- The NLC, however, directed that Lake Agro will have control of the 3700 Ha for 59 years
- NLC in their verdict argue that regardless of how long the duration of a lease may be; it cannot give total ownership rights to Lake Agro.
The National Lands Commission has granted 66 years lease period to Lake Agro Limited to grow sugarcane in the nutrient-rich Yala Swamp.
This is according to the NLC final determination which was published on the commission's website and social media pages on Thursday morning.
The report is similar to the one that had been leaked to the public a week ago.
The determination follows the June 14- 16, 2022, public hearings at a Siaya hotel by the NLC Land Administrative and Management Committee on the objections relating to the intent to allocate Yala Swamp.
The committee was composed of commissioners Reginald Okumu (chairperson), Esther Murugi Mathenge (Vice Chair), Tiyah Galgalo Ali (member) and Prof James K. Tuitoek (member).
In their concluding remarks, the committee strongly recommend to NLC plenary to allocate up to 6763.74Ha(16,713.6 acres)to Jaswant Rai, the Lake Agro Limited investor, who has since begun operations on the wetland.
The expansive parcel given to Rai will include 3,700Ha(9142.9 acres) occupied by Calvin Burgess’ Dominion Farms and the contested 3,200Ha(7907.3) more that the investor had requested be added to him.
The land parcels given to Rai include the Usonga/Usonga/Block 1/7 (1036.6 acres) and Usonga/Usonga/Block 1/8 (6538.4 acres), and Usonga/Usonga/ Block 1/4 (9142.9 acres).
The NLC, however, directed that Lake Agro will have control of the 3700 Ha for 59 years because of the remaining 7 years of the existing Lease agreement with Dominion Farms.
In their presentation during the hearings, Lake Agro counsel Patrick Ogola had requested that the company be allowed a lease period of 99 years due to longer time and money needed to reclaim the swamp before any viable project can commence.
“The cost for reclamation is Sh300,000 per acre of land,” Ogola said.
He added that Lake Agro will not only plant sugarcane but also rice and extend CSR projects to the community.
The commissioners’ support to the requests of Siaya county government and Lake Agro Limited is contrary to the wishes of majority of the Yala Swamp community and conservationists.
A total of 18 organised groups and individuals did raise objections to the intention by NLC and the county government of Siaya to allocate parts of the swamp to an investor.
The objectors included the Yala Ecosystem Site Support Group, Yala Swamp Community Land Committee, Yimbo Ber CBO, Community Wildlife Committee, Bunyala Yala Ecosystem Site Support Committee and Yala Planning Advisory Committee.
Nature Kenya, Conservation Alliance of Kenya, Lake City Investment Company, Community Initiative Action Group Kenya, Hon Samuel Arthur Weya, and Col Wabwire Mabati.
Others were Yala ICCA, Edwin Ngonga Ogwe, Samaki Working Group, Yimbo and Alego Communities, Yala Swamp Indigenous Communities and 82 families (1968) on matters concerning Yimbo.
The objectors had argued that leasing the land for 99 years was equivalent to land grabbing thus denying the community their land rights.
The commissioners in their verdict argue that regardless of how long the duration of a lease may be; it cannot give total ownership rights to Lake Agro.
"It is therefore our finding that a lease period of 66 years is appropriate to allow the investor to recover the cost of the investment made, while allaying the fears of the community that the resource is being fully given away," the NLC determination reads.
Four objectors had insisted that the contested parcel is community land that they had been convinced to exit to give room for organised settlement in 1970.
But Okumu, Murugi, Galgalo and Tuitoek assert in the determination that the community had long lost ownership of the 6900Ha(17050.27 acres) swathe of land with respect to Article 63(2)(d)(iii) of the Constitution of Kenya 2010, which defines what a community land is.
They said that community land is that which was lawfully held as trust land by the county government, but not including public land held in trust by the county.
“… the subject area was set apart under the provision of the Trust Land Act (repealed). Under this law, the government had powers to set apart trust land,”explanation reads.
The setting apart, they pointed out, was done through gazette notices No 2570 of August 25, 1970 and 9819 0f 2006 and the Trust Land Act.
The commission says in the report that such setting apart of Trust Land, has never been challenged in any court of law as provides the Trust Land Act.
Therefore, it means that the setting apart of the 6900Ha changed it from Trust Land to Public Land, dwarfing claims of community ownership.
“This setting apart of trust land as provided for in the then applicable law effectively extinguished the claims of the Communities with respect to ownership of the land.”
The report further expounds that the portions set apart were subjected to subsequent planning for investment purposes and surveyed as parcel No Usonga/Usonga Block 1/ 4, 7 and 8.
The latest panel recommendations effectively retain 607.1Ha(1500.2 acres)of Block 1/1 for Yimbo community (to be held in trust by Siaya county), 254.81Ha( 629.6 acres) Block 1/2 for KWS and 607Ha(1499.93 acres) Block 1/3 for Alego community (to be held in trust by Siaya county).
NLC also maintains 1,684.31Ha of Block 1/5 and 991.5Ha of Block 1/6 be left to KWS for conservation purposes and 909.6Ha of Block 1/3 to be held in trust by Siaya county for the Usonga community.
The interests of the 82 families, with respect to the Historical Land Injustice Case No NLC/HLI/298/2018, is to be taken care of in Block 1/1.
Some of the objectors had argued that sugarcane, which the investor had resorted to, is a poor man’s crop thus it would escalate poverty in the area.
They had also asserted that sugarcane farming will lead to excessive absorption of ground water and use of excessive chemicals.
But while quashing that argument, the four NLC commissioners said that it may not restrict the use of the land because the allocation will be based on the user provided in the approved Development Plan.
“It is the mandate of other government agencies to monitor use of water, any chemicals and other farming resources,” they say, distancing themselves from such a jurisdiction.
The report encourages the investor and the devolved unit to adopt environmentally friendly sustainable industrial practices for sustainability and conservation of natural resources.
The quartet further underscore that Lake Agro has committed to grow not only sugarcane but also rice to boost job creation in the area.
On the appropriate sharing of swamp resources, the report directs stakeholders to adhere to the development plan to avoid human-wildlife conflicts and animosity against the investor and loss of biodiversity.
The report advises government agencies like Nema, KWS and WRA that they, at any stage of the way, will still legally have the opportunity to discharge their conservation and sustainable management of land-based resources.
The panel allayed fears of conservationists of the possibility of the rare Sitatunga antelopes getting extinct if an investor were to be allowed into Yala Swamp.
Their report points out that the Land Use Plan gives enough space for conservation and that the investor will not go past the portion demarcated for investments.
Mercy Ooga and Brenda Madialo are captured in the report asserting that the county assembly of Siaya was in agreement with the intention to allocate.
The duo said that the assembly prepared a report in 2015 approving the Land Use Plan of the largest freshwater swamp in Kenya.
The approval, Ooga and Madialo told NLC committee, was subject to Siaya county engaging NLC, assembly’s approval and surveys for proper demarcations on the disputed land.
The four commissioners aver that the county government conducted public participation and ensured due process to have the motion approved by the county assembly.
They added that the Physical Planning Act of 1996 gives the commission no mandate to hear and determine appeals of those aggrieved by decisions such as this (by the county government of Siaya).
It was only Charles Bala, who represented the Usonga community during the hearings, who agreed that Lake Agro be allowed to commercialise the swamp.
Bala cited the previous investor—Dominion Farms, whom he said had provided significant employment to the people on the farm from 2004 to 2018.
Bala noted that a new investor taking over would fill the economic void left in four major market centres of Yala Swamp, namely; Ratuoro in Kadenge sublocation, Daraja in Nyamonye sublocation, Sidundo in Nyadorera B and Uwasi in Sumba sublocation.
He also argued that Dominion through CSR via an MoU, saw the rise of facilities such as Odhuro and Genro primary schools and Ratuoro Health centre.
Burgess exited in 2018 ahead of the expiry of his 25-year lease term citing political interference.
The proposed allocation to a new investor, therefore, Bala asserted, presents a great opportunity to renegotiate the MoU and safeguard communal interests.
In a separate document seen by the Star – a Memorandum of Lease of Land - signed on behalf of Lake Agro Limited by Lake Agro General Manager Nevile Davies on September 20, 2022 shows that the investor is already on with CSR.
The memorandum hives off 60acres of the 3700Ha of the swamp within Texas area to 17 members of Yimbo community.
“…as part of CSR, it is desirous of leasing a portion of the said parcel of land…for a period of one cycle of maize crop and the lessees are desirous of leasing the same,” the MoU reads in part.
Yala Swamp is 20,756Ha(51289.2 acres) wide from the mouth of River Yala and extends along the northeastern shore of Lake Victoria in Siaya and Busia counties.
The part of Yala Swamp in Siaya county is approximately 11,953Ha(29536.5 acres).
The Land Use Plan by Siaya county and the Ministry of Lands segments the wetland into conservation, community and investment areas.