CHAPTER 3: THE LEGAL FRAMEWORK.................................................................163.1. Focus of the Resettlement Policy Framework.................................................163.2. GOK Policies on Voluntary Transfer of Land....................................................163.2.1. State-owned land............................................................................................173.2.2. Trust lands......................................................................................................183.2.3. Privately owned land......................................................................................193.3. GOK Policy on Involuntary Transfer of land.....................................................193.3.1. Compensation in case of Compulsory Acquisition...........................................193.3.2. Compensation in case of non-relocation.........................................................203.4. World Bank safeguards policy on Involuntary Resettlement...........................213.5. Gaps between local and World Bank Policies on resettlement........................22CHAPTER 4: PRINCIPLES, OBJECTIVES, AND PROCESSES............................234.1. Principles and Objectives................................................................................234.2. Minimization of Displacement.........................................................................234.3. Livelihood Restoration....................................................................................244.4. Compensation principles will apply as follows: -.............................................24CHAPTER 5: MANAGING THE LAND ACQUISITION PROCESS........................255.1. Generic aspects..............................................................................................255.1.1. Environmental Assessments for Project Report Study:...................................255.1.2. Investigation of tenure of target land:............................................................255.2. Process of identifying PAPs.............................................................................255.3. Entitlements based on livelihood impacts.......................................................26CHAPTER 6: COMPENSATION PROCEDURE IN CASE OF INVOLUNTARY RELOCATION..........................................................................................306.1. The Principles and objective...........................................................................306.2. Replacement cost for other assets.................................................................316.3. Methods of Valuing affected Assets................................................................316.3.1. Valuation of land.............................................................................................316.3.2. Valuation of Immovable Property....................................................................316.3.3. The Process of Valuing....................................................................................32CHAPTER 7: IMPLEMENTATION RESPONSIBILITIES....................................337.1. Responsibility for compensation.....................................................................337.2. Grievances redress mechanisms....................................................................33Consensus, Negotiations and Conflict Resolution.......................................................34

CHAPTER 8: MONITORING SYSTEMS.........................................................378.1. Monitoring systems.........................................................................................378.1.1. Monitoring:.....................................................................................................378.1.2. Reporting:.......................................................................................................37APPENDICES:..........................................................................................38Appendix 1: The Terms of Reference.......................................................39Appendix 2 List of Institutions visited and people interviewed..................43Appendix 3: Screening Form for Community Water Projects.....................47Appendix 4: Terms of reference for preparation of project reports under emca 1999 50Appendix 5: Structure of RAP.................................................................53........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Appendix 6: Generic Monitoring Plan for CWP.........................................54.....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................appendix 7: framework for the inventory of paps and assets....................56Bibliography...........................................................................................60

List of FiguresFigure 2-1: Map of the AWSB Area of Jurisdiction.........................................................7Figure 2-2: Aridity Analysis for Kajiado Town area.......................................................8Figure 2-3: Aridity Analysis for Thika Town Area..........................................................9Figure 2-4: Simplified Sub-Project Scheme Cycle.......................................................12Figure 5-1: Generic Aspects of Compensation............................................................29

List of TablesTable 2-1: Design Features of Typical OBA CWPs.......................................................11Table 5-1: Impact / Entitlement Matrix.......................................................................28Table 7-1: Compensation Matrix with Grievances redress mechanisms.....................35

Executive Summary

Kenya has a history of community-management in small water supply projects in rural and peri-urban areas. Despite their prevalence and good performance they often lack access to funds. Kenya also has a relatively well functioning micro-finance sector with an expressed interest in developing a new product line for community-managed small water projects. The government policy also promotes use of innovative financing of such water projects.

The purpose of the pilot is to demonstrate that microfinance has an innovative and beneficial role to play in financing small water infrastructure in the country. The use of micro-finance linked to OBA will increase the sustainability of small community-managed water supply projects. While the pilot is restricted to the Nairobi region, lessons from this experience will help in scaling up this approach in Kenya as well as provide lessons for other countries.

GPOBA will provide subsidies to about 20 CWPs selected through a transparent and demand responsive approach. Each CWP sub-project will be pre-financed through a combination of its own resources (20%) and a loan from the K-Rep Bank (a domestic micro-finance bank in Kenya). K-Rep Bank will follow its normal due diligence process for this loan offer. On successful completion of the project and related certification of the delivery of outputs by an independent program audit consultant (PAC), a partial subsidy of 40% of total project cost will be made to the CWP to refinance a part of the loan from the K-Rep Bank. The outputs will be defined in terms of new connections and an agreed level of revenue mobilized through user charges. The subsidy amount has been determined on the basis of an assessment of overall household affordability using average rural household expenditure in Kenya. The assessment suggests that 40% subsidy as required to ensure affordable household bills given the prevailing commercial terms for commercial finance.. Responsibility for repayment of the loan remaining after the OBA subsidy (40%) will be upon each CWP mainly through operating surplus on CWP accounts. This arrangement will ensure the injection of market rigor in the financing of investments and subsequent operations

The Environmental Management and Coordination Act (EMCA) and Water Act of Kenya and the World Bank Operational Policies all require that for projects of this nature that environmental impacts be assessed. As the project does not currently know the exact CWPs to be included in the portfolio, due to the demand based selection methods to be used, this is not exactly possible presently. To ensure that environmental and social considerations of the project are

accounted for an Environmental and Social Management Framework is being prepared (ESMF). The ESMF will help to identify the anticipated impacts of the CWP investments and also to design appropriate mitigation measures to reduce negative impacts.

Where new land has to be acquired for CWP investments, there will be need for the preparation of procedures and principles for land acquisition, resettlement and compensation. This requires that resources to meet the needs of the Project Affected Persons (PAPs) who may be displaced from their habitat and resources be considered. It also requires adequate collaborative consultation and agreement with the PAPs to ensure that they maintain or improve their livelihoods and standards of living in the new environment. This RPF is prepared to ensure effective preparation and implementation of the land acquisition, resettlement and compensation process for this OBA pilot project.

The proposed project activities fall under prescribed projects (category B) of the World Bank’s Operational Policy (OP 4.12) on involuntary resettlement. This RPF therefore, has adapted applicable principles outlined in the World Bank’s Operational Policy (OP 4.12) into local experiences.

Preparation of this RPF is based on the field visits and consultations with stakeholders in the project area as well as consultations with other institutions including Government Ministries. The RPF draws its strength from the legal instruments that exist in Kenya and the World Bank Operational Policies provide the basis and the legal platform for the conduct of land acquisition, compensation and resettlement; and they have been extensively used to prepare this RPF.

The legal instruments have been noted to contain relevant legislation that defines the different classifications/categories of land, and specific issues that relate to land acquisition and land transfer including the management of the land acquisition and transfer processes itself. For instance, a series of legislations, including the Registered Land Act, The Land Control Act, the Trust Land Act and the Land Titles Act, provide the basis for owning and acquiring land in Kenya.

Using the information obtained through stakeholder consultations, the existing laws and regulations and the World Bank Operating Policies, this RPF has developed the screening process, methods for valuing assets and procedures for delivery of compensation. The RPF establishes parameters for the conduct of land acquisition and compensation that may be used during the project. The RPF has also made recommendations for appropriate local and national structures

to facilitate smooth and effective implementation and monitoring of resettlement and compensation for the ISP.

The RPF has been prepared in anticipation that the project activities under the OBA pilot project will require additional land. The RPF therefore, provides safeguards against adverse impacts of development activities through minimizing the number of (PAPs) in the first place. It provides procedures and means for adequately compensating for the losses the PAPs may incur, in the case that resettlement impacts cannot be avoided.

This RPF includes guidelines for compensation for land contributed voluntarily for CWPs without seeking compensation; as well as land acquired involuntarily by the projects. The guiding principle for land acquisition shall be that where land is required for implementation of the ISP activities, the recommended safeguards shall be observed to reduce the suffering of the affected community members.

The RPF is intended to assist all proponents financing small water projects under the OBA pilot project. The overall responsibility for implementation of this Framework shall be with the project sponsor, K-Rep Bank and they will be assisted by the Athi Water Services Board. The project has a direct capacity building component to enhance the ability of communities to manage issues around land acquisition within this project and as they implement future projects.

Implementation of the RPF shall require a number of steps including: A full understanding of the project components, particularly

those requiring land acquisition as facilitated by the support organization working with sub-projects

Determination of land ownership Screening of the project sites and activities Property and asset valuation Preparation and approval of resettlement plans where there will

be Project Affected Persons Implementation and monitoring of the resettlement plans Effective redress of complaints and grievances Public consultation and participation

These steps will ensure that micro-projects are satisfactorily and efficiently implemented to effectively address any adverse social, economic and environmental impacts so that PAPs are fairly treated on land acquisition and resettlement.

1 Chapter 1: Introduction

1.1 The Assignment

Considerable investment will be required to meet the water MDGs in Kenya, in particular in rural areas where coverage is only 52%. To meet the MDGs coverage, an additional 5.6 million rural inhabitants will require access to water services over this period, besides a large proportion of covered population requiring rehabilitation support. Despite the importance given to rural water supply in the Government of Kenya’s new Economic Recovery Strategy, budget constraints may make it difficult to have significant increases in allocations.

The Global Partnership on Output-Based Aid (GPOBA) has approved a Pilot Project focusing on use of micro-finance for small water projects within the area of jurisdiction of the Athi Water Services Board (AWSB). The GPOBA Pilot brings together several players such as the Ministry of Water and Irrigation, K-Rep Bank, the Athi Water Services Board (AWSB), the Water and Sanitation Programme-Africa of the World Bank, a local Support Organisation and diverse communities within the AWSB’s area of jurisdiction.

The WSP-Af commissioned this assignment for the preparation of an Environmental and Social Management Framework (ESMF) and a Resettlement Policy Framework (RPF) to complement other tools for guiding development of sub-projects under the OBA Pilot in Kenya. Specifically, the role of the consultant is to establish clear methodologies to apply in identifying and mitigating environmental, social and resettlement impacts associated with the design, implementation and operation of sub-projects proposed for support under the OBA pilot project. Appendix 1 contains the terms of reference for this assignment.

1.2 Objectives of the ESMF and RPF The Terms of Reference (Appendix 1.1) require the preparation of an ESMF and a RPF for the OBA Pilot in Kenya. For purposes of clarity in approach and expected output, these are described as:-

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The ESMF: to establish a mechanism to determine and assess potential environmental and social impacts of subproject investments under the proposed OBA Pilot in Kenya, and then to set out mitigation, monitoring and institutional measures to be deployed during design, implementation and operation of the subprojects to eliminate adverse environmental and social impacts, offset them, or reduce them to acceptable levels.

The RPF: outlines the procedures for assessing compensation due to a Project Affected Person (PAP);- a person that loses assets and/or usage rights and/or income generation capacities (e.g., land, structures, crops, businesses) because these assets/rights/capacities are located in land to be acquired for needs of the project. As with the case of an ESMF, development of an RPF is a requirement for projects that may entail involuntary resettlement under the World Bank Safeguard Policy on involuntary resettlement (OD 4.12, December 2001). As the specific site location for project activities are unknown at the time of project preparation, a RAP could not be completed at this time. Once specific site locations are known a RAP will be prepared based on procedures and guidance set forth in this RPF.

Both the ESMF and RPF thus provide useful tools for building environmental and social sensitivity in the entire development cycle of proposed sub-projects. OP 4.01 of the World Bank safeguards requires that an ESMF report be prepared for all projects have anticipated environmental impacts. OP 4.01 further requires that the ESMF report must be disclosed as a separate and stand alone by the Executing Agencies and the World Bank as a condition for Bank Appraisal of the target projects. The disclosure should be both in Kenya where it can be accessed by the general public and local communities and at the Info-shop of the World Bank and the date for disclosure must precede the date for appraisal of the project.

1.3 Approach and Methodology: Towards preparation of an ESMF and RPF documents for the GPOBA pilot project in Kenya, the TOR have identified the following core tasks:-

i) Review of the proposed project in terms of main components and area of influence to assess potential social and environmental issues – this will be based on a review of documents, discussions with key project agencies. In addition the consultant will also have consultations with key stakeholders, including but not limited to

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the officials of AWSB, K-Rep Bank, Ministry of Water and Irrigation, NEMA, the consultant (SO) engaged by the WSP-Af to provide support services to the community sub-projects and a few NGOs engaged in the water sector in Kenya

ii) Review of the relevant national policy, administrative and legal framework (including specific legislation related to environment and water) in Kenya, and World Bank safeguard requirements

iii) Development of the proposed environment and social plan, and related institutional responsibilities including: issues, mitigation measures and institutional responsibilities for implementation and monitoring and related capacity building requirements for each phase in the pilot project (pre-identification, detailed assessment and applications, and construction).

The main steps included in the methodology were: -i. The study initially employed desk review of available WSP-Af

and literature for preliminary analysis.ii. The preliminary analysis was validated in working sessions

with core project collaborators at WSP-Af, AWSB, Ministry of Water and Irrigation, K-REP Bank, Project Engineer and the Project Support Organisation.

iii. On the ground consultations in the project area and relevant stakeholders were then made in the three fairly advanced sub-projects of Kanunga, Kamandura and Kerarapon CWPs and discussions made with the project leadership, potential customers, locally based NGOs and AWSB staff at District level. The consultant also took advantage of such consultations to collate views from diverse stakeholder groups as is required in any environmental assessment process. Appendix 1.2 provides a list of people consulted.

iv. Consultations also covered the legal and policy issues relevant to ESMF and RPF for rural community water supply.

v. As part of the study, potential environmental and social impacts associated with implementation of individual CWPs under OBA support were identified through application of standard procedures1.

vi. The magnitude, significance, importance and acceptability of the impacts was evaluated with an aim to determine the

1 This draws on work under the Sectoral Checklists developed by the Department of Environmental Affairs of the Republic of South Africa and the Reference Guidelines for Environmental Assessments (which incorporates the Leopold matrix) developed by USAID/REDSO/WGA – Abidjan.

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World Bank Category of the proposed OBA Pilot Project schemes.

vii. Measures or interventions necessary to minimise, reduce, avoid or offset identified adverse impacts were then identified and evaluated.

viii. Monitoring requirements were identified to ensure compliance in implementation of proposed mitigation measures. This involved development of monitoring indicators and procedures for continuous generation of project monitoring data and information.

ix. As part of the ESMF/RPF study, an assessment of the capacity of diverse stakeholders to fully execute responsibilities in project implementation was undertaken through a review of their establishment vis a vis their designated mandate and roles in the project. Requisite capacity building needs especially for the CWPs were identified and appropriate recommendations made.

x. The draft ESMF/ RPF will ultimately be shared with the key stakeholders to the OBA Pilot in Kenya with a view to creating a forum for revalidating the proposed process and to further secure ownership of the process.

Appendix 2 contains a list of persons met in this assignment.

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2 Chapter 2: Project Description

2.1 Project Scope and Institutional arrangements2.1.1Objective: The objective of the OBA Pilot is to increase access to water supply service by the poor in the rural and peri-urban areas of Kenya and to increase the efficiency of water supply services. Further, the pilot should demonstrate that microfinance has an innovative role to play in financing small water infrastructure in Kenya. Use of micro-finance linked to OBA is also envisaged to increase sustainability of small community-managed water supply projects and while the pilot is for the Nairobi region, lessons from this experience will help in scaling up this approach in Kenya as well as provide lessons for other countries.

2.1.2OBA Pilot Program -Design Principles and Approach: The key principles in the proposed OBA program include:

Participation/ use of domestic micro-finance institution in pre-financing the community-managed water projects (CWPs) – both to leverage local resources and to enhance sustainability through injection of market rigor

Introducing the concept of performance-linked subsidy payments to enhance sustainability

Use of implementation arrangements that will be conducive to scaling up in Kenya (for example by introducing an OBA window at the newly set up Water Services Trust Fund) and development of assessment tools and manuals that can be used globally

The OBA Pilot will provide subsidies to 18 CWPs selected through a transparent and demand responsive approach. Each CWP sub-project will be pre-financed through a combination of its own resources (20%) and a loan from K-Rep Bank (a domestic micro-finance bank in Kenya) (80%). K-Rep Bank will follow its normal due diligence process for this loan offer. Upon successful completion of the project and related certification of the outputs by an independent program audit consultant (PAC), a subsidy reflecting 40% of total capital expenditure will be provided to the CWP, allowing CWPs to prepay part of the loan from the K-Rep Bank.

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2.1.3Definition and Measurement of Outputs: Two types of outputs will be achieved in projects financed under this pilot. Firstly, investments will result in increased coverage and secondly, operational efficiency will be increased. Outputs will be agreed upon with the community and will be detailed in the OBA agreement with the K-Rep Bank. OBA subsidy payment will be linked to the level of achievement of agreed outputs. The two output parameters (for the purpose of triggering payment of subsidies), developed to ensure ease in measurement, include:

Increase in Coverage: The proposed investments will ensure coverage within the CWP jurisdiction as defined in the Service Provision Agreement (SPA) achieved through an agreed number of new individual household connections and if required, new shared kiosk facilities at agreed working conditions and service standards.

Increase in Operational Efficiency: For existing projects increase in operational efficiency will be captured by an increase in revenue; measured as the average monthly revenue collected from water sales over the three initial months after project commissioning.

In addition, CWP benefiting from GPOBA subsidies will be asked to monitor (initially with the assistance of the program manager) other indicators, including as per GPOBA requirements, per capita consumption, continuity and quality of supply, billing and collection efficiency, unaccounted for water to provide operational diagnostics for project management.

Outputs will be verified by the PAC, who will be retained by K-Rep Bank, through a post-project audit to assess the level of outputs attained against baseline information ascertained during project selection. The post-project audit will take place in two stages;- at the end of three months (after project commissioning) the PAC will audit outputs achieved. This initial audit, and subsequent no-objection by AWSB and GPOBA, will trigger subsidy release to the community account based on the proportion of outputs achieved. If the outputs are less than 100% of those agreed to, the PAC will update the audit report through an additional field visit 3 months later. The additional proportion of outputs attained will then be the trigger for additional OBA subsidy. The maximum level of OBA subsidy in the two visits will be 100% of the amount agreed to in the OBA agreement (about 40% of project capital expenditure).

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2.2 Description of the Project Area Geographic extent and Coverage: The OBA Pilot in Kenya will provide subsidies to about 20 CWPs selected from within the AWSB area of jurisdiction (AOJ). Administratively, this AOJ covers the Greater Nairobi districts of Kiambu, Kajiado, Machakos, Makueni and Thika (Fig 1.0), which with the exception of Makueni, form part of peri-urban Nairobi. As is typical of peri-urban Nairobi, sections of the project districts such as Kitengela and Ngong (Kajiado), Athi River and Kangundo in Machakos, Ruiru and Juja in Thika District are experiencing rapid growth triggered by spill-over population from the city of Nairobi. Demand for essential services and infrastructure has also grown in tandem with the increase in population.

Figure 2-1: Map of the AWSB Area of Jurisdiction

Climate: On account of low altitude some parts of Makueni, Machakos and Kajiado Districts receive low rainfalls generally below 500mm. The rainfall occurs in two wet seasons (long rains in March to May and short

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rains in December) separated by two dry spells- a long one in June to October (5 months) and a short one in January and February. Temperatures remain high throughout the year (mean maximum of 340c) giving rise to correspondingly high daily evaporation rates in the range of 6 mm with annual totals estimated at 2000-2200mm. Monthly evaporation is never exceeded by rainfall even during the wettest month (Fig. 2-2) implying prevalence of an intense moisture deficit throughout the year.

Figure 2-2: Aridity Analysis for Kajiado Town area

With a ratio of rainfall to potential evaporation (r/Eo) of 0.2, the climatic potential at the low lying parts of Makueni, Kajiado and Machakos is generally arid but shifts to hyper-arid during the dry season lasting June to November. This is an area therefore, where inadequacy of natural humidity is a great constraint to ecological productivity and nomadism is the only feasible means of coping. Quite frequently, the dry season prolongs into a drought season during which time, all pasture and water resources get depleted resulting in loss of livestock. Ecological productivity is however higher on sites receiving supplemental moisture from runoff, stream courses or sub-surface flow.

Parts of the OBA Pilot area situated on higher elevation, along the slopes of Ngong Hills and the Aberdare ranges generally enjoy better climatic regimes on account of the moderating effect of relief on both rainfall and evaporation. The double maxima rainfall pattern still prevails (“long rains” in March to May and “short rains” from October

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to December) but the rainfall content is much enhanced as to yield a surplus over potential evaporation demand. This is the humidity that is harnessed by forested catchments to generate stream flow and is also taken advantage of by farmers engaged in intensive mixed farming.

Figure 2-3: Aridity Analysis for Thika Town Area

Hydrology and Drainage: In terms of hydrology, the seasonal humidity prevailing in the high elevation areas of the OBA Pilot Districts is critical as the source of recharge for both surface and groundwater resources in the areas. Characteristically therefore, and with the exception of parts of Kajiado district, the high elevation areas in the OBA Pilot also form vital catchments for the Athi River and its tributaries that account for all surface water supply in Drainage Basin 3 in Kenya.

Population and settlement: Traditionally, the OBA Pilot area was habited by thee ethnic groups;- Maasai in kajiado, Kambo in the greater Machakos District and Kikuyu in Kiambu and upper parts of Thika District. Wakamba generally habits the lower parts of Thika District. Peri-urban Nairobi in Kiambu, Thika, Machakos and Kajiado Districts is however cosmopolitan on account of settlement by people pf diverse ethnic backgrounds.

Population density largely depends on the land-use system in place. Where the land has been subdivided in small plots, in Ngong, Kitengela (Kajiado), Athi River, Kangundo (Machakos), Githuirai, Ruiru (Thika), and Kabete , Limuru, Kiambaa in Kiambu District, population densities tend to be quite higher. However, where the land is still under ranches and coffee estates, population density is quite low. The OBA Pilot specifically targets projects in the rapidly urbanizing parts of the AWSB’s AOJ.

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Land-use: Land-use patterns in the OBA area generally follow the climatic pattern. Within the OBA Pilot area, which is basically peri-urban Nairobi, land-use is characteristically mixed farming with animal production providing the economic mainstay. As well, owing to population explosion, the demand for residential, trade and institutional facilities is on the increase, with considerable more land being committed to construction. Peri-urban Nairobi is rapidly urbanizing. Intensification of farming has created a huge demand in supply of safe and affordable water-a commodity that is never in adequate supply within the peri-urban Nairobi.

Other economic activities: On account of urbanization, trade, light industries are rapidly catching up in the peri-urban Nairobi. As well, and in response to population explosion, demand for institutions of early childhood and primary education is on the rise. There is currently a proliferation of private institutions in peri-urban Nairobi where land is still available and affordable.

2.3 Nature of projects to be supported under GPOBA: The sub-projects targeted for support under the OBA Pilot in Kenya are essentially small scale community water projects each meant to supply water needs for a couple of hundred households through exploitation of either ground or surface water. Budgets for the three advanced schemes reviewed so far are small, averaging 8 million while the highest budget for those still in the pipeline is Ten Million Kenya shillings (Ksh. 10 million), the bulk of which funds are targeted to finance infrastructure and technical assistance. Design features of proposed schemes are as in Table 2-1 below:-

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Table 2-1: Design Features of Typical OBA CWPsType of scheme

Typical Infrastructure

Distribution system

Monitoring system

Borehole Pumping set sometimes fitted with a master meter

Storage structure and pipe network

Metered connections or kiosks for domestic use and cattle troughs for animal watering.

Springs Intake and pumping set

Storage structure and pipe network

Metered connection or kiosks for domestic use and cattle troughs for animal watering.

2.4 Development Cycle of OBA Pilot sub-projects in Kenya:The OBA Pilot in Kenya will provide subsidies to about 18 CWPs selected through a transparent and demand responsive approach. Each CWP sub-project will be pre-financed through a combination of its own resources (20%) and a loan from the K-Rep Bank (a domestic micro-finance bank in Kenya). On successful completion of the project and related certification of the delivery of outputs (in terms of new connections and an agreed level of revenue mobilized through user charges), by an independent program audit consultant (PAC), a partial subsidy of 40% of total project cost will be made to the CWP to refinance a part of the loan from the K-Rep Bank.

The cycle developed for OBA supported sub-project largely mirrors that followed in rural water supply (RWS) but has been modified to incorporate micro finance and OBA-linked concerns in a design approach aimed at facilitating rapid dissemination of lessons to DRA type projects being developed in diverse actors within the developing countries. In addition, the approach will also enable other domestic micro-finance institutions in developing new product and business lines in community-managed infrastructure projects with OBA assistance.

The simplified scheme cycle comprises five main stages as illustrated in figure 2.4. The initial steps focus on selection of sub-projects.

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Figure 2-4: Simplified Sub-Project Scheme Cycle

i. Pre-identification through expression of demand with AWSB and K-Rep Bank: During this stage, the selected CWPs will be assisted by the SO through the following two stages:

5: Operations PhaseReporting to AWSB as per the SPAOperations and MaintenanceLoan repayment Meet the SPA performance targets (with PM if necessary) and receive OBA subsidy

Information dissemination on loan productOpening a CWP accountAssist the CWP to prepare ‘Community Contribution Mobilization Plan’

1: Pre-Identification:

Registration of CWP interest as per guidelines (by AWSB)Rapid field assessment (technical, fin, mgt)Preliminary expression of demand by CWP

2: Sub-Project Assessment/ Applications

Finalization of business plansApplication for SPA (to AWSB) and loan (to K-Rep Bank)Tender documents with BOQs and contracts

3: Project AppraisalSPA signed with AWSBLoan offer letter from K-Rep Bank

Financial assessmentAssessing CWP management capacity Technical assessmentRisk assessment and mitigation plan

4: Project ImplementationWith PM if needed:

Contractor procurement by CWP Supervision by CWP during construction Commissioning, certification and hand-over of new facilities to CWPOBA subsidy payment on certification by PAC – for loan repayment + project management

Loan disbursement (80% of sub-project costs) in agreed tranchesImplementation monitoringReceipt of funds from CWP to refinance 50% of the loan, using the OBA subsidy

Loan (40% of project costs) recovery Regular monitoring to ensure viability and risk mitigationExplore new loan after successful credit history is established

Special Role of Micro-finance Institution

Main Stage in Scheme Cycle

Appraisal and loan approval with conditions precedent

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a. Selection of Eligible Community Water Projects: Towards this, the AWSB has held district promotion workshops in Kiambu, Thika and Kajiado, Machakos and Makueni Districts at which several CWPs indicated preliminary interest. Based on dissemination at this workshop, and with assistance from the District Water Office (DWO) staff in the AOJ, AWSB has registered interest from 44‘eligible’ CWPs. This registration was done for those CWPs that provided a signed letter of interest, a brief technical proposal, copies of their current registration of the Project, bye-laws and minutes of project committee meetings in the last 3 months and financial details. All eligible CWPs will be ranked and the top 35 projects included in the next stage of pre-identification.

b. Rapid field assessment – focusing on technical assessment of the existing project and proposed investment, progress in obtaining a water permit; and, financial and management viability assessment of the ‘project entity’. These assessments will be done through interviews with the project committee, a brief review of their accounts, a visual inspection of project assets and an independent review of proposed project investments by advisors retained by WSP. The teams doing the rapid assessment will also assist the eligible communities to prepare a plan for mobilization of community cash contribution raised from new connections.

c. Expressed community demand – To receive advisory support from WSP (under the GPOBA TA phase) for preparing SPA and loan applications, the community project will have been required to open a bank account with the K-Rep Bank and deposit at least Ksh. 50,000 or 1% of the proposed project cost whichever is larger; and, to develop and have the project committee ratify a time-bound community cash contribution mobilization plan for netting the required upfront cash co-finance from new connectors.

ii. Sub Project assessment / Application-At this phase, the business plan for the CWP will be finalised following which, using the technical assistance extended by WSP, the CWP will make the necessary applications for an SPA to AWSB and for a loan to the K-Rep Bank. Environmental Management Plans are developed in this phase. Resettlement Action Plans (if necessary) are also developed in this phase.

iii. Project Appraisal and loan approval: The CWP will become eligible for phase II subsidy funds once these applications have been successfully processed following which eligible CWPs will also receive

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WSP assistance to work out the contract modalities and tender documents.

iv. Project implementation: At Implementation, GPOBA will provide an advance equivalent to the projected disbursements over the first four months. Further transfers will be based on quarterly financial management reports submitted by the K-Rep Bank.

Pre-financing of the CWP project will be through CWP’s own resources (20%) as well as a loan from the K-Rep Bank (80%). Each CWP will open a project CWP account (CA) with the k-rep Bank. The initial cash contribution from the CWP will be placed in the CA. The loan proceeds will be paid to the contractor through this account in instalments against payment certificates as per the agreed schedule in each project. Payment certificates will be submitted by the CWP to the K-Rep Bank. These will be prepared for the CWP by the Project Managers after doing proper check measurements for contractor invoices.

Procurement for the proposed pilot OBA program would be carried out in accordance with the World Bank’s "Guidelines: Procurement Under IBRD Loans and IDA Credits" dated May 2004; and "Guidelines: Selection and Employment of Consultants by World Bank Borrowers" dated May 2004, and the provisions stipulated in the Legal Agreement with the GPOBA.

v. Operations Phase: The core activity during implementation will be monitoring. Three aspects of monitoring and evaluation are important:

i. Regular implementation monitoring - This will focus on progress of the project relative to planned implementation schedules. K-rep Bank using its own records and inputs from the PAC reports will develop and submit to GPOBA quarterly implementation reports describing project progress. including details of resettlement activities (if relevant) and anticipated environmental and social impacts.

ii. Output monitoring – This is the certification of the delivery of outputs to trigger GPOBA subsidy payment to CWPs. For this, the K-Rep Bank will retain the services of a program audit consultant (PAC) with technical and financial skills.

iii. Evaluation of the pilot program – in terms of its contribution to developing an appropriate window at the WSTF for leveraging regular government and other donor resources to mobilize domestic financial resources – such as from the micro-finance institutions and commercial banks – for CWPs. WSP-Af and the PMC will evaluate the performance of the pilot on the basis of

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the external audit at project close and the series of monitoring documents developed throughout the project.

Opportunities for Social/ Environmental Impact Assessment: The Project Development Cycle outlined above provides excellent opportunities to in-build a structured impact assessment system quite compatible with programmed appraisals and monitoring. Specific entry points will be outlined elsewhere below. It is the action of the ESMF identifying land as an impact that will trigger application of the RPF.3

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4 Chapter 3: THE LEGAL FRAMEWORK

3.1. Focus of the Resettlement Policy Framework

This section sets out the framework for policies, principles, institutional arrangement schedules, and other indicative requirements to facilitate the process of land acquisition, or impacts on assets, and attendant compensation measures.

The RPF is developed based on the standards of the Government of Kenya’s Resettlement policy as stated in various legal and constitutional documents and the policy of the World Bank (as provided in OP 4.12). It is motivated by the realization that, unmitigated involuntary resettlement in development has potential to trigger severe economic, social and environmental risks including;- displaced and dismantled production systems, loss of income sources, weakened community institutions and social networks, dispersed kin groups and diminished or lost cultural identity and traditional authority.

Therefore, the main objective of this RPF is to address and mitigate risks that may arise thereof. Where there are gaps between the Bank and Government requirements, Bank policies shall be overriding.

3.2. GOK Policies on Voluntary Transfer of Land

At present, there are three categories of land in Kenya, namely Government land, trust land and private land. The classification of land into the three categories is as result of historical development of land laws in Kenya since 1897:

a) The Kenya Independence Order in Council 1963 provided that all land that was vested in Her Majesty or in the Governor shall be deemed to have vested in the Regions or the Government of Kenya on 12th December, 1963. However, land that previously vested in the Regions was relocated to the Government of Kenya in 1964 and this situation continues to this date. Government land includes all un-alienated government land held and occupied by government agencies, territorial sea and sea bed, all public roads whether gazetted or not and land that remained un-adjudicated under the Land Titles Act (Cap.282).

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b) Trust land is defined as land held in trust in Part IX of the Constitution and the Trust Land Act (Cap.288).

c) Private land is all land with registered title in accordance with the Land Titles Act (Cap.282).

In the three categories, the basic or radical title vests either in the Government for Government land (as in (a) and registered owners in the case of titles granted by the Government (as in (c)); and in the county councils for both Trust land and registered titles derived from Trust land (as in (b).

3.2.1. State-owned land

State owned land is governed by diverse laws depending on the purpose for reservation. The Government Lands Act (Cap.280) governs the allocation and administration of all Government land both urban and agricultural.

Gazetted Forests: Forest land is reserved under the Forest Act 2005. The Forest Act allows several ways of accessing and use of forestland:

Under the Forest Act, a piece of Forest land can be degazzeted and converted to other uses. Forest Act however requires all de-gazzetment of forest land to be discussed and approved by Parliament. All degazzeted land then reverts to the Commissioner of Lands who then proceeds to allocate in line with the Land Control Act.

Under the Forest Act 2005, forestland can also be leased for use for other purposes provided that such use does not contradict the purpose for land reservation. The same Act also allows for Participatory Management of Forests and thus guarantees communities (under auspices of Community Forest Associations) rights to access and utilize certain forest goods and services including citing of water supply intake works in forest areas. These intake works require that small infrastructure be placed in water courses to allow for abstraction.

National Parks and Nature Reserves: Nature Reserves and National Parks are controlled by the Kenya Wildlife Service under the Wildlife Management and Co-ordination Act of 1976. The common feature with all land reserved for use by wildlife is that its conversion to any other form must be approved by parliament. Museums and National Monuments: Quite often, sites of historical and cultural importance are gazetted and reserved under the Museums and National Monuments Act. Such land is never available for alternative uses.

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Riparian Reserves and Water Courses: Without exception, all intake works, for water will be cited within river reserves, which are preserved under the Agriculture Act (Cap 318 of the Laws of Kenya). According to the Agricultural Land-use rules, which are enforceable under Cap 318, any activities that may destabilize river beds are prohibited.

Road reserves: All road reserves are public land reserved under the Physical Planning Act Cap 286. Road Reserves are unique as public utility lands where all infrastructure lines such as for water supply, power and telecommunication will be found.

3.2.2. Trust lands

The Trust Lands Act (Cap.295) governs the administration of land as described in section 114 of the Constitution. All trust lands are vested in county councils, to hold such land for the benefit of the persons ordinarily resident on that land. Under section 117 of the Constitution, an Act of Parliament may empower a County Council to set apart an area of trust land vested in it for public use and occupation. Thus Local Government Act (Cap. 265) provides for the establishment of local authorities and defines their functions. Local Authorities exist for the purposes of planning for and providing basic social amenities and services including education, health care, roads, sanitation, housing, markets, open spaces, parks etc. The local Authorities as such are vested with authority over trust land for the benefit of their residents. Such land can thus be allocated for occupation as follows:-

a) by a public body or authority for public purposes;

b) for the purposes of prospecting for or the extraction of minerals or mineral oils; or

c) by any person or persons who in the opinion of the county council will benefit area residents.

This latter clause is important because it provides for access to land by schemes meant to benefit the public. Transfer of such land either to individuals, institutions or other group is through letters of allotment which must cite the Minute of a Full Council meeting which approved the transaction.

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3.2.3. Privately owned land

Under the National Constitution, all land is vested with the government and occupants of private land only enjoy usage rights either under lease or freehold arrangements. Transactions involving privately owned land are controlled by two core legislations as follows:-

The Registered Land Act (Cap 300) governs registration of title to land, and for regulation of dealings in such land. It provides for private ownership of land by individuals. It should be noted that both individual and corporate persons can hold title under the RLA.

The Land Control Act Cap 406 , which allows for all private land to be adjudicated and registered following which, a title deed is issued to the registered owner.

Acquisition of private land is through transfer of the title deed either on account of inheritance, purchase or free gift but in all cases, transfers must be registered with the District Land Registrars following approval by the Land Control Boards.

Voluntary transfers of land where there is clear ownership/access to sale of land is conducted on market terms and rates.

3.3. GOK Policy on Involuntary Transfer of land

3.3.1. Compensation in case of Compulsory Acquisition

Provisions under the Constitution: In Kenya, expropriation is provided for in the Constitution under section 75 for private land and sections 117 and 118 for unregistered Trust Land. But the constitution only gives general guidelines. The detailed procedures for acquisition are elaborated under the “Land acquisition Act” in chapter 295 for private land and chapter 288 for unregistered Trust Lands.

Procedures under Chapter 295 of the “Land Acquisition Act”: In approaching expropriation, a formal request should be submitted to the “Commissioner of Lands” should be made by the benefiting authority, e.g. a municipal council in case of urban areas. Any other public body or Government may request for acquisition this way. 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 writes to the commissioner to that effect, and directs the Commissioner to acquire the land (Section 6(1)). The Commissioner will then give “Notice of Intention” to acquire the

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land (section 6(2)) in the “Kenya Gazette” side by side with the “Notice of Inquiry”. The public announcements are 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” mentions places and fixed dates when persons interested in the subject land are to submit their claims to the Commissioner of Lands or his appointee (a “Valuation Officer” also known as “Collector of compensation”) according to Section 9. Meanwhile, the Collector of Compensation is supposed to inspect the said land and value it for compensation. After the inquiry the Collector will issue and award depending on his own assessment and the representations of interested parties as submitted at the inquiry (Section 10 and 11).

The award is issued in a prescribed form, together with a statement form. The the prescribed form indicates 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 “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.

3.3.2. Compensation in case of non-relocation

The Kenyan law recognizes compensation for loss of property due to implementation of development projects. The law includes houses, crops and trees. It also requires fair compensation for loss of property through payment at market value. Five categories of Project Affected Persons (PAPs) are recognised, all of whom are treated equally according to the Kenyan laws:

Property owners, Business tenants, Residential tenant, Encroachers (using land), and Squatters.

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3.4. World Bank safeguards policy on Involuntary Resettlement

OP 4.12 is to be complied with where involuntary resettlement impacts on livelihoods, acquisition of land or assets, or restrictions to natural resources, may take place as a result of the project. This requires that both a Resettlement Plan and Resettlement Policy Framework be developed by the project taking care to inbuilt measures to ensure that displaced persons are;-

informed about their options and rights pertaining to resettlement;

consulted on, offered choices among, and provided with technically and economically feasible resettlement alternatives; and provided prompt and effective compensation at full replacement cost for losses of assets attributable directly to the project.

If the impacts include physical relocation, the resettlement plan or resettlement policy framework includes measures to ensure that the displaced persons are

provided assistance (such as moving allowances) during relocation; and

provided with residential housing, or housing sites, or, as required, agricultural sites for which a combination of productive potential, locational advantages, and other factors is at least equivalent to the advantages of the old site.Where necessary to achieve the objectives of the policy, the resettlement plan or resettlement policy framework also include measures to ensure that displaced persons are

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; and

provided with development assistance in addition to compensation measures, such as land preparation, credit facilities, training, or job opportunities.

All persons are covered under this policy regardless of legal title

As the project is demand driven, the exact location and design parameters are not know a priori. As such a Resettlement Action Plan (RAP) is prepared in project specific conditions where such action plans are required by the standards and processes contained in this document. Appendix 5 provides an outline of the contents of an RAP.

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3.5. Gaps between local and World Bank Policies on resettlement

Both the Kenyan and World Bank Policies on resettlement are similar in that they have a policy on how to handle resettlement. Key points of departure between both systems are as follows:-

The Kenyan Policy actually allows for a legal mechanism to trigger resettlement, the World Bank Safeguards would rather that Involuntary resettlement was avoided altogether. This avoidance principle is adopted for the OBA pilot project

While the Kenyan system advocates for compensation for land at market rates, OP 4.12 is in favour for in-kind replacement of lost assets to ensure that livelihoods of PAPs either remain unchanged or turn out better after the compensation.

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

the PAP, then the cash compensation will be based on the higher amount of either market or replacement value. For the purposes of this RPF, the use of replacement value, or market value, will mean the higher value of two options

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4. Chapter 4: Principles, Objectives, and Processes

4.1. Principles and Objectives

Any impact of the OBA Pilot CWPs on land and/or people (land acquisition, resettlement, and livelihood restoration of affected people) will be addressed in compliance with the laws of Kenya and with the World Bank safeguard policy in involuntary resettlement (OP 4.12). Where there are inconsistencies or discrepancies between Kenyan laws and the World Bank policy, then the World Bank requirements will be followed.

Compensation of project beneficiaries where there are land linked impacts will be by the CWP themselves. This is an explicit design principle of the OBA pilot project and as a result of the overall objective of reflecting the true costs of infrastructure to project beneficiaries. This principle is central to the relatively high levels of cost recovery in the project linked to the role of commercial microfinance funds in the financing arrangements.

An RPF is being prepared at the outset of the project given the demand based nature of sub-project design. As exact design details including size, extent and location are not currently known an RAP cannot reasonably be prepared. As such individual CWP sub-projects will require a RAP where land impacts are anticipated.

4.2. Minimization of Displacement

In line with the World Bank safeguard policy OP 4.12, displacement under the OBA Pilot will be minimised through the following design procedures:

Wherever inhabited dwellings may potentially be affected by a component of a sub-project, the sub-project shall be redesigned (facility relocation, rerouting) to avoid any impact on such dwellings and to avoid displacement/relocation accordingly;

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 households may not be sustainable in the long term, even if there is no need to physically displace this

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household, the sub-project shall be redesigned (facility relocation, rerouting) to avoid any such impact;

For major water works like storage facilities, minimization of land impact will be factored into site and technology selection and design criteria;

Costs associated with displacement and resettlement will be internalized into sub-project costs to allow for fair comparison of processes and sites and funded by own resources of the CWP but not by grant finance from the OBA pilot project);

To the extent possible, Project facilities will utilize public easements;

Pipelines, public taps, other linear infrastructures (power lines) required by the OBA Pilot will be routed inside existing right-of-ways (roads, streets, power lines) wherever possible.

4.3. Livelihood Restoration

World Bank safeguard principles require that compensation should never leave people affected by land take-over, worse-off than before take over. If anything, the opportunity for compensation should be used to make them better off than before.

Where impact on land use is such that people may be affected in the sustainability of their livelihoods, preference will be given to land-for-land solutions rather than sheer cash compensation. This applies to people who are not necessarily physically displaced but who are affected by a land loss that affects their sustainability.

Where necessary, affected people will be monitored in the rehabilitation of their livelihood, during and after the transition period. Monitoring can then determine if additional mitigation measures are needed to restore PAP’s standard of living to pre-project levels.

4.4. Compensation principles will apply as follows: -

Compensation shall be paid prior to acquisition or displacement; Compensation will be at replacement value (as required by World

Bank policy) or market value (as stated in Kenyan law) whichever is higher. Compensation for structures shall include: the full cost of materials and labor required to reconstruct 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. The Compensation package will also include cost of moving, such as transport cost, as well as any associated land titling or transfer fees.

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5. Chapter 5: Managing the Land Acquisition Process

5.1. Generic aspects

The process to follow in acquiring or accessing land will depend on the tenure status. Thus the first step is to ascertain the tenure status of target land. The rest of process as illustrated in Fig. 5.1 will be as hereunder. Details are discussed in section 6.3

5.1.1. Environmental Assessments for Project Report Study:

Mitigation of land related impacts will be triggered by the Project Report Study conducted as part of the ESMF process should land be identified as a potential impact. The course of mitigation action will thereafter depend on the tenure of target land. Project reports are prepared in satisfaction of the governmental environmental assessment requirements. Requirements for these reports are included in annex 4. Appendix 3 contains a sample community screening form.

5.1.2. Investigation of tenure of target land:

The tenure system of the target land will be determined through enquiries at the respective District Land Registry followed by consultation with respective departments in case of government or trust lands. Also project area residents will be consulted during the area mapping which takes place as a part of the project screening.

5.2. Process of identifying PAPs

Where the Environmental Management Plan developed as part of the project report highlights land impacts as a risk to the project more detailed investigations will take place. Where only public land is identified by the EMP as required, direct application to the relevant authority for easements/ allotments will be made. A full census of residents will be developed as part of the overall project cycle. The census of area residents is captured in the community register assessment in the assessment phase of the project and a system mapping will be used to identify PAPs. Appendix 7 contains a sample form used to capture PAPs and their assets

Compensation will be preceded by an inventory/ census to identify diverse categories of PAPs to determine who will be impacted and thus eligible for assistance and benefits, and to discourage inflow of

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ineligible people. The public release of the survey findings will indicate the cut-off point at which no new/further claims will be possible. The CWP will hire a valuer to assess the level of asset loss as either temporary or permanent and assign economic values to them.

The inventory will be fully consultative taking the form of interviews, group discussions and review of existing documentary evidence (such as permits and licenses) for assets to be lost in the OBA Pilot in line with OP 4.12. There will be a review of whether the asset is individually owned or belongs to a group.

PAPs will then be classified depending on the kind of losses to be suffered. Several categories of potential PAPs are recognizable based on the category of loss. Requisite entitlement will depend on this loss category.

Construction activities which trigger OP 4.12 require RAPs to be prepared. This triggering is based on the census of project area residents and the construction plan for the project. Where RAPs are not required the provisions contained within the ESMF will stand.

Approval of RAPs – RAPs will be subject to public consultation at the district level. Copies must be forwarded to the relevant County/Municipal council and the district level representation of the Athi Water Services Board for endorsement. The World Bank will also have to endorse the RAPs.

5.3. Entitlements based on livelihood impacts

Entitlements will be defined in the project specific RAP which is prepared in accordance with appendix 5.

The course of action and compensation will be as illustrated in Table 5.1 and Fig 5.1 below.

i. Privately owned land: Entitlement will depend on the category of land.

Where the target land is the sole family possession and dwelling, its acquisition would trigger OB 4.12. As far as possible, the CWP will be re-designed so as not to interfere with the same.

Where only a small section of the land is required for project infrastructure, the scheme will apply for an easement in line with the Third Schedule of the water Act

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2002. Appropriate compensation and due process will apply.

Where the target land is not settled on and forms a small section of a land holding, after a search at the Land Registry, arrangements will be made to acquire the target land at market rates.

ii. Communally owned land: Mitigation will be as follows: - Where the land is occupied- say by squatters, such land

will be treated as private land and as far as possible, the CWP will be redesigned to avoid use of such lands. Only if absolutely necessary, the responsible Local Authority will need to re-settle the current occupants on another land, and the CWP will use this land only after the occupants have been fully settled with security of tenure on the alternative land and this resettlement has been independently verified as in line with this RPF and subsequent RAP.

Acquisition of free trust lands will be considered complete after issue of an allotment letter by the responsible Local Authority acting on minutes of a Full Council Meeting (FCM).

iii. Government land: Mitigation will be as follows:-

All settled GOK land will be avoided as it has potential to stall development of the CWP.

Target GOK land where free will be pursued with the Commissioner of Lands after exhaustive consultations with respective stakeholders.

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Table 5-2: Impact / Entitlement MatrixType of Impact Entitlement Responsible

AuthorityPrivate landSole dwelling Avoid acquisition as far as possible, or

apply land for land compensation followed by replacement of immovable assets at market or replacement cost, whichever is higher

CWP

Target plot is small portion of private land

Plot is purchased followed by replacement of immovable assets.

CWP

Target Plot has a running business

Conditions of Involuntary acquisition apply. Replace immovable assets and pay six months worth of business turnover.

CWP

Right-of-Way, ie. loss of certain usage rights

If the Right of way will impact on standing property such as dwellings, the scheme will be re-designed to avoid would be adverse impacts.

CWP

TrustlandsOccupied Plot Redesign Scheme to avoid such land, or,

apply land for land compensation, only acquiring the plot after fully compensating and settling occupants

CWP assisted by respective Local Authority (LA)

Unoccupied Plot CWP to obtain allotment letter from respective LA acting on minutes of a full council meeting.

CWP/LA

Crops on free plot Crop owners will be allowed to harvest the crops and alternate agricultural area of similar quality/ potential provided to the PAP.

CWP/LA

Government landBuilt-up plot Scheme redesigned to avoid such land.

Where this is not possible land will be acquired using compensation principles included in this document.

CWP

Unoccupied plot CWP to pursue allotment with the Commissioner of Lands

CWP/District Land Officer/Commissioner of Lands

Annual/ cash crops on free plot

Owners are allowed to harvest the crops and alternate agricultural area of similar quality/ potential provided to the PAP.

CWP

Permanent crop on GOK land

Compensation of lost income for a certain period of time to be determined following a survey of market prices or government gazetted rates (whichever is highest)

CWP

Figure 5-5: Generic Aspects of Compensation

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Trustlands

Individual Holding

GOK Land

Determine Land Tenure

As per the EMP, land to be impacted is identified

Environmental Assessment (Project

Report) Identifies a land impact

Eligible CWPsSelected

Redesign scheme, orLand for land replacementReplace immovable property

Purchase at market rateApply other compensation

Redesign project

Obtain allotment from FCM Apply IMP approved by NEMA

Obtain allotment from Commissioner of Lands

Trustlands

Individual Holding

GOK Land

Determine Land Tenure

As per the EMP, land to be impacted is identified

Environmental Assessment (Project

Report) Identifies a land impact

Eligible CWPsSelected

Redesign scheme, orLand for land replacementReplace immovable property

Purchase at market rateApply other compensation

Redesign project

Obtain allotment from FCM Apply IMP approved by NEMA

Obtain allotment from Commissioner of Lands

Trustlands

Individual Holding

GOK Land

Determine Land Tenure

As per the EMP, land to be impacted is identified

Environmental Assessment (Project

Report) Identifies a land impact

Eligible CWPsSelected

Redesign scheme, orLand for land replacementReplace immovable property

Purchase at market rateApply other compensation

Redesign project

Obtain allotment from FCM Apply IMP approved by NEMA

Obtain allotment from Commissioner of Lands

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6. Chapter 6: Compensation Procedure in Case of Involuntary Relocation

6.1. The Principles and objective

It is not anticipated that schemes under the OBA Pilot will trigger the need for involuntary acquisition of land.

As mentioned above, any sub-project that is assessed as potentially impacting inhabited dwellings or households’ livelihoods will be redesigned, resisted, or rerouted. Therefore, the OBA Pilot project is not expected to cause any resettlement, either through physical displacement (impact on dwellings) or economic displacement (impact on livelihoods).

CWPS will have a very limited footprint, and experience in rural water supply projects indicates that in most cases, communities are able to resolve land replacement issues, as long as the principles along which this must be done are made clear to them. In all cases, however, when necessary, CWPs will be responsible for compensating acquired land or impact on assets, including livelihood, in line with provisions made in this RPF.

Where and if Involuntary acquisition is required, either through dislocation of sole dwellings or relocation of squatters on either communal or state land, (or using but not dwelling on) in line with the spirit of OP 4.12, to the largest extent possible, and in order to safeguard livelihoods, in- kind compensation through replacement with land of equal or better potential will be preferred. The new land must be of similar agricultural/economic characteristics and similar surface or of greater surface if the agricultural/economical potential is less than that of the lost plot.

All impacts on land, structures and crops will therefore be mitigated through compensation, in-cash or in-kind, following asset valuation.

Experience in various countries has shown existence of a tendency to squander in- cash compensation by some recipients. Though this is the minority, it goes to strengthen the requirement for an in-kind compensation arrangement.

Options for items served as part of in-kind compensation can be as follows: agricultural equipment such as ploughs, hoes, etc… agricultural inputs (fertilizers, seeds, seedlings, etc…), construction materials and equipment, such as corrugated iron sheets,

cement bags, brick moulds, small tools, etc…, school equipment (books, stationery).

In-kind items will be valued at their purchasing price and will be factored in as a part of the compensation package.

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Compensation will be paid (or in-kind items delivered) prior to land being vacated or other assets being impacted.

6.2. Replacement cost for other assets

Public infrastructure: In-kind replacement within an agreed time schedule, or full compensation to the agency replacing the service is required e.g., public phone booths.

Cash crops: Arrangements will be made to allow for harvest or market value should be paid for lost cash crops. The annual market value of crops for the previous 3 years is deemed appropriate as crop compensation.

Other assets: Tube wells , fishponds, poultry houses, fences and other tangible assets will be replaced in kind (or with functional equivalents), relocated or be compensated at replacement cost.

6.3. Methods of Valuing affected Assets

In the case of the OBA Pilot, value for all land to be acquired for schemes will be fixed at least at the market rates. Valuation will be undertaken by an independent Registered Valuer acceptable to both parties but hired by the CWP. Typical valuation will be as follows: -

6.3.1. Valuation of land

To the largest extent possible, property owners surrendering a piece of land which is their sole possession will be compensated on a land for land basis under a negotiated agreement in which compensation for other property will also apply. Compensation to land owners eager to liquidate one amongst other properties will be on cash for land basis in a negotiated agreement.

6.3.2. Valuation of Immovable Property

The Valuer will adopt legally acceptable valuation procedures accepted by both the Government of Kenya and World Bank for purposes of fairness and consistency. This will consider replacement costs and market values, types and levels of compensation under the Kenya law. Valuation of lost assets will be made at their replacement cost or market value, whichever is the higher amount of the two. The replacement cost approach is based on the premise that the costs of replacing productive assets is based on damages caused by project operations. These costs are taken as a minimum estimate of the value of measures that will reduce the damage or improve on on-site management practices and thereby prevent damage. The approach involves direct replacement of expropriated assets and covers an amount that is sufficient for asset replacement, moving expenses and other transaction costs. This minimum value is then compared to the cost of new measures. This is arrived at, by analyzing current construction costs relative to design, materials employed, workmanship and final finish.

Schedule of rates from Ministry of Lands: The Materials departments have a schedule of rates (?Is this schedule of rates different from the contractors’ rate schedules?) for preparing estimates for construction projects, which the

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consultant can use to assess costs for construction materials and labor. When applied to calculation of replacement cost, rates current for the period of actual replacement must be used.

Rates from Contractors: When rate schedules do not exist or are out of date, recent quotations by contractors for similar types of construction in the vicinity of the project can be used for calculating replacement costs. In projects offering the options of cash compensation or alternative accommodation, the construction cost estimates for alternative accommodation could be used for calculating cash compensation payable. Actual build costs will be monitored to ensure that cash compensation relates to actual and not planned costs.

6.3.3. The Process of Valuing

A registered Valuer will visit the affected area. Each asset will be enumerated and inscribed on a questionnaire register. Values of each asset will be pre-printed, shown to the affected person, and set against the type and number of such losses that the individual will be shown, and the total of all losses as well. The inventory and evaluation will be signed and a copy given on the spot to the affected person. The form will say, and the affected person will be notified, that the inventory will not be official until a second signed copy, verified by project supervisory staff, is returned to the affected person. At this time, a copy of the grievance procedure will also be given to the affected person and the process explained. A sample form capturing the effects to PAPs is included in appendix 2.4.

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7. Chapter 7: Implementation Responsibilities

7.1. Responsibility for compensation

Table 10.1 above illustrated the entitlements due to diverse categories of PAPs depending on the nature of tenure of the target land. As per the Project Design, there are no explicit funds for compensation for supporting land acquisition. This is within the overall objective of the project to increase the level of capital cost recovery in sub-projects included in the project. Thus, wherever land or structures have to be compensated for, the responsibility will fall on the CWP. Therefore, the cost of the land acquisition, and associated compensation, then is a capital cost included in the investment amount.

Compensation for acquired private land: In line with Table 10.1, the responsibility for compensating PAPs falls on the CWPs.

Compensation for acquired trust lands: PAPs occupying target land will be resettled by respective Local Authorities, if possible. Even then, it is the responsibility of the CWP to ascertain that full resettlement with guarantees for security of tenure has been made.

Replacement of immovable properties: This will be the responsibility of the CWP.

Replacement of Social Infrastructure: This will be the responsibility of the CWP.

Under the Compulsory Acquisition Act, only the government can acquire land deemed to be required for designated purposes. Thus, if Compulsory Acquisition was to be invoked in the case of CWPs under the OBA Pilot, the Project becomes entirely a GOK affair. Further, involuntary resettlement has potential to trigger social and economic distress, precipitate opposition and has would most likely attract a full cycle EIA incorporating the statutory 60 day public review period. Thus even where Involuntary Resettlement does not stall the project, it has potential to slow down the process and reduce the economic viability of proposed schemes.

Given this scenario, the policy of this RFP is to favour redesign of all CWPs with potential to trigger resettlement. Table 8-1 describes the compensation and oversight responsibilities for different types of land actions.

7.2. Grievances redress mechanisms

Various legislations, including the constitution makes provision for grievances to be addressed through the formal court system. This is a constitutional right but practice has shown that this can be a costly and time consuming exercise. This Framework therefore proposes that the complaints and grievances

33

mechanism as outlined below is readily accessible to deal with complaints expeditiously. However if this fails the aggrieved party can refer the matter to the formal court system.

Objections

At the time that the individual resettlement plans are approved and individual compensation contracts are signed, affected individuals and households would have been informed of the process for expressing dissatisfaction and seeking redress. The grievance procedure will be simple and will be administered as far as possible, at local levels to facilitate access by PAPs.

All grievances concerning non-fulfilment of contracts, levels of compensation, or seizure of assets without compensation should be addressed to a local committee comprising traditional leaders of the affected area and representatives of the District Assembly.

All attempts should be made to settle, grievances amicably. Those seeking redress and wishing to state grievances would do so by notifying the local committee. The local committee will inform and consult with the Athi Water Services Board and the District Commissioner to determine validity of claims. If valid, the local committee will notify the complainant who will be assisted as appropriate. If the complainant’s claim is rejected, the matter shall be brought before the District Commissioner for settlement.

Compensation and resettlement plans (contracts) will be legally binding.

All objections to land acquisition shall be made in writing, to the Athi Water Services Board within 20 days after the public notice.

The traditional leaders and the local committee shall maintain records where grievances and complaints, including minutes of discussions, recommendations and resolutions made, will be recorded.

Consensus, Negotiations and Conflict ResolutionConsensus and negotiation are central to addressing grievances. In general, people are aware of their rights, their commitments to the country as citizens and their allegiance to village and family issues. For this reason, many Government funded community projects have been implemented without obstacles from project affected persons.

However some projects have been known to stall due to delays in disbursement of compensation; or sometimes even after getting the compensation the PAPs do not get possession of the acquired land in time. Prior negotiations, between Government representatives and project beneficiaries, are therefore crucial to the success or failure of the project. As a guiding principle emphasis should be placed on simplicity and proximity of the conflict resolution mechanisms to the affected persons and the following should be noted:

(a) negotiation and agreement by consensus will provide the best avenue to resolving any grievances expressed by the individual land

34

owners or households affected by community projects. These grievances shall be channeled through the traditional leaders;

(b) the implementing agency should ensure that any consensus is achieved freely by the main parties involved. The general public should be advised clearly by the implementing agency or the relevant government representative as to who is responsible for the process for handling grievances or compensation claims.;

(c) grievances should be addressed during the verification and appraisal process. If a suitable solution is not found, the implementing agency shall defer consent of the project and the concerned project activities shall not be allowed to proceed;

(d) grievances for which solutions have not been found should be referred back to the community for discussion where the traditional leader and District Commissioner will redress the matter of concern to assist the claimants. The mediation process will be implemented according to traditional methods of mediation/conflict resolution. The resolution will then be documented on the relevant consent forms and verified.

(e) if an agreement cannot be reached at community level the aggrieved party or parties shall raise their concerns with the Athi Water Services Board. Should grievances remain unresolved at this level, they can be referred to a court of law.

Table 7-3: Compensation Matrix with Grievances redress mechanismsType of Impact

Entitlement Agent responsible for compensation

Verification mechanism

Private landSole dwelling

Avoid acquisition, or apply land for land compensation followed by replacement of immovable assets at market cost

CWP AWSB

Target plot is small portion of private land

Plot is purchased at market rates followed by replacement of immovable assets.

CWP AWSB

Target Plot has a running business

Conditions of Involuntary acquisition apply Replace immovable assets and pay six months worth of business turnover.

CWP AWSB

Right-of-Way, ie. loss of certain usage rights

If the Right of way will impact on standing property such as dwellings, the scheme will be re-designed.If the landowner consents to the request for Easement, then compensation will be made at market rates.If the landholder fails to consent to the easement, conditions for involuntary acquisition apply.

CWP AWSB

Trust landsOccupied Plot Redesign Scheme to avoid such land,

or, apply land for land compensation, only acquiring the plot after fully settling occupants

CWP & Respective local authority

AWSB

Free plot CWP to obtain allottement letter from respective LA acting on minutes of a

N/A N/A

35

Type of Impact

Entitlement Agent responsible for compensation

Verification mechanism

full council meeting.Crops on free plot

Crop owners will be allowed to harvest the crops and alternate agricultural area of similar quality/ potential provided to the PAP

CWP AWSB

Government landBuilt-up plot Scheme redesigned to avoid such

land. Where this is not possible land will be acquired using compensation principles included in this document

CWP AWSB

Unoccupied plot

Scheme to pursue allottement with the Commissioner of Lands.

N/A N/A

Annual/ Cash crops on free plot

Owners are allowed to harvest the crops and alternate agricultural area of similar quality/ potential provided to the PAP

CWP AWSB

Permanent crop on GOK land

Compensation of lost income for a certain period of time (defined in the project RAP) to be determined following DAO guidelines

CWP As for annual crops above

36

8. Chapter 8: Monitoring Systems

8.1. Monitoring systems

8.1.1. Monitoring:

Monitoring of the RPF will be mainstreamed into the overall project monitoring system. Since land impacts will be captured in the EMP, implementation of compensation will be captured in the monitoring of the EMP by relevant oversight institutions (NEMA and WRMA). The generic EMP of the ESMF provides a detailed framework of issues indicators and responsibilities in monitoring the CWPs. The table in appendix 6 contains a generic monitoring plan for a given resettlement process.

8.1.2. Reporting:

Periodic reporting on the RPF will be captured as follows:-Project Reports as required by the Environmental Management and Coordination Act of 1999 - These will be prepared for each CWP by the SO for review by NEMA. The Project Reports will include a site specific EMP detailing the mitigation measures to be implemented under each scheme; including potential land, impacts, proposed mitigation and requisite safeguards.Annual Audit Reports: CWPs will develop an annual environmental and social audit report for review by NEMA and the World Bank. The report will include:• A summary of the environmental and social performance of the facility/enterprise vis a vis the initial environmental audit• A report on compliance and progress in the implementation of the Environmental Management Plan.• Specific details of progress in redressing land impacts and associated social impacts triggered by the Scheme.

37

9. APPENDICES:

Appendix 1: The Terms of ReferenceAppendix 2 List of Institutions visited and people interviewedAppendix 3: Screening Form for Community Water ProjectsAppendix 4: Terms of Reference for preparation of Project Reports under

Environmental Management and Coordination Act 1999 Appendix 5: Structure of RAPAppendix 6: Generic Monitoring Plan for CWPAppendix 7: Framework for the Inventory of PAPs and Assets

38

Appendix1: The Terms of Reference

Preparation of Environmental and Social Management Framework (ESMF) and Resettlement Policy Framework (RPF) for

the OBA pilot for community-managed water projects in Kenya

1. Background and Objectives The Global Partnership on Output-Based Aid (GPOBA) has approved a pilot project focusing on use of micro-finance for small water projects in the jurisdiction of Athi Water Services Board (AWSB). The K-Rep Bank is responsible for managing the contracting for this technical assistance.

The proposed assignment is for the preparation of an Environmental and Social management Framework (ESMF) and a Resettlement Policy Framework (RPF) for this pilot project. The main aim of the ESMF and the RPF is to establish clear methodologies for the screening of sub-projects, based on assessment of social and environmental impacts of the proposed GPOBA pilot project.

2. Scope of Work and Tasks

The scope of work includes the following main tasks to be carried out:

i. Review of the proposed project in terms of main components and area of influence to assess potential social and environmental issues – this will based on a review of documents, discussions with key project agencies. In addition the consultant will also have consultations with key stakeholders, including but not limited to the officials of AWSB, K-Rep Bank, Ministry of Water and Irrigation, NEMA and the consultant engaged by WSPAf to provide support services to the community sub-projects

ii. Review of the relevant national policy, administrative and legal framework (including specific legislation related to environment and water) in Kenya, and World Bank safeguard requirements

iii. Proposed environment and social plan, and related institutional responsibilities including: issues, mitigation measures and institutional responsibilities for implementation and monitoring and related capacity building requirements for each phase in the pilot project (pre-identification, detailed assessment and applications, and construction)

3. Outputs and Schedule

The assignment will be carried out from April 21 2006 to June 30 2006. The key outputs include:

Inception Report: (1 week after signing contract). Develop an inception report following a review of project documentation and orientation training session held by WSP-Af. The inception report will include a detailed work plan for all the three tasks and suggest any changes in the draft outline for the ESMF report in annex 1.

Draft final report: (3 weeks after the inception report). The draft report will include the proposed ESMF and RPF covering outputs from all the three tasks and as per the outline suggested in annex 1.

Final report: Incorporating feedback on the draft final report.

All reports will be in English and will be provided in electronic form as well as hard copies (3).

4. Consultant Qualifications and Level of Effort and Costs

39

The assignment is expected to require an individual consultant with at least 10 years of experience and following skills:

Environmental qualifications and experience in assessment of small water schemes in Kenya and good knowledge of relevant national policy and legislation

Previous extensive experience in work with community-managed schemes especially an understanding of social aspects

Experience with the World Bank safeguard systems

The total expected level of effort is about 30 person days. Travel and related costs will be paid as per actuals and reimbursed on the receipt of bills. World Bank and WSP-Af’s rules for travel policy will apply.

5. Management and Reporting

The consultant will report to Meera Mehta, task manager and Kameel Virjee of the Water and Sanitation Program.

40

Annex 1: Draft Outline for the Environmental and Social Management and Resettlement Policy Framework Report

Executive Summary

1. Introduction Project context and terms of reference

2. Description of the proposed pilot project Project scope and institutional arrangements Description of the Project Area Highlights of key social and environmental issues and how these are being

addressed

3. Description of policy and legal framework National Policy and Legal Framework

Environmental legislation Water Act (SPA, abstraction permit)

World Bank Safeguard Policies

4. Proposed framework for environmental and social management Role of Support Organization (SO) as environmental ‘Lead Expert’ Demand Responsive Sub-project Selection / Development SPA Monitoring of Sub-Project Performance

5. Proposed resettlement policy framework Review of national policies touching on acquisition/ resettlement/

compensation Institutional responsibilities and coordination Role of Support Organization (SO) Implementation process (including valuation)

6. Community consultation and capacity support arrangements Community support through SOs and Project Manager Empanelment and training of potential project managers by the WSPAf and

NWSB

ReferencesAbbreviationsList of persons/ organizations met

Annex 1: Outline of NEMA project reportsAnnex 2: Sub-project Screening criteria and related formatsAnnex 3: Monitoring formats

41

42

Appendix 2 List of Institutions visited and people interviewed

List of NGOs InterviewedPerson Organisation Section /

DesignationContact Remarks

NGOsMr. Henry Kamani

Techno-serve Programme Officer

P.O. Box 14821-00800 Nairobi. Tel )020 3754333/020 375 4334Fax :020 375 1028/Mobile: 0723773041

Partnering with ICRSAT and CRS to promote production and marketing of lucrative legumes. The idea is to work with CBOs for purposes of better management and effective marketing. Venturing into Machakos. Technoserve has not tried use of commercial funding to support community based water projects but is of the opinion that commercialisation of agriculture as proposed in the Lucrative Legumes project has potential to boost the success of commercially financed community water supply schemes.

Mr. Titus Wambeti

Vet Aid –VSF Europa

Project Coordinator-Project to Mitigate Impacts of HIV/AIDS in Agricultural Development

0722937321 Vet Aid is not familiar with use of commercial finance in supporting Community Water Supply. The organization’s activities are cantered on mitigation of impacts of HIV/AIDS in within clusters with high prevalence of orphaned and vulnerable children (OVCS) in Machakos District. Vet Aid-VSF helps orphaned children and families to boost food security and livelihood through supply of farm inputs, livestock and provision of strategic shallow wells in OVC clusters to boost access to water. Their concern is that water supply financed from commercial sources could be beyond the reach of OVCs.

Mr. Fanuel Odhiambo

Network for Water & Sanitation (NETWAS)

Senior Programme Officer

Magadi Rd.Tel: 020 890555/ 890553

Funds water projects in arid districts including Machakos and Makueni. The aim is to alleviate poverty by providing water to families living in ASAL areas that reciprocate by contributing land and labour for construction of water projects. Would be eager to learn from the lessons of the OBA Pilot in Kenya.

Mr. Peter Kinyanjui

Living Water International

Director was out of office spoke to Rose Ndaru – Programme Officer

P.0.Box 50839 00100, Tel. 530458. Email: Info@lwikenya.or.ke

Living Water International is involved in drilling for both communities and private operators. Have had previous contacts with a consultant Mr. Ndonde working for K-rep to develop the concept of use of commercial finance to support RCWs. As well LWI has had experience in drilling boreholes for community projects supported fairy through commercial borrowing. LWI thus supports such an initiative and has even been approached by prospective OBA schemes to provide cost estimates for borehole drilling and equipping.

Dr. Omanga Catholic Relief Services

Eng. Kinynjui Kaniaru was out of the office. Spoke to the Pogramme

P.O. Box 49675-00100Tel 4210000Email: crskenya@crsnairob

CRS has a Programme in water headed by Engineer Kinyanjui Kaniaru who was out of office. CRS also supports Soil and Water Conservation in Machakos and

43

Person Organisation Section / Designation

Contact Remarks

Officer, agriculture

i.org Makueni in collaboration with the Catholic Diocese and is keen on seeking collaborations in development of multipurpose water supply. The concept of building capacity for groups to attract commercial financing for water supply is highly attractive and has potential for success since collaborators of CRS are Catholic Dioceses who are quite coherent. CRS would wish to follow-up discussions on this issue.

Mrs Monicah Nyang

Farm africa Programme manager-Maendeleo Agric. Technology Transfer Fund.

Tel 273 2044/2732203Emails: Info2maendeleo-atf.org

Farm Africa works to transform ASAL agriculture through agricultural technology transfer. Main vessel is the Maendeleo Agriculture Technology Fund operating in Kenya Uganda and Tanzania. The NGO is currently supporting introduction of dairy goats in Mwingi and Kitui Districts and is also collaborating with CRS to support an agriculture project in Machakos district. The NGO is familiar with K-REP activities in advancing loans to groups to improve agriculture such as production of tissue culture bananas. The concept of advancing loans to groups for purposes of water supply is however quite new but in innovative. Feeling is that the managerial capacity of such groups should be development so as to enhance operational efficiency and economic viability.

CBOsMs. Zipporah Ndunda

Maka Widows Association

This is a CBO partnering with VSF to uplift the livelihood of widows and children in peri-urban Machakos District. The organisation helps the widows develop communal farming and has sunk shallow wells. It also partners with UNICEF and NACC to mainly guard and support AIDS and orphaned children

44

List of Individuals met and interviewedPerson Organisation Section /

DesignationContact

1. Dr Virjee Kameel World Bank - WSP Sector Finance +254 20 3226331 / 4

2. Dr Meera Mehta World Bank - WSP Sector Finance +254 20 3226331 / 4

3. Mr. Arthur Njiriri Kamandura Tarambana Water Development Society

Secretary +254 723 746193

4. Mr. Peter Nyutu Kamandura Tarambana Water Development Society

Member

5. Mr. Simon Mwaniki AWSB – Head Office Community Development Officer

Off: +254 20 2724292/3Cell: 0723 975646

6. Mr. Lucas Muchai Kanunga Self Help Water Supply

Member C/O Stephen Ngugi 0721264505

7. Ms Rahab Muthoni Kanunga Self Help Water Supply

Manager C/O Stephen Ngugi 0721264505

8. Mr. Michael K. Thomas

Rural Focus Ltd. Civil Engineer (Water Resources)

Off: +254 (0)62 32237Telefax:+254 (0)62 31321

9. Mr. Michael Gitonga

Rural Focus Ltd. GIS / Land & Water Management

Off: +254 (0)62 32237Telefax:+254 (0)62 31321Cell: 0722 624050

10.

Mr. Benson Kimithi KRep Bank Regional Business Manager

Cell: 0722 818061

11.

Mr. Vincent Saropa

Kerarapon Water Project

Secretary C/O Dr Mandieka 0733610392

12.

Mr. Michael Mayoni

Kerarapon Water Project

Staff – Operative C/O Dr Mandieka 0733610392

13.

Eng. Kyengo Ministry of Water & Irrigation

Project Manager – KWSSP

Maji House+254 20 2716103+254 20 2229261

14.

Eng. Muriga Ministry of Water & Irrigation

District Water Officer Kiambu District

+ 254 66 22804

15.

Mr Adika Ministry of Water & Irrigation

StaffKiambu District

+ 254 66 22804

45

Person Organisation Section / Designation

Contact

16.

Mr Lucas Ndung’u Ministry of Water & Irrigation

DSDO - Kiambu District

+ 254 66 22804

17.

Mr Mbugua Ministry of Water & Irrigation

Staff - Kiambu District

+ 254 66 22804

18.

Eng. Kimata Ministry of Water & Irrigation

District Water Officer Kajiado District

+ 254 45 21144

19.

Mrs. Elizabeth Ayuko

Attorney General’s Office

Senior State Counsel

+254 20 227461

20.

Mr Zephaniah Ouma

NEMA Senior EIA Officer +254 20 605522+250 724 253398

21.

Eng. Kingori Wathobio

Indepth Limited Programme Engineer

22.

Eng. Kamau H. Maina

Water Services Regulatory Board (WSRB)

Chief Executive Officer

+254 20 2733559

23.

Mr Eugen M. Mnyamwezi

Water Resources Management Authority (WRMA)

Catchments Management Specialist & GIS Modeler

+254 20 2732291

24.

C.B.K. Mbugua Water Resources Management Authority (WRMA)

Groundwater Specialist

+254 20 2732291

25.

Eng. Njoroge Plan International

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Appendix 3: Screening Form for Community Water Projects

(Fill in spaces provided or Grey shaded areas only when using a computer)Project Name                                              

Estimated Cost (Kshs)                                              

What is the Project Objective and Activities?                                              

Approximate Size of Project in Land Area (Acres)

                                             

How was the Proposed Site Chosen?                                              

Location Yes NoIs the proposed project site in an environmentally sensitive area (e.g., wetlands, forests, rivers) or threatened species that could be adversely affected by the project?

If yes, give details

Is the projected sited within a strictly protected area, national park, nature reserve, natural / historical monument, or area of cultural heritage?

If yes, give details

Will the project reduce people’s access (due to roads, location etc) to pasture, water, public services, or other resources that they depend on?

If yes, give details

Will the project involve relocating people or livestock from the site?

If yes, give details

Does the project require the community to own the land that the project will be located at?

If Yes, give details of land ownership and title / free deed number and when the land was acquired?If yes, give details

Impacts Yes NoDoes the project require large volumes of construction materials (e.g., gravel, stones, water, timber, firewood)

If yes, give details

Will the project lead to soil degradation or erosion in the area?

If yes, give details

Will the project affect soil salinity?

If yes, give details

Will the project create waste that could adversely affect local soils

If so, give details

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Is the topography of the area likely to cause the catchments area be silted by erosion upstream?

If yes, give details

Does the project have human and safety risks, during construction or later

If yes, give details

If there is any existing human settlement in the project area, is there a likelihood of contamination by human waste into the project area?

If yes, give details

Does the project have potential to indirectly or directly introduce or encourage the use of pesticides?

If yes, give details

Does the project have potential to indirectly or directly introduce or encourage the use of pesticides?

If yes, give details

Will the project result in conflict or disputes among communities or pastoralists?

If yes, give details

Will the project lead to migration into the area?

If yes, give details

Will the project lead to changes in the distribution of people or of livestock?

If yes, give details

Will the project adversely affect any indigenous living in the area?

If yes, give details

Will the project affect the livelihoods and rights of women and children?

If yes, give details

Alternatives:Is it possible to achieve the objectives above in a different way, with fewer environmental impacts? If yes, describe these alternatives, and state why they have been rejected.                                                                                     

ConclusionSummarize the above:

All above answers are ‘No’ If all above answers are ‘No’, there is no need for further action

48

If there is at least one ‘Yes’

Which course(s) of action do you recommend? No further action

EIA

Mini-pest management plan

If your recommendation differs from the above guidance, please explain why.

                                                                                                                                                                          

Completed By:                                                   

Name:                                                   

Position:                                                   

Date:                                                   

If there is at least one “Yes’, an EIA is required. If the Community Water Project has the potential to result directly or indirectly in the introduction or use pesticides, then a mini-pest management plan should be prepared.

49

APPENDIX 4: TERMS OF REFERENCE FOR PREPARATION OF PROJECT REPORTS UNDER EMCA 1999

1.1 Terms of Reference

A Project Report will be prepared for each individual CWP in line with Legal Notice 101 of June 2003. Section 7(1) of Part 11 of the Legal Notice 101 specifies the contents (scope) of the project report as follows: A proponent shall prepare a project report stating: -a) The nature of the project;b) The Division of the project including the physical area that may be affected by the

project’s activities;c) The activities that shall be undertaken during the project construction, operation

and decommissioning phases;d) The design of the project;e) The materials to be used, products, by-products, including waste to be generated

by the project and the methods of disposal;f) The potential environmental impacts of the project and the mitigation measures to

be taken during and after implementation;g) An action plan for the prevention and management of possible accidents during the

project cycle;h) A plan to ensure the health and safety of the workers and neighbouring

communities;i) The economic and socio-cultural impacts to the local community and the nation in

general;j) The project budget;k) Any other information that the Authority may require;- In which case, it is now a

requirement by the Authority for all Project Report to provide evidence of widespread consultation in the Project Area.

1.2 Outline of the Project Report:

Preparation of a Project Report will follow a the format below:-

EXECUTIVE SUMMARY This summarises the contents of the Project/ EIA Report from Introduction to Recommendation including the cost of the Project.

Chapter 1: Introduction. This chapter gives the background information relevant to the project and describes the objectives and requirements of the study. The project background will give the following information:

History of the project Parties involved Projects Objectives: the goals and specific objectives of the project. Justification of the project A description of the project area Relevant policy, legislative and planning framework Identification of associated projects, or any other planned within the region

which may compete for the same resources The project products, by-products and processes at both implementation and

operation phases Resources required for successful implementation and operation of the project A brief history of the project including the options considered

Chapter 2: Policy, legal and administrative framework. This chapter outlines the Kenyan policy on the environment, the relevant legislation relating to

50

natural resource management and environmental protection and the institutions that deal with various aspects of environmental management.

Chapter 3: Description and justification of the project. This chapter summarises the key project activities and presents a brief justification of the project, its purpose and the needs to be fulfilled by the project.

Chapter 4: Alternatives to the project. This chapter presents the various alternatives considered to reach the project’s objectives, including the “no action” option.

Chapter 5: Description of the existing environment. This chapter provides a description of the existing environment in order to provide an understanding of the bio-physical and social environmental setting. Description of the project area, ecological zoning as well as the state of environment in the project area and its surrounding should be given. It should also be established whether the current environmental condition is in its natural state or it has already suffered degradation. If the latter is true, the causes of the original degradation should be established and if possible, the state of the environment before the observed degradation.

Chapter 6: Public consultation. This chapter outlines the actions undertaken to consult the affected groups and other concerned key stakeholders. It also presents major findings and outcomes of public consultations. It should be spelt out how the affected community will be involved in the project formulation either through public meetings “barazas”, questionnaires and direct interviews depending on the interest groups identified at the initial environmental impact assessment.

Chapter 7: Potential impacts and mitigation measures. The first part of this chapter presents the analysis of beneficial and adverse impacts of the project on the biophysical and human (social, cultural and economic) environments. The analysis covers anticipated impacts during the construction and operation phases.

The second part identifies and briefly describes the enhancement and mitigation measures proposed to enhance benefits or prevent, minimize, mitigate or compensate for adverse impacts.

Chapter 8: Environmental and social management. This chapter summarises the impacts and suggested mitigation and identifies roles and responsibilities for environmental and social management during project implementation. Recommend feasible and cost-effective measures to prevent or reduce significant negative impacts to acceptable levels.

Chapter 9: Environmental and social monitoring. This chapter presents the surveillance and monitoring activities proposed in the environmental and Social Management Plan prepared for the project. Design a monitoring and evaluation criteria for the project. This should give provisions of parameters that require to be monitored, as well as the frequency of monitoring, data gathering, site visits to verify implementation status. At the monitoring stage, areas of difficulties should be identified and remedial actions drawn in order to address the problems before advancing further with project implementation. The responsibilities of evaluation exercise should be defined. Evaluation should be done to

51

validate the monitoring data and should be used as management tool for decision making.

Chapter 10: Conclusions and Recommendations. The conclusion briefly presents the environmental and social acceptability of the project, taking into account the impacts and measures identified during the assessment process. The conditions for acceptability.

APPENDICES

1. Terms of Reference2. List of Experts3. Supportive information regarding public consultation4. References5. Project Photos

1.3: Considerations in Executing the Project Report Study

Project Reports will be prepared by the SO who is a NEMA-registered Lead Expert.

Project Reports will be submitted to NEMA through filling of Form 1 duly signed by the Lead agent and the CWP. To Form 1 should be attached ten copies of the Report and a NEMA fee equivalent to 0.1% of the Project Cost as per Bills of Quantity Items alone. Cheques are [payable to the National Environmental Management Authority.

Among key outcomes of the Project Report Study is an EMP to guide impact mitigation and other environmental management.

All mitigation recommended for the Civil Works stage will be captured in the contract for construction to ensure implementation during this phase.

52

Appendix 5: Structure of RAP

1) Census of project affected persons and valuation of assets.

2) Description of compensation and other resettlement assistance to be provided.

3) Consultations with displaced people about acceptable alternatives

4) Institutional responsibility for implementation and procedures for grievance redress.

5) Arrangements for monitoring and implementation and,

6) A timetable and budget

53

Appendix 6: Generic Monitoring Plan for CWP

Item No

STAGE OF WORK

KEY ACTIVITY Time Responsible Person/Institution

Monitoring Institution

1.0 Project Planning Setting up an effective administrative reporting system Athi Water Services Board

Water Services Regulatory Board (WSRB)

ISP concept/objectives studied and understood by key stakeholders

AWSB WSRB

Resettlement Policy Framework discussed with stakeholders AWSB WSRBProject authorities and stakeholders alerted on the necessity for land acquisition and resettlement.

AWSB WSRB

Community involvement, sensitization and participation initiated

AWSB WSRB

2.0 Land acquisition Community involvement, sensitization and participation County Council (CC) PMUScreening of project sites indicating areas of possible resettlement

CWP AWSB

Prepare maps for the affected areas CWP AWSBObtain land authorization CWP AWSBSet cut-off date AWSB WSRB

3.0 Socio-economic Survey

Community involvement, sensitization and participation AWSB WSRB

Identify affected persons, party or homestead and register their names in detail

CWP AWSB

Estimate the magnitude of the impacts relative to the need for resettlement and/or compensation

CWP AWSB

Compile land register CWP AWSBCarry out valuation of CWP AWSBReport any grievances that require resolution PAPs/ CWP AWSB

4 Resettlement/compensation

Community involvement, sensitization and participation AWSB WSRB

Provide information about the valuation and negotiation AWSB WSRB

54

process Prepare RAPs CWP AWSBAuthorization of project and RAPs AWSB WSRBFormulate compensation offers and obtain signed agreements with those affected

CWP AWSB

Provide alternative land (if applicable) inclusive of ancillary support services such as transport, housing, crop starter packs and food support

CWP AWSB

5 After Resettlement Activities

Draw up a programme for after resettlement activities CWP/AWSB WSRB

Provide Resettlement After-care Assistance CWP AWSBCarry out monitoring activities PAPs/ CWP AWSB

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Appendix 7: Framework for the Inventory of PAPs and Assets

AFFECTED PLOT SHEET

Scheme name: Land Register No. District: Division: Location: Sub location:GPS Coordinates:Surface:Description of soil:

Perennial Crops: 1 Owner:2 Owner:

Annual Crops: 1 Owner:2 Owner:

Trees: 1 Owner:2 Owner

Structures: Channels: Owner:Anti-erosive structures: Owner:

Buildings: Owner:

Users: User 1:Surface used: Regime of tenure:User 2:Surface used: Regime of tenure:User 3:Surface used: Regime of tenure:User 4:Surface used: Regime of tenure:

Valuation proposal (details of calculation on attached sheet):Land usufruct:Crops:Structures:

Proposed distribution of compensation:User 1:User 2:User 3:User 4:Date: Prepared By:

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AFFECTED BUILDING SHEET

Scheme Name:Map Sheet: Land Register No.District: Division: Location: Sub locationGPS Coordinates:Owner: Address:

Description:Permanent Non permanentSurface: Number of rooms:Walls: Material ConditionRoof: Material ConditionFloor: Material ConditionAnnexes outside: Latrine: Bathroom: Kitchen: Others:Additional features:

Permanently Inhabited: By: Regime of occupation:Periodically Inhabited: By: Regime of occupation:

Valuation proposal (details of calculation on attached sheet)::

Proposed distribution of compensation:User 1:User 2:User 3:User 4:

Date: Prepared By:

57

AFFECTED HOUSEHOLD SHEET

Household Reference: Name of Head of Household :Location: District: Division: Location: Sublocation:

Reference of Affected Asset:Type: Structure Plot CropReference of Affected Asset Sheet:Location: District: Division: Location: Sublocation:

Household Information:Head of Household: Name: Age: Sex:Identity Document: Type: Number:Composition of Household:

Number

Name Relationship with Household Head

Sex Age

Socio-Economic Information:Occupations:Head of Household:Other members of Household:Number: Occupation:Number: Occupation:Number: Occupation:Number: Occupation:Total Estimated Household Cash Income:Education level of Household Members:Number: Level:Number: Level:Number: Level:Number: Level:Project Impact:Assessment of the Impact of the Loss of the Affected Asset on Household’s Livelihood:

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Proposed Compensation or Resettlement PackageHousehold’s Wishes

Proposed Package

Proposed Livelihood Restoration Package:Household’s Wishes

Proposed Package

59

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