Appeals court suspends Sh1.76bn Lapsset compensation

The court of appeal has suspended an order requiring the government to pay Sh1.76 billion in compensation to 4,600 fishermen in Lamu County affected by the Lamu Port South Sudan, Ethiopia Transport (Lapsset) project.

Appellate Judges William Ouko, Daniel Musinga and Stephen Gatembu Kairu suspended the implementation and execution of orders by four High Court judges requiring the government to compensate the fishermen whose livelihoods will be affected by the project.

Certifying as urgent the appeal filed by lawyer Cecil Miller for the Kenya Airports Authority (KPA), the judges said the judges of the lower court gave orders which had not been pleaded.

Judges Ouko, Musinga and Kairu further suspended proceedings in the High Court pending determination of the appeal by KPA.

Urging the judges to allow the appeal, Mr Miller said the four judges abrogated themselves the responsibility of monitoring the implementation of their judgement.

“The high court judges erred in law and in fact in directing a progress report be filed within six months of their judgement when the court upon pronouncing its decision became functus officio (not a party) to proceedings any more,” Mr Miller told the appeal judges.

NEMA

He added that the judges conferred themselves functions of National Environment Management Authority (Nema) by giving conditions on the issuance of environmental impact assessment licence, a duty solely carried out by Nema.

Mr Miller further argued the four judges directed compensation be paid to Mr Mohammed Daadi Ali and others.

KPA has filed an appeal challenging the judgement delivered by Justices Pauline Nyamweya, Joel Ngugi, Beatrice Jaden and John Mativo on April 30, 2018.

Mr Miller told the appeal judges unless the judgement is stayed the High Court will continue receiving reports on implementations of its orders and a sum of Sh1.76 billion will be due for payment in April 30, 2019.

“With respect we agree that the appeal be heard in lieu of this application. We direct this appeal be heard February 2019 all the parties herein having filed and exchanged submissions,” ruled judges Ouko, Musinga and Kairu.

They went further to direct: “ In the intervening period there will be a stay of the proceedings in the high court and execution of the decree/order pending the hearing and determination of the appeal in February 2019.”

The four-judge bench at Malindi ordered the government to make full payment within one year from the judgment date.

“Failure or delay to compensate them is unfair, discriminatory and a gross violation of their rights to their traditional fishing right and their right to earn a living,” said the judges.

The court directed the payment be done in line with the Project Proponent as identified in the judgment: “Fisheries Resource Valuation and Compensation: A Report for Consideration by Lamu Port and Coal Plant Power Generation Company in Lamu.”

The bench was delivering a judgment where fishermen, led by Mr Mohamed Ali Baadi had challenged the Sh2.6 trillion Lamu Port-South Sudan-Ethiopia (Lapsset) project.

The fishermen who had presented environmental experts to testify in the case filed in 2012 argued that the ongoing dredging at the Indian Ocean in Lamu for the construction of Lamu Port has destroyed mangrove forests, sea grass, and coral reefs which are fish and turtle nesting areas..

“Failure to have prior consultation with the indigenous community in Lamu Island about the potential cultural impacts of the Lapsset project on the culture of the Lamu Island was a violation of the petitioner right to culture…,” said the judges.

The judges also said the government violated the petitioner’s right to culture by failing to draw up a plan to preserve the island as a Unesco World Heritage site.

“That the government is hereby directed to draw up a Management Plan to preserve Lamu Island as a Unesco World Heritage site as requested by various declarations by Unesco within a year from today,” they said.

The judges also directed Attorney-General Kihara Kariuki to report to the court on the progress of a plan to preserve the island as a Unesco heritage site within six months.