Court dismisses suits challenging construction of Sh35b dam

Itare dam in Kuresoi. [Harun Wathari, Standard]

Construction of the multi-billion shilling Itare Dam will go on after a court dismissed three petitions against the project.

Environment and Lands Court judges dismissed the applications seeking to stop the construction of the Sh35 billion dam on grounds that they lacked merit.

The Luo Council of Elders, a non-government organisation and the Kipsigis Council of Elders had filed separate suits to challenge the construction of the dam.

The elders and the NGO had sued the Cabinet secretaries for Water and Irrigation, and Environment and Natural Resources.

Also sued were the Rift Valley Water Services Board, the National Environment Management Authority (Nema) and the Attorney General.

In their suit, the elders claimed that construction of the dam inside the Mau complex would lower water levels and turn Kericho, Bomet, Migori and Kisumu counties into dry lands.

Five other counties - Nakuru, Narok, Nyamira, Homa Bay and Kisii - were enjoined in the case as interested parties.

The petitioners argued that the dam would adversely affect up to 10 million people and future generations.

The elders also told the court that the matter touched on the relationship between the East African countries.

Public participation

They also claimed there was no public participation by stakeholders and communities in the area who were likely to be affected by the construction and wanted the court to declare the project a breach of the rules of natural justice.

The elders claims were however disputed by Rift Valley Water Services CEO Japheth Mutai who, in his affidavit, said there was adequate public participation.

And Nema told the court that it had conducted an Environmental Impact Assessment and published a report.

According to Nema, the report was published in the press and stakeholders were invited to submit their views.

Justices John Mutungi, Kullow Mohamed and Dalmas Ohungo unanimously ruled that there was adequate public participation on the project.

Claims by the elders that they were denied access to information were disputed as the court ruled that all stakeholders could access information through print and broadcast media.

The court ruled that the nine county governments in the suit aired their concerns too late and that the elders and the NGO had failed to demonstrate how their right to a clean and healthy environment was violated.

The judges also ruled that the construction would not violate any regional treaty.

They noted that the land the dam was being built on belonged to the public and that 12 homesteads that had encroached on the area could not claim ownership as evidence presented in court showed the land had been set aside for the project.