Big clash over climate change compensation goes to court

Flooded village near Lake Baringo, August 8, 2020. Hundreds of people were displaced and property destroyed. [Joseph Kipsang, Standard]

Kenya will next week hold the Africa Climate Summit as the debate on compensation for climate change victims continues. The debate has since spilled over to court, with a section of victims suing the government and various agencies over the loss.

Kituo Cha Sheria and Reuben Chepkonga, on behalf of 66 victims, filed a suit at the Environment and Lands Court in Iten in September 2022. Through lawyers Dr Omondi Owino and John Mwariri, the victims sued the government for the impacts of climate change flooding in Lake Baringo.

Chief Justice Martha Koome appointed Judges Lucy Waithaka, Elijah Obaga and Jane Onyango to hear and determine the case, following an application by the victims.

They argued that despite Kenya being a signatory to treaties, including the UN Framework Convention on Climate Change 1992, the Kyoto Protocol 1997, the Paris Agreement 2015 and the African Charter on Human and People’s Rights 1981, among others, it has failed to mainstream climate change responses.

They also blamed the government for failing to build their resilience and adaptive capacity to the impacts of climate change. 

They claim that members of the Ilchamus and Tugen communities are living in misery after their homes and properties were swallowed by the swelling Lake Baringo.

The locals claim that in May 2020, the water levels rose to unprecedented levels and submerged roads, agricultural fields, grazing areas, at least seven schools, health facilities and several centres.

They said they lost seed maize and about 5,000 acres of land, and were displaced from their ancestral lands. Some are now internally displaced persons at Sirinyo IDP camp.

The petitioners claim that the swelling lake resulted in the loss of over 300 goats for every household. Attacks by wild animals also increased as a result of the shrinking habitat.

They named the Cabinet Secretary (CS) Ministry of Environment and Forestry, National Environment Management Authority (Nema), CS Ministry of Transport, Infrastructure, Urban Development and Public Works, County Government of Baringo, CS Lands, National Land Commission and Land Settlement Fund Board of Trustees as respondents in the case.

Both the national and the county governments have disputed the claims by the over 60 residents of Bartum and Il’ngarwa locations in Marigat, Baringo County.

Nema has since filed a response disputing the claims by the residents. The authority says it has not denied, violated, infringed nor threatened to continue denying, violating and infringing on the petitioner’s Constitutional rights and freedoms.

It further denied that it had neglected and or refused to integrate climate risk and vulnerability assessment contrary to Section 20 of the Climate Change Act as alleged by the residents.

The authority, through its director general Mamo B Mamo, said climate change and its impacts are of global concern and Kenya, like many developing countries, was vulnerable.

“Climate change is transboundary in nature and even if the ills complained of by the petitioners were caused by climate change, which is denied, loss and damage liability arising therefrom would not lie on a single government or country,” said Mamo, in a replying affidavit filed on May 22, 2023.

Baringo County Government, in a replying affidavit sworn by county secretary and county head of public service Jacob Chepkwony termed the petition as alarmist, misconceived and an abuse of court process. The county says the rising waters on Lake Baringo is a phenomenon purely attributable to climate change.

“The 5th Respondent (County Government of Baringo) is also a victim. Lake Baringo was a major tourist attraction until the water levels rose and the 5th Respondent has lost revenue,” said Chepkwony.

The case will be mentioned on September 27.