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Ministry of Education, Science & Technology, Kenya
VOLUME III
RESETTLEMENT POLICY FRAMEWORK
FOR THE KENYA EDUCATION SECTOR
SUPPORT PROGRAMME (KESSP)
Final Report
September 2005     www.erm.com



Ministry of Education, Science & Technology,
Kenya
Volume III:
Resettlement Policy Framework for
the Kenya Education Sector
Support Programme (KESSP)
Final Report
September 2005
For and on behalf of
Environmental Resources Management (UK)
Approved by: Dominic Waughray
Signed:
Position: Partner
Date: 19th September, 2005
This report has been prepared by Environmental Resources
Management the trading name of Environmental Resources
Management Limited, with all reasonable skill, care and diligence
within the terms of the Contract with the client, incorporating our
General Terms and Conditions of Business and taking account of the
resources devoted to it by agreement with the client.
We disclaim any responsibility to the client and others in respect of
any matters outside the scope of the above.
This report is confidential to the client and we accept no responsibility
of whatsoever nature to third parties to whom this report, or any part
thereof, is made known. Any such party relies on the report at their
own risk.



CONTENTS
1          INTRODUCTION                                                1
1.1        BACKGROUND TO THE PROJECT                                   I
1.1.1      PROJECT DESCRIPTION                                         1
1.1.2      DONOR FUNDING AND CONTRIBUTIONS                             1
1.1.3      APPLICATION OF WORLD BANK SAFEGUARD REQUIREMENTS            2
1.2        PURPOSE OF THE RESETTLEMENT POLICY FRAMEWORK                3
1.2.1      SCOPE OF LAND ACQUISITION AND RESETTLEMENT UNDER KESSP      3
2          POLICY PRINCIPLES AND OBJECTIVES GOVERNING RESETTLEMENT PLANNING  6
2.1        PRINCIPLES OF RESETTLEMENT PLANNING                         6
2.1.1      OBJECTIVES OF THE RESETTLEMENT POLICY FRAMEWORK             6
2.1.2      GENERAL PRINCIPLES                                          7
3          IMPLEMENTATION ARRANGEMENTS                                 9
3.1        ROLES OF KEY STAKEHOLDERS IN KESSP                         11
4          PROCEDURES FOR SCREENING AND APPRAISAL OF SUBPROJECTS      12
4.1        INTRODUCTION                                               12
4.2        IDENTIFICATION AND SCREENING OF SUBPROJECTS                13
4.2.1      SCREENING FOR INVOLUNTARYRESETTLEMENT                      13
4.2.2      BASELINE AND SOCIO-ECONoMIC DATA                           14
4.2.3      PREPARATION OF A SUBPROJECT RAP                            14
4.3        REVIEW OF SUBPROJECT RAPS                                  15
4.3.2      APPROVAL OF RESETTLEMENTACTION PLANS                       16
5          DEFINING THE LIKELY CATEGORIES OF PROJECTAFFECTED PERSONS AND ELIGIBILITY
CRITERIA                                                   17
5.1        IDENTIFICATION OF PROJECTAFFECTED PERSONS                  17
5.2        PROCESS FOR IDENTIFYING PAPS                               17
5.3        ELIGIBILITY CRITERIA FOR DEFINING VARIOUS CATEGORIES OF PAPS  18
5.3.1      CRITERIA FOR PAP ELIGIBILITY                               18
6          LEGISLATIVE FRAMEWORK                                      20
6.1        INTRODUCTION                                               20
6.2        OWNERSHIP                                                  20
6.3        EXPROPRIATION OF LAND FOR DEVELOPMENT                      21
6.3.1      PROCEDURES UNDER CHAPTER 295 OF THE LAND ACQUISITION ACT   22



6.3.2      PROCEDURES UNDER CHAPTER 288 OF THE LAND AcQUIsITIONACT    22
7          RESETTLEMENT ENTITLEMENT POLICY                            23
7.1        ENTITLEMENTS RELATING TO VARIOUS CATEGORIES OF IMPACTS     23
7.1.1      METHODS OF VALUING AFFECTED ASSETS                         23
7.1.2      COMPENSATION PAYMENTS FOR Loss OF PROPERTY                 24
7.1.3      REPLACEMENT COST FOR OTHER ASSETS                          26
7.1.4      RELATED CONSIDERATIONS                                     27
8          ORGANISATIONAL PROCEDURES FOR DELIVERY OF ENTITLEMENTS     28
8.1        PROJECT CO-ORDINATION AND MANAGEMENT                       28
8.2        COMPENSATION PROCESS                                       29
9          DESCRIPTION OF THE IMPLEMENTATION PROCESS AND ARRANGEMENTS  31
9.1        IMPLEMENTATION PROCESS                                     31
9.1.1      IMPLEMENTATION SCHEDULE                                    31
9.1.2      PREPARATIONAND REVIEW OF RAPS DURING PROJECTIMPLEMENTATION  31
9.1.3      ANNUAL PERFORMANCEAUDIT                                    31
9.2        CONSULTATIONS AND INFORMATION DISCLOSURE                   31
9.3        MECHANISMS FOR GRIEVANCE REDRESS                           32
9.4        BUDGET AND SOURCE OF FUNDING                               33
9.5        MECHANISMS FOR CONSULTATION                                33
9.6        SUPERVISION MONITORING AND EVALUATION                      34
9.6.1      ARRANGEMENTS FOR MONITORING BY IMPLEMENTING AGENCY         34
9.6.2      WORLD BANK SUPERVISION MISSIONS                            34
ANNEX 1: KEY DEFINITIONS FOR RESETTLEMENT POLICY FRAMEWORK



INTRODUCTION
1.i         BACKGROUND TO THE PROJECT
1.1.1       Project Description
The Government of Kenya (GoK), through the Ministry of Education, Science and
Technology (MoEST), has requested for donor funding to support the proposed
Kenya Education Sector Support Programme (KESSP). The KESSP has been
developed in order to enable the Government to achieve the vision for education
and training in Kenya, which is to provide 'Elimu bora kwa maendeleo' or 'Quality
education and trainingfor development'.
The overall goal of the KESSP is to provide a framework for the achievement of
the policy goals, targets and strategies outlined in the 2003 Education Sector
Reform Paper and the Sessional Paper No. 1 of 2005. This will be the basis upon
which the Government, MoEST individuals, communities, the private sector,
NGOs and development partners will jointly support the education sector for the
period 2005 - 2009.
The KESSP will focus on delivering a suite of 23 cost-effective investment
programmes that have measurable positive impact on access to, and quality of,
education in Kenya. A number of these programmes will include a component for
infrastructure construction or rehabilitation investment, which may result in the
acquisition of land and/or the displacement of people, such as primary school
infrastructure and the secondary education programme.
1.1.2       Donorfunding and contributions
The Government of Kenya is keen to attract investment into the KESSP from a
number of partners, including international financing institutions and donors.
Although development partner funding has not yet been finalised, it is likely that
the World Bank (USD 50m) and DFID (USD 100m) will be the major contributors
to the KESSP budget. Other partners active in the sector include the CIDA,
UNICEF, USAID, the EU, Government of Japan and the African Development
Bank.
DFID and the World Bank have agreed to jointly prepare project documents
related to financing of the KESSP. A suite of studies are therefore being
undertaken to inform the development of the World Bank's Project Appraisal
Document and the DFID Project Memorandum.
ENVIRONMENTAL RESOURCES MANAGEMENT                      MOEST, KENYA
1



1.1.3         Application of World Bank Safeguard Requirements
Under the World Bank's safeguard policies, the KESSP has been classified as an
environmental category B project which, according to the Bank's Operational
Policy (OP) 4.01: Environmental Assessment, requires an environmental assessment.
Following discussion with the World Bank and DFID, we understand that it has
been agreed that KESSP also triggers Operational Policy (OP) 4.12: Involuntary
Resettlement.
In order to address these requirements, the following documents have been
prepared:
Safeguard policy       Requirement              Purpose
Environmental           * Undertake a Strategic  * To identify any key potential
Assessment                Environmental and        environmental and social impacts
(OP/BP/GP 4.01)           Social Impact            associated with activities to be
Assessment (S-ESIA)      financed under the Project and to
provide recommendations on the
appropriate mitigation measures
needed to address them.
* To outline the process for screening
the subprojects to be funded under
Develop an              the infrastructure components in the
Environmental and        KESSP, including the WATSAN for
Social Guidelines        environmental and social impacts;
Manual                 * To provide reference guidelines for
environmental and social impacts,
mitigation measures, monitoring and
evaluation;
* To outline a training and capacity
building programme for
implementing the procedures
outlined in the Manual.
Involuntary             * Develop a Resettlement  * To outline the process for screening
Resettlement (OP/BP       Policy Framework (RPF)  the subprojects to be funded under
4.12)                                              the infrastructure components in the
KESSP, including the WATSAN for
potential land acquisition,
involuntary resettlement and impact
on livelihood;
* To outline a training and capacity
building programme for
implementing the procedures
outlined in the RPF.
ENVIRONMENTAL REsouRcEs MANAGEMENT                                   MoEST, KENYA
2



1.2          PURPOSE OF THE RESETTLEMENT POLICY FRAMEWORK
As indicated above, in line with the World Bank's OP 4.12, a Resettlement Policy
Framework (RPF) has been developed to address the potential land acquisition,
displacement and involuntary resettlement of individuals and communities,
and/or impact on livelihood, which may be induced by classroom construction,
refurbishment of the existing building stock, provision of boarding and teachers
facilities, water sanitation and sports facilities and other civil work under the
KESSP.
The objective of the RPF is to identify the principles and procedures to be
followed in order to compensate people who may be negatively affected by the
Programme so as to ensure that they will be assisted to improve, or at least
restore their living standards, income and/or production capacity levels to pre-
project levels. This framework is being prepared in parallel with an Environmental
and Social Guidelines Manual for the KESSP which will provide the appropriate
tools and mechanisms to screen subprojects for potential social and
environmental impacts. The Manual also recommends a programme under the
KESSP for training and capacity building in managing environmental and social
impacts associated with KESSP infrastructure activities.
It is expected that subproject screening measures proposed under the RPF will
ensure that no major land acquisition or resettlement related impacts occur.
As indicated in the OP 4.12 (par 29), "for each subproject included in a project that
may involve resettlement, the Bank requires that a satisfactory resettlement plan or an
abbreviated resettlement plan that is consistent with the provisions of the policy
framework be submitted to the Bankfor approval before the subproject is acceptedfor Bank
financing. "
Thus, for any subprojects requiring acquisition of land or other assets, mitigation
measures under an abbreviated RAP will be provided in consistency with this
framework.
1.2.1        Scope of Land Acquisition and Resettlement under KESSP
Three of the 23 investment programmes (IP) may involve land acquisition,
involuntary resettlement and/or impact on livelihood: the Primary School
Infrastructure IP, the Secondary Education IP and the Arid and Semi-Arid Lands IP.
(a) Primary School Infrastructure
In line with the above policy and strategies, MoEST has developed two primary
school infrastructure programmes, which aim to improve access to primary
education in Kenya over the next five years. These account for the majority of the
infrastructure investment. In order to implement these programmes effectively,
capacity building and monitoring and evaluation programmes will support them.
ENVIRONMENTAL RESOURCES MANAGEMENT                           MoEST, KENYA
3



The proposed investment programmes consist of the following components:
Table 1.2    Primary School Infrastructure Components
Component                Description
New Primary School        This programme aims to improve access by constructing of
Construction Component    new primary schools in areas where there is overcrowding
in existing schools and where there are no primary
schools. MoEST proposes a 5-year investment programme
to construct 148 new primary schools.
School Improvement Grants  MoEST proposes 5-year investment programme to provide
Component                 school improvement grants to about 4,000 primary schools
in the poorest districts in Kenya. In addition, about 900
schools with serious backlogs in infrastructure provision
will be assisted to construct approximately 4,500
classrooms, 9,000 toilets, upgrade water supplies and
provide a range of other school infrastructure depending
on the local needs. Some of the items that may be included
in the programme are improvement of existing permanent
and semi-permanent classrooms, toilets, storage rooms,
fences, water supply infrastructure, furniture and cooking
facilities.
Capacity Building and     The objective of this component is to build capacity at all
Support Component         levels in order to implement the primary school
infrastructure programme effectively. The Government
proposes a 5-year 3 phased investment programme to
enhance programme capacity at all levels from schools,
districts, provinces and headquarters. Activities to
implement the component will include (a) development,
printing and distribution of training guidelines, and (b)
training at all levels.
Monitoring and Evaluation  This component aims to ensure that the progress, quality
Component                 and impact of the school investment programme is
adequately monitored and evaluated. The system of
progress monitoring will be developed during the
programme design stage and will be undertaken by the
infrastructure investment management unit and funded
through the primary school investment programme.
Supervision will be undertaken, at least in part by the
private sector in order to ensure adequate capacity to
ensure adequate quality standards.
ENVIRONMENTAL RESOURCES MANAGEMENT                            MOEST, KENYA
4



(b) Early Childhood Development and Education (ECDE)
The ECDE programme includes a number of components. One of these
components aims to provide ECDE community support grants to 5,000 ECDE
centres in 35 districts with low access and high poverty levels. Each centre will
receive a 300,000 KShs in three instalments over five years. The grants can be used
to improve the existing infrastructure of ECDE centres, such as classrooms, toilets
and school furniture.
(c) Secondary Education
The Government will implement a number of initiatives to improve access to, and
quality of, secondary education. One of the objectives of the programme is to
expand access and reduce the cost of secondary education by 2010. An investment
strategy proposed to meet this objective is the construction of 4,000 classrooms in
ASALs and 1,000 classrooms in urban slums.
ENVIRONMENTAL RESOuRCES MANAGEMENT                          MOEST, KENYA
5



2           POLICY PRINCIPLES AND OBJECTIVES GOVERNING RESEITLEMENT
PLANNING
2.1         PRINCIPLES OF RESETTLEMENT PLANNING
Land tenure and involuntary resettlement are a highly sensitive issue in
community development and if not addressed adequately can easily become a
source of conflict for individuals and communities and give rise to severe
economic, social and environmental risks particularly in developing countries
such as Kenya.
Poor planning can result in: productive systems being impacted; impoverishment
to communities due to loss of productive assets or income sources; increased
competition for resources due to migration; and negative impacts on cultural
identity, traditional authority and community empowerment.
Hence, development of a resettlement framework is necessary to ensure that the
appropriate mechanisms are in place to avoid such impacts.
2.1.1        Objectives of the Resettlement Policy Framework
The principles outlined in the World Bank's Operational Policy (OP) 4.12 for
Involuntary Resettlement, being generally consistent with the basic objectives of the
Kenyan law under Sections 75, 117 and 118 of the Constitution, and specifically
Chapter 295 under the General Land Act have been adopted in preparing this
policy framework.
The principles and resettlement measures under the policy will apply to all
subprojects funded under the KESSP, whether or not the scale and complexity of
the resettlement issues requires preparation of a Resettlement Action Plan (RAP).
A Resettlement Policy Framework, as defined under the OP 4.12, is developed in lieu
of a RAP when it is highly unlikely that impacts can be identified prior to
subproject appraisal. This is usually the case with social development funds and
community driven development programs, in which subprojects have not been
identified at the early stages of project preparation.
The goal of the resettlement policy is to: "improve, or at least, restore, incomes and
standards of livingfor project affected persons. " (1)
The resettlement policy will apply to all displaced persons regardless of the total
number affected, the severity of the impact and whether or not they have legal
(1) World Bank. 2002. Resettlement and Rehabihtation Guidebook. Washington DC.
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA
6



title to the land. As guided by the World Bank's Operational Policy 4.20for
Indigenous People, the resettlement policy should pay particular attention to the
needs of vulnerable groups among those displaced, especially those below the
poverty line, the landless, the elderly, women and children, indigenous groups
and ethnic minorities or other displaced persons who may not be adequately
protected through Kenya's land compensation legislation.
2.1.2        General Principles
The general principles for the framework can be summarized as follows:
a) Resettlement and land acquisition will be minimized as much as possible. Where
land acquisition is unavoidable, the project will be designed to minimize adverse
impacts on the poorest segments of the population (e.g. those holding less than 1
ha).
b) Project Affected Persons (PAPs) will be compensated, relocated and rehabilitated,
if required, so as to improve their standard of living, income earning capacity and
production capacity, or at least to restore them to pre-Project levels.
c) All PAPs residing in, or cultivating land, or having rights over resources within
the Project area as of the date of the census survey are entitled to compensation
for their losses and/or income rehabilitation. Lack of legal rights or title to the
asset(s) taken for the Project will not bar the PAP from receiving compensation,
rehabilitation and relocation measures to achieve the objectives set forth under (b)
listed above.
d) Compensatory mechanisms to accomplish resettlement include: compensation at
full replacement cost for houses and other structures, agricultural land of equal
productive capacity, replacement of residential land at least of equal size and not
less than 200 sq. m., dislocation allowance and transition subsidies, full
compensation for crops, trees and other similar agricultural products at market
value, and other assets, and appropriate rehabilitation measures to compensate
for loss of livelihood.
e) PAPs forced to relocate due to their house being acquired will be provided full
assistance for transportation and re-establishment of their home and will be
provided a Dislocation Allowance, in addition to provision of residential land
and the replacement cost of their home.
f) Replacement residential and agricultural land will be as close in nature as
possible to the land that was lost, and acceptable to the PAP.
g) Where the total amount of agricultural land acquired is less than 20% of the PAP's
farm land for those with holdings more than 1 ha, and 10% of land for those with
ENVIRONMENTAL RESOURCES MANAGEMENT                           MoEST, KENYA
7



holdings less than 1 ha, cash compensation may be paid in lieu of land-for-land
compensation provided that:
i. the PAP receives full replacement value for the land and all assets on it,
without any deductions for depreciation;
ii. the PAP stands to benefit directly from the Project through an increase in
income which will off-set the loss of land, such that net production after
Project completion is equal to, or greater than, the pre-Project production;
iii.  prior agreement has been reached on acquisition of land through a
negotiated settlement at a rate acceptable to the PAP, at replacement value.
h) Above the thresholds provided in (g) above, land-for-land is the preferred option.
Land-for-land may be substituted by cash above the threshold provided that land
is not available in the proximity of the Project area; thus,
i.  PAPs willingly accept cash compensation for land, there is agreement from
all adult members of the PAP's immediate family that cash is the best option
for the family, and the cash is paid as in Section (g) above; and
ii.  cash compensation is accompanied by appropriate rehabilitation measures
which together with project benefits results in restoration of SPAF incomes
to at least pre-Project levels.
i) The resettlement transition period will be minimized, land-for-land and/or cash
compensation provided to the PAPs, and rehabilitation measures completed prior
to the expected start-up date of works in the respective sub-project.
j) Resettlement plans will be implemented following consultations with the PAPs,
and will have the endorsement of the PAPs.
k) The previous level of community services and access to resources will maintained
or improved after resettlement.
1) Any acquisition of, or restriction on access to resources owned or managed by
PAPs as common property will be mitigated by arrangements ensuring access of
those PAPs to equivalent resources on a continuing basis.
m) Financial and physical resources for resettlement and rehabilitation will be made
available as and when required.
n) Resettlement programs will include adequate institutional arrangements to
ensure effective and timely design, planning and implementation of resettlement
and rehabilitation measures.
o) Adequate arrangements for effective and timely internal and external monitoring
will be made on implementation of all resettlement measures.
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA
8



3           IMPLEMENTATION ARRANGEMENTS
MOES&T (in particular the Infrastructure Management Unit) will need to be
supported to turn the Resettlement Policy Framework we present here, into an
Action Plan, should the World Bank OP 4.12 be actually triggered during the
construction planning process, especially with regards to land acquisition.
It would probably be appropriate for Ministries with lead responsibilities in lands
or planning to take the institutional lead if this were to be the case, under the
overall strategic management of MOES&T. If representatives from the
appropriate Ministries are seconded to the IMU, then focused capacity building
and training for these individuals on OP4.12 and its associated issues and how to
use this Resettlement Policy Framework to create discrete and satisfactory
Resettlement Action Plans would be recommended.
In general, however, the implementation of the procedures in this Manual should
follow closely the institutional and coordination arrangements developed for the
KESSP as well as the procurement procedures outlined in the Procurement
Manual, as illustrated below:
ENVIRONMENTAL RESOURCES MANAGEMENT                        MoEST, KENYA
9



Figure 3.1     KESSP coordination, implementation and accountability structure
Source: Kenya Education Sector Support Programme 2005-2010, July 2005.
Education                 Minister of Education,            National Education
Stakeholders      -       Science and Technology              Advisory Council
Forum                                                          (NEAC)
Inter-Ministerial               Permanent                       Consultative
Commitee on                     Secretary          .        GOK/Development
Education and                                               Partners Committee
Training
_-                zI .
Education
KESSP Steering    4 -           Secretary
Committee                        I                     \
V         __Directors         4 -      |     SAGAs
KESSP            KESSP Management Unit
Reform                   Officers
Secr.
Provincial               Provincial Director
Education    -1-      X     of Education
Boards
I                             X
District                     District
Education         _           Education
Boards                        Officer
I                             X
BOGs/School                     Service Providers
Management                   (primary and secondary
Committees                schools, ECDE Centres, NFE
and Parents     4 -     |          Centres)
Teachers
Communities (children, women and men)
ENVIRONMENTAL RESOURCES MANAGEMENT                                      MOEST, KENYA
10



3.1          ROLES OF KEY STAKEHOLDERS IN KESSP
There are various stakeholders in the institutional set up of the KESSP. The
following table highlights those key stakeholders that will have an input into the
application of screening and appraisal procedures for the infrastructure activities.
Table 3.1    Institutional Roles of Key Stakeholders under KESSP
KESSP Stakeholder               Function
Provincial Education Boards (PEBs)  * Co-ordination of all programmes to eliminate
duplication of activities of the district
* Monitoring and evaluation
. Advising the District Education Officer
* Supervising District Education programmes.
District Education Boards (DEBs)  * Management of education services
* Teacher management
* School audit
* Supervision of education programmes
* Accounting for funds
* Quality assurance
* Resource mobilisation.
District Education Officers      * Coordination, administration, and
implementation of ECD programmes
Boards of Governors              . Ensuring official policies and guidelines are
adhered to
* Strategic management of the institution
* General oversight on delivery of education
programmes
. Planning
* Resource mobilization, utilization and
accounting
* Monitoring of education standards
Primary School Infrastructure    * Overall monitoring of Primary School
Management Unit                    Infrastructure Component
School Management Committees     . Develop and implement school plans
* Mobilise additional resources
* Implement government policies and
guidelines
Parents-Teachers Association (PTA)  * Monitoring implementation of school
programmes
* Monitoring education services
* Mobilising additional resources
ENVIRONMENTAL RESOURCES MANAGEMENT                            MOEST, KENYA
11



4             PROCEDURES FOR SCREENING AND APPRAISAL OF SUBPROJECTS
4.1           INTRODUCTION
Resettlement planning shall be mainstreamed into the KESSP design so as to
ensure that all development activities are appropriately screened for potential
impacts. The steps for resettlement planning are illustrated in Figure 4.1.
As indicated in the OP 4.12, for all subprojects included in a project, the Bank
requires that a satisfactory RAP or abbreviated RAP that is consistent with the
RPF be submitted to the Bank for approval prior to Bank financing. However, the
OP 4.12 (par 30) also suggests that:
"For certain projects, subproject abbreviated RAPs may be approved by the project
implementing agency or a responsible government agency orfinancial intermediary
without prior Bank review, if that agency has demonstrated adequate institutional
capacity to review resettlement plans and ensure their consistency with this policy. In all
cases, implementation of the resettlement plans is subject to ex post review by the Bank."
Figure 4.1    Resettlement Planning Process for Subprojects
No impact (no involuntary
rsettlement will occur)  H       Screening
Impact
Preparation of an RAP
or Abbreviated RAP and/or EIA
ENVIRONMENTAL REsouRCEs MANAGEMENT                                MoEST, KENYA
12



4.2           IDENTIFICATION AND SCREENING OF SUBPROJECTS
Subproject screening is used to identify the types and nature of potential impacts
related to the activities proposed under the Project and to provide adequate
measures to address the impacts. Screening for resettlement issues shall be part of
the environmental and social screening, as is detailed in the Environmental and
Social Guidelines Manual (Volume 2 of this report). Measures to address
resettlement shall ensure that PAPs are:
*   Informed about their options and rights pertaining to resettlement;
*   Included in the consultation process and given the opportunity to participate
in the selection of technically and economically feasible alternatives; and
*   Provided prompt and effective compensation at full replacement cost for
losses of assets and access attributable to the subproject(s).
4.2.1         Screeningfor Involuntary Resettlement
Subproject screening will be incorporated into the subproject application form
that the School Management Committee must submit as part of their local
development plan to the District Education Board. The goal is to identify and
consider resettlement issues as early as possible. The general guidelines to
determine whether a resettlement plan is required are as follows:
*   For subprojects that are determined to result in minor impacts, defined under
the OP 4.12, when "the affected people are not physically displaced and less than
10% of their productive assets are lost", then an abbreviated RAP is required.
*   For projects that may result in more significant impacts, i.e., physical
displacement of people, or more than 10% of their productive assets are lost,
then a RAP will be prepared. (1)
*   For projects not anticipated to result in displacement, and where loss of assets
are anticipated to be negligible, then this information shall also be indicated in
the subproject application form along with a request to waive the requirement
for an abbreviated RAP. The District Commissionerfor the Ministry of Lands and
Settlement shall determine in these cases whether an abbreviated RAP is
required for project approval.
(1) Under the OP 4.12, an abbreviated RAP is required for projects where impacts on the entire displaced population are minor,
or fewer than 200 people are displaced. However, under the KESSP activities, it is highly unhkely that resettlement will occur;
hence, in most cases, it is anticipated that an abbreviated RAP rather than a RAP will be required under the programme.
ENVIRONMENTAL RESOURCES MANAGEMENT                                  MoEST, KENYA
13



4.2.2          Baseline and Socio-economic Data
An important aspect of preparing a RAP is to collect baseline data within the
project targeted areas to better assess potentially affected communities. The
subproject application form will require an identification of PAPs on the
individual and household levels, with particular attention to vulnerable groups
(women, children, the elderly, female-headed households, ethnic minorities, etc.).
Baseline data for subproject RAPs will include: number of persons; number, type,
and area of the houses to be affected; number, category and area of residential
plots and agricultural land to be affected; and productive assets to be affected as a
percentage of total productive assets. A District Commissioner assigned to the
Ministry of Lands and Settlement will decide based on a review of this data,
whether or not a RAP, or abbreviated RAP, is required.
4.2.3          Preparation of a Subproject RAP
A RAP or abbreviated RAP (as required) shall be prepared by the Proponent (i.e.
School Management Committee) preferably with the support of technical service
providers, for subprojects that have been determined to result in potential
involuntary resettlement and/or land acquisition. When a RAP or an abbreviated
RAP is required, the Proponent shall submit completed studies along with their
RAP's subproject application to the District Education Board for appraisal, and
subsequently to the for District Commissionerfor the Ministry of Lands and
Settlement.
Detailed guidelines for preparing a RAP and an abbreviated RAP are available
one the World Bank's website and in the World Bank's Resettlement and
Rehabilitation Guidebook. As has been discussed, it is anticipated that the impacts of
the KESSP will be minimal, and an abbreviated RAP is more likely to be used.
The basic elements of an abbreviated RAP, as outlined in the OP 4.12, are
provided in Box 4.1. (1)
Box 4.1       Minimum requirements of an abbreviated RAP
o A census survey of displaced persons and valuation of assets
o A description of compensation and other resettlement assistance to be provided
o Consultations with displaced people about acceptable alternatives
o   Institutional responsibilityfor implementation and proceduresfor grievance redress
o Arrangements for monitoring and implementation
o Timetable and budget
(1) Detailed guidelines to preparation of a Socio-economic Baseline Survey and Resettlement Action Plan (RAP) are available on
the World Bank website, hto:! /essd.worldbank.org/sdv/euidebook/generic/gindex.htm and in the World Bank's
Resettlement and Rehabilitation Guidebook, 2002.
ENVIRONMENTAL RESOURCES MANAGEMENT                                   MoEST, KENYA
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4.3           REVIEW OF SUBPROJECT RAPS
As outlined in the Manual, the School Management Committee will prioritize their
needs under the KESSP.
Subprojects to be proposed by a Proponent will be approved by the District
Education Board. The Board will review eligibility for subprojects based on field
appraisals, which includes results of the environmental and social screening used.
For those subprojects which require an abbreviated RAP, the Proponent will be
assisted through service providers in preparing the required RAP and related
studies.
The RAP will be submitted once complete to the decentralized decision
committees for screening and approval in compliance with the project
institutional administrative arrangements.
It is anticipated that School Management Committees will not have the institutional
capacity to prepare RAPs or studies during the start of the programme and thus
will be assisted and supported by local service providers/NGOs. The Ministry of
Lands and Settlement should have representatives at the district level to provide
the necessary technical support required at this level. Table 4.1 outlines the
proposed support team.
Table 4.1     Proposed Technical Supportfor Resettlement Planning
Level of          Required Personnel  Responsibility
Administration
District          District Commissioner These officers will be knowledgeable in assessing the
for the Ministry of  need for resettlement action plans, and will be
Lands and Settlement familiar with the national laws. They will work with
the District Education Officers in reviewing and
approving RAPs/abbreviated RAPs produced for
subprojects under the KESSP.
District/community  Service pool of   A list of qualified consultants and/or civil servants
level             consultants/civil   will be made available to MoEST and the District
servants           Commissioners reviewing the appraising RAPs
submitted by communities. These individuals will be
familiar with land tenure policies and compensation
procedures in Kenya.
ENVIRONMENTAL RESOURCES MANAGEMENT                                 MOEST, KENYA
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Safeguard Compliance and Quality Assurance
For quality assurance, it is recommended that RAPs prepared for subprojects
during the first year be furnished to MoEST and the World Bank for review, to
ensure that the RAPs produced initially are in line with the OP 4.12. Gaps in
quality shall be addressed through training at the district level for relevant service
providers and reviewers, funded by the project as part of the budget for capacity
building. Subsequent RAPs prepared throughout the rest of the project can then
be reviewed by the Land Commissioners, with an annual independent review
process led by the PCU. At this point, World Bank clearance will not be necessary.
4.3.2         Approval of Resettlement Action Plans
After clearance from the District Commissionerfor Lands, the compensation,
resettlement and rehabilitation activities of the RAP will be satisfactorily
completed and verified by the communities before funds can be disbursed for
civil works under the subproject.
The EAs and RAPs developed for subprojects will also be reviewed to ensure
compliance with local regulations the Bank's safeguard policies. The criteria for
subproject approval are described in Box 4.2.
Box 4.2        Safeguard Criteria for Subproject Approval
O   The subproject has undergone an environmental and social screening in compliance
with the World Bank safeguard policies (OP 4.01, OP4.12 and other applicable
safeguard policies).
O An EIA has been carried out for projects with potential environmental and social
impacts.
O The need for land acquisition and legal title to land should be determined, and the
necessary measures to address these should be implemented.
U An abbreviated Resettlement Action Plan (RAP) has been prepared for subprojects
with potential displacement or land acquisition.
O The subproject in question should ensure that land acquired/required is not (a) in
disputed areas, (b) cultural property, (c) negatively affecting indigenous peoples, and
(d) is not in natural habitats or protected areas.
ENVIRONMENTAL RESOURCES MANAGEMENT                                   MOEST, KENYA
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5            DEFINING THE LIKELY CATEGORIES OF PROJECT AFFECTED PERSONS
AND ELIGIBILITY CRITERIA
5.1         IDENTIFICATION OF PROJECT AFFECTED PERSONS
Project affected persons (PAPs) are defined as "persons affected by land
acquisition, relocation, or loss of incomes associated with (a) acquisition of land
or other assets, and (b) restriction of access to legally designated parks and
protected areas." (1)
At this stage of preparation, it is not possible to quantify the estimated likely
number of PAPs since the subprojects have not yet been identified.
However, the likely displaced persons can be categorized into three groups,
namely:
i. Affected Individual - an individual who suffers loss of assets of investments,
land and property and/or access to natural and/or economic resources as a
result of the subprojects and to whom compensation is due. For example, an
individual is a person who farms a land, or who has built a structure that has
been demarcated for agricultural use and is now required by subproject.
ii. Affected Household - a household is affected if one or more of its members is
affected by project activities, either by loss of property, land, loss of access or
otherwise affected in any way by project activities. This provides for:
a) any members in the households, men, women, children, dependant
relatives and friends, tenants;
b) vulnerable individuals who may be too old or ill to farm along with the
others;
c) opposite-sex relatives who cannot reside together because of cultural
rules, but who depend on one another for their daily existence; and
d) other vulnerable people who cannot participate for physical or cultural
reasons in production, consumption, or co-residence.
5.2          PROCESS FOR IDENTIFYING PAPS
A census should be carried out to identify the persons who will be affected by the
project to determine who is eligible for assistance and benefits, and to discourage
the inflow of ineligible people. It will be necessary to assess the level of asset loss
(1) World Bank. 2002. Resettlement and Rehabilitation Guidebook. Washington DC.
ENVIRONMENTAL RESOURCES MANAGEMENT                           MoEST, KENYA
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as either temporary or permanent and assign economic values to them (see
Chapter 7). To effectively do this, the survey will undertake asset inventory for
PAPs.
This will be done through interviews, group discussions and review of existing
documentary evidence (such as permits and licenses) for assets to be lost in the
Project. There will be a review of whether the asset is individually owned or
belongs to a group. The involuntary taking of land results in relocation or loss of
shelter, loss of assets or access to assets of loss of income sources or means of
livelihood, whether or not the PAPs must move to another location or not.
Therefore, meaningful consultations with affected persons (directly or through
representatives), local authorities and appropriate NGOs allows for establishing
the criteria by which displaced persons will be deemed eligible for compensation
and other resettlement assistance.
5.3         ELIGIBILITY CRITERIA FOR DEFINING VARIOUS CATEGORIES OF PAPS
5.3.1        Criteria for PAP Eligibility
Project affected persons will be entitled to compensation based on the status on
their occupation of the affected areas. Under the World Bank's OP 4.12 and the
laws of Kenya, PAPs are defined as:
a) Those who have formal legal rights to land (including customary and
traditional rights recognized under the law of Kenya).
b) Those who do not have formal legal rights to land at the time the census
begins but have a claim to such land or assets provided that such claims are
recognized through a process identified in the resettlement plan.
c) Those who have no recognizable legal right or claim to the land they are
occupying.
The policy specifies that those individuals covered under (a) and (b) above are to
be provided compensation for the land they lose, and other assistance in
accordance with the policy. Individuals covered under (c) above are to be
provided with resettlement assistance in lieu of compensation for the land they
occupy, and other assistance, as necessary, to achieve the objectives set out in this
policy, if they occupy the project area prior to a cut-off date established by the
Government of the Republic of Kenya and acceptable to the World Bank. Persons
who encroach on the area after the cut-off date are not entitled to compensation or
any other form of resettlement assistance. All persons affected by the Project are
provided for compensation for loss of assets other than land.
There will therefore be a package of compensation and other resettlement
measures to assist each category of eligible displaced persons to achieve the
ENVIRONMENTAL RESOURCES MANAGEMENT                         MOEST, KENYA
18



objectives of the policy. Eligibility will also be assessed using the following
information:
* Loss of property: This includes loss of: houses, crops and trees, structures,
fixed improvements, businesses which should be compensated at market
valuation, negotiated settlements, productivity valuation, material and labour
valuation. In cases where the loss is partial then the disposition of salvage
material will be exercised. Cash payments may also be made if a small fraction
of property is lost instead of replacing the whole property, but if the partial
loss results in PAPs not being economically viable then the property is
replaced. Those who lose houses will also be assisted with temporary
residence if necessary.
* Loss of wages and income: These are persons who lose their income due to the
Project. Working losing employment in the process of relocation should be
entitled to transitional income support. Compensation equivalent to lost
income required for the duration of impact should be paid to the latter.
In addition, PAPs will be entitled to transitional assistance, which include moving
expenses, temporary residence if necessary, and employment in the Project while
waiting employment. In difficult cases, local authorities may be used to judge
eligibility as well as community committees.
It is also important to note the eligibility may be claimed collectively, not
necessarily just by individuals or families.
ENVIRONMENTAL RESOURCES MANAGEMENT                           MOEST, KENYA
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6           LEGISLATIVE FRAMEWORK
6.1         INTRODUCTION
Kenya has a plethora of enactments all governing land and transaction in land.
Thus the substantive land law is to be found in two different statutes while the
adjectival land law is to be found in five different statutes in addition to the
customary land law of various tribes in Kenya.
There are two systems of substantive land law, three systems of conveyancing
and five systems of registration. The two systems of substantive law fall under:
* The Indian Transfer of Property Act 1882 as amended by the 1959
Amendment Act; and
* The Registered Land Act.
The three systems of conveyancing applicable to land are registered under:
* Government Lands Act Cap 280, part X Laws of Kenya and Land Titles Act
Cap 282, Part III Laws of Kenya;
* Registration of Titles Act; and
* Registered Land Act.
The five registration systems are those under:
* The Government Lands Act (G.L.A.);
* Registration of Titles Act (R.T.A.);
* The Land Titles Act (L.T.A.);
*  The Registration of Documents Act Cap 285 Laws of Kenya (R.D.A.); and
* The Registered Land Act (R.L.A.).
6.2          OWNERSHIP
Absolute or complete ownership can be said to be in state. Under G.L.A., the
Commission of Lands, on behalf of the Republic of Kenya grants leases of town
plots for any term not exceeding 99 years and of agricultural land for 999 years.
The grantee becomes owner and subject to the terms and conditions of the lease
he possesses the bundle of rights of ownership. The 999-year leases can be
converted into freehold and the 99 years to 999. On conversion or expiry of lease,
the new grant may be issued under the R.T.A. or the R.L.A.
All unalienated land other than trust land and reversion of Government leases are
vested in the Government. Other lands, whether held on freehold or leasehold,
ENVIRONMENTAL RESOURCES MANAGEMENT                        MOEST, KENYA
20



are vested in grantees as owners having the rights over them. The power of the
State to qualify (extinguish) property rights in the public interest is embodied in
Section 75 of the Kenyan Constitution. The section however makes the exercise of
that power subject to due process of law. Section 117 of the Constitution further
provides an Act of Parliament may empower a country council to set apart trust
land for:
* The use and occupation of any public body or authority for public purposes;
* Prospecting or mining purposes; or
* The use and occupation of any person(s) for a purpose which is likely to
benefit the residents of the area.
Section 117, Part 4, stipulates that the setting apart is void unless the law under
which it is made makes provision for the prompt payment of full compensation.
The Trust Land Act, in Subsections 7-13, makes provision for the setting apart of
land and payment of compensation with regard thereto.
All land in urban areas of Kenya and much of the land in rural areas has a
registered title. The title to land is either freehold or leasehold. The development
and use of freehold is controlled by land planning regulations which are
administered by both the Central Government and the Local Authority in which
the land is situated. The Local Authority is generally the County Council or
Municipal Council.
Leasehold land is held on leases from the central government or, less frequently,
from the Local Authority and such leases will contain provisions governing the
development of the land and the use to which the land can be put. The leases
frequently contain provisions against any dealing with the land without the
consent of the landlord.
The Central Government administers its land through a Department of Lands
which is headed by a Commissioner of Lands.
6.3         EXPROPRIATION OF LAND FOR DEVELOPMENT
In Kenya, expropriation is provided for in the Constitution under Section 75 for
private land and 117 and 118 for unregistered Trust Land. The Constitution does
not make any direct reference to the environment and gives only general
guidelines. The detailed procedures for acquisition are elaborated under the
"Land Acquisition Act" in Chapter 295for private land and Chapter 288for
unregistered trust lands. "Trust land" refers to that land that is still held under
African customary tenure. The title to this land is said to vest in the County
Council in trust for its inhabitants, hence the term, "Trust". Trust land represents
the largest land area in Kenya, and as of December 1995, the total area classified
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA
21



as trust land was estimated to be 457,449 sq. km representing approximately 78%
of the total land area in the country.
6.3.1        Procedures under Chapter 295 of the Land Acquisition Act
In brief, a formal request should be submitted to the Commissioner of Lands by
the benefiting authority, e.g. a municipal council in urban areas. Any other public
body or Government may request for acquisition. 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, he writes to the
Commissioner to that effect, and directs him to acquire the land (Section 6(1)).
The Commissioner will then give "Notice of Intention" to acquire the land
(Section 6(2)) in the Kenya Gazette alongside the "Notice of Inquiry".
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. The Collector of Compensation
will inspect the 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 (Sections 10 and
11).
The award is issued in a prescribed form, together with a statement form. The
former indicates the amount of compensation awarded while the latter 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 title for amendment or cancellation. It is
copied to the Government surveyor and the land registrar to make necessary
changes to the affected deed. If the owner rejects the award, the collector deposits
the money in court pending appeal. Compensation is based on open market
value.
6.3.2        Procedures under Chapter 288 of the Land Acquisition Act
"Setting apart" carried out at the instance of the State will involve the following
procedure. The President will write to the local authority in charge of the said
Trust Land informing the Council that the land is required for public purpose by
a public body. The Council will deliberate the matter at a full council meeting and
give consent. The District Commissioner in charge of the affected area will
proceed to identify interests, determine areas and assess compensation for the
land. In the case of acquisition, the President is not involved, but rather the
process begins at the full council meeting.
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA
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7            RESETTLEMENT ENTITLEMENT POLICY
7.1           ENTiTLEMENTS RELAITNG TO VARIOUS CATEGORIES OF IMPACTS
Project Affected Persons and Families (PAPs/PAFs) shall be entitled to
compensation either in cash payments, in-kind contributions, or in the form of
assistance, as described in Table 7.1. However, as indicated in the Bank's OP
4.12, land for land is the preferred compensation.
Table 7.1     Forms of Compensation
Type                  Description
Cash Payments         Compensation will be calculated and paid in the national currency.
Rates will be adjusted for inflation.
In-Kind Compensation  Compensation may include items such as land, houses, other
structures, building materials, seedlings, agricultural inputs and
financial credits for equipment.
Assistance            Assistance may include a dislocation allowance, transportation, and
labor.
7.1.1        Methods of Valuing Affected Assets
Legally accepted valuation procedures that are accepted by both the
Government of Kenya and World Bank, will be applied for the purposes of
fairness and consistency. This will consider replacement costs as well as types
and levels of compensation under the Kenyan law. Valuation of lost assets will
be made at their replacement cost. The approach involves direct replacement
of expropriated assets and covers an amount that is sufficient for asset
replacement net depreciation, 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 costs of land, crops, construction and
materials.
The estimate of these costs can be obtained through the following:
*  Rates quoted by contractors for similar structures in other construction
projects/programmes: When rate schedules do not exist or are outdated,
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.
*  Schedule of costs obtained from the Chief Valuer, Commissioner of Lands
Office, Ministry of Lands and Settlement: the Materials Departments have
a schedule of rates for preparing estimates for construction projects, which
can be used to assess costs for construction materials and labour. When
ENVIRONMENTAL RESOuRCES MANAGEMENT                              MoEST, KENYA



applied to the calculation of replacement cost, rates current for the period
of actual replacement must be used.
An inventory of each asset belonging to the PAP will be taken in his/her
presence. 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.
Because the World Bank policy on resettlement, (OP 4.12), makes no
distinction between legal and customary rights, not only assets and
investments will be compensated for, but also land. Thus, a customary
landowner or land user on state owned land shall be compensated for land,
assets, investments, loss of access etc. at market rates at the time of loss.
7.1.2       Compensation Payments for Loss of Property
Compensation will be facilitated by (a) paying special attention to the
adequacy of legal arrangements, concerning land title, registration, site
occupation; (b) publicizing among people to be displaced the laws and
regulations on valuation and compensation; and (c) establishing criteria for
determining the resettlement eligibility of affected households, including
households that have only partially lost their assets but are no longer
economically viable.
Compensation for land, structures, businesses, fixed improvements and other
temporary assets will be based upon market valuation, disposition for salvage
materials and other fees paid. Lack of title, license or permit will no bar
compensation because even squatters have construction costs relative to
design, materials employed, workmanship and final finish. The assessment
will be undertaken in consultation with affected communities and relevant
central and local government agencies.
The Kenyan law recognizes compensation for loss of property due to
implementation of development projects. The law includes houses, crops and
trees. It also recommends a fair compensation for loss of property. The
Government has established a compensation principle; that is, compensation
for loss of property is paid at market value.
Property loss falls under the following five categories:
ENVIRONMENTAL RESOuRCES MANAGEMENT                         MOEST, KENYA



(a) Property Owners
The property owner is to be compensated by land replacement at the new site
and paid for the crops and trees at market price. Where he has lost structures
(business or residential), compensation is at full value and not depreciated.
For loss of rental income, a lump sum cash payment of 6 months rent per
tenant is to be paid, as well as a disturbance fee of $100. Fences made of wood
or wire is to be compensated at $3 per meter and for hang-dug wells the
property owner is to be compensated $200.
(b) Business Tenants
Payment of half of turnover for 6 months is to be paid and replacement cost
for assets which cannot be moved.
(c) Residential Tenants
S/he is to be paid 6 months rent equivalent for disturbance. S/he is also to be
compensated for the assets which cannot be moved.
(d) Encroachers
These are compensated by relocating to the site of choice with payment of
rental fee for land. For crops, fences and wells, they are to be paid as
mentioned above.
(e) Squatters
Squatters are to be compensated at full replacement value for structures,
relocation to the resettlement site with payment for site rent. There will also be
a payment of lieu wages while rebuilding and a disturbance cost of $100.
"Land for land" compensation will be applied to affected PAPs. The following
is taken into account:
* The legal status of the land to be compensated;
* The quality of the land as regards its utilization; and
* The size of the land and the number of people using it as their main
source of income.
The Kenya community law states that all land belongs to the Government and
in case of expropriation, the land is to be compensated at market price. Private
professional agencies, such as private and independent real estate agencies,
banks or mortgage firms are engaged in determining market values for land,
or to evaluate the adequacy of administratively set compensation. The local
governments through purchase will acquire the land required. The Collector
of Compensation or valuation expert in consultation with field Valuation
Officers at the Ministry of Lands will establish the value of the land. PAPs,
who lose their titles, will be provided new land titles. Those without titles will
also be provided land in accordance to the legal status of the land previously
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA



cultivated or exploited. Economically marginalized PAPs with reduced access
to land will be given particular attention by providing them with more land in
order to enhance their sources of livelihood.
7.1.3       Replacement Costfor other Assets
For public infrastructure: In-kind replacement within an agreed time
schedule, or full compensation to the agency replacing the service is required.
For cultural property and community-ownedfacilities: In-kind replacement
or compensation at replacement cost for land and structures (e.g. religious
churches, mosques, private or community-operated schools, village meeting
houses, local libraries).
For cash crops: Arrangements should 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, graves, fishponds, poultry houses, fences and other
tangible assets should be replaced in kind (or with functional equivalents),
relocated or be compensated at replacement cost.
The relevant Ministries and local government agencies will conduct the
execution of the expropriation/ compensation operations. PAPs will be
consulted about compensation arrangements prepared. Cash compensation
amount and size of land offered for compensation will be presented to each
eligible PAP for consideration and endorsement before cash payment for land
can be effected. It should be noted that costs of construction vary from one
locality to another.
In the valuation of farmland, due consideration will be given to labour and
crop loss in addition to the land value. The biggest investment a farmer makes
in producing a crop is his or her labour. A farmer works on his/her land most
of the months of the year, therefore the major input for producing a crop is not
seed or fertilizer, but the significant labour put into the land each year by the
farmer. As a result, compensation relating to land will cover the market price
of labour invested as well as the market price of the crop lost.
It is difficult to forecast when during the growing season a farmer might need
to give up his/ her land. Thus, the land compensation covers all investments
that a farmer will make. In certain cases, assistance may be provided to land
users in addition to compensation payments, for example, if the farmer is
notified that his/ her land is needed at an agriculturally difficult date, when
s/he will no longer have enough time to prepare another land without help.
Assistance will be provided so as to ensure that replacement land will be
ready by the sowing dates. The farmer will still continue to receive his/ her
cash compensation so that s/he can pay for sowing, weeding and harvesting.
ENVIRONMENTAL RESOURCES MANAGEMENT                        MoEST, KENYA



7.1.4        Related Considerations
Making compensation payments raises some issues regarding inflation,
security, and timing. One purpose of providing in-kind compensation is to
reduce inflationary pressures on the costs of goods and services. Local
inflation may still occur, thus market prices shall be monitored within the time
period that compensation is being made to allow for adjustments in
compensation values. The question of security, especially for people who will
be receiving cash compensation payment, needs to be addressed by the
District Education Officer assigned to that district, with oversight from the
relevant District Commissioner for Lands. Local banks and micro-finance
institutions should work closely with the Government at this level to
encourage the use of their facilities which will positively impact the growth of
the local economies. The time and place for in-kind compensation payments
shall be decided upon by each recipient in consultation with the designated
Valuation Officer of Lands. Monetary payments in the ASAL areas should be
paid at a time in relation to the seasonal calendar.
ENVIRONMENTAL REsOURCEs MANAGEMENT                           MOEST, KENYA



8           ORGANISATIONAL PROCEDURES FOR DELIVERY OF ENTITLEMENTS
8.1         PROJECT CO-ORDINATION AND MANAGEMENT
Compensation and relocation of displaced persons will be funded like any
other activity eligible under the Project's administrative and financial
procedures, and will be described in more detail in the KESSP Project
Procurement Manual.
The Project Co-ordination Unit (PCU) in coordination with the MoEST Tender
Committee at KESSP has the overall responsibility for implementing the
Resettlement Policy Framework and for ensuring that all compensation,
resettlement and rehabilitation activities are satisfactorily completed before
providing approval for disbursement of funds for subprojects in the case of
abbreviated RAPs.
Funding will be processed through this unit which will be set-up and staffed
with several members including a Project Coordinator and a Financial
Specialist, who will be appointed prior to project negotiations and credit
effectiveness. The PCU will manage the day-to-day functions and project
activities, inter alia, ensuring availability of funds and technical assistance at
decentralized levels, i.e. departments and communes.
The key roles of the PCU in terms of resettlement planning are to:
* facilitate the discussion between the villages and the communes regarding
compensation for land acquired for the subprojects;
* monitor the Provincial Project Units' work to ensure that the activities are
carried out in a satisfactory manner;
* organize the necessary orientation and training for the provincial,
departmental and commune officials so that they can carry out
consultations with communities, support communities in carrying out
RAPs and implement the payment of compensation and other measures
(relocation and rehabilitation entitlement) to PAPs in a timely manner; and
* ensure that progress reported are submitted to the World Bank office in
Nairobi on a regular basis.
In addition to the PCU, the following Ministries should be involved in
resettlement actions:
* Ministry of Finance;
* Ministry of Environment and Natural Resources;
* Ministry of Lands and Settlement (Physical Planning Department);
* Ministry of Roads, Public Works and Housing;
* Ministry of Agriculture; and
ENVTRONMENTAL RESOURCES MANAGEMENT                        MOEST, KENYA



*  Ministry of Local Government.
Local Authorities in the respective project regions will be involved, including
County, City (Municipal), and Town Councils. Project coordination at the
provincial and district levels will be defined in the KESSP Project Procurement
Manual.
8.2          COMPENSATION PROCESS
The compensation process for subprojects will involve several steps to be
carried out in accordance with the measures set out in the subproject RAPs.
These steps include the following:
(a) Public Participation
Public participation with local communities will be an ongoing process
through out resettlement planning. PAPs will be notified during the
identification of subprojects and consulted with as part of the screening
process. The subsequent socio-economic survey will record all relevant
information about the PAPs, and ensure that this is accurately reflected in the
RAP in order to allocate the appropriate compensation. Periodic monitoring
will ensure that PAPs have been consulted and that compensation and
relocation has been carried out satisfactorily.
(b) Notification
Landowners are to be notified that their property is required for development
of the subproject. In rural areas, the user will be informed through both a
formal notification, both written and verbal, to be delivered in the presence of
the village chief and the village Coordination Committee. To ensure that any
sensitive areas are accurately identified during this procedure, all necessary
authorities and community representatives (village chiefs, religious leaders,
other elders and individuals who control fishing areas, wild trees and bee
hives) will accompany the survey team to the site.
(c) Documentation of Holdings and Assets
Village officials, urban authorities, and the local community will arrange
meetings with PAPs/PAFs to discuss the compensation process. For each
individual or household affected, the local community completes a
compensation dossier containing necessary personal information on, the
affected party and those individuals considered as household members, total
land holdings, inventory of assets affected, and information for monitoring
future arrangements. The dossier must be confirmed and witnessed by village
officials and will be kept up-to-date. This is necessary as it is possible for an
individual to surrender parcels of land over time and can eventually become
eligible for resettlement. All claims and assets should be documented in
writing.
ENVIRONMENTAL RESOuRCES MANAGEMENT                         MOEST, KENYA



(d) Agreement on Compensation and Preparation of Contracts
The types of compensation to be given to will be clearly explained to
PAPs/PAFs. The local community will draw up a contract listing all property
and land being surrendered, and the types of compensation (cash and/or in-
kind) selected. The MOEST Tender Committee will be responsible for approving
this contract. A person selecting in-kind compensation then has an order form
which is signed and then witnessed. This contract will then be read aloud in
the presence of the affected party and the village chief and local leaders prior
to signing.
(e) Compensation Payments
Any and all handling of property such as land and buildings and
compensation payments will be made in the presence of the affected party and
village chief and leaders.
ENVIRONMENTAL RESOuRCES MANAGEMENT                          MOEST, KENYA



9           DESCRIPTION OF THE IMPLEMENTATION PROCESS AND
ARRANGEMENTS
9.1         IMPLEMENTATION PROCESS
9.1.1       Implementation Schedule
For each subproject, a detailed implementation schedule of the various
activities to be undertaken will be included in each project's RAP. Likewise,
for each subproject, resettlement schedules will be coordinated with the civil
works schedules. Payment of compensation and provision of other
rehabilitation entitlements (in cash or in-kind), and relocation if that is the
case, will be completed at least one month prior to the scheduled start-up date
of works in the respective work site.
9.1.2       Preparation and Review of RAPs during Project Implementation
At this stage in project preparation, it is not possible to predict the number of
RAPs which will be produced during the 1st year of project implementation.
Once the subproject applications along with RAPs are submitted for review,
the relevant district and community authorities (to be determined) have a
certain time frame set for review of the documents. This time frame will be
agreed to by MoEST once the Resettlement Policy Framework has been accepted
by the Government.
9.1.3       Annual Performance Audit
An annual performance audit will be carried out once a year in line with the
suggested audit format outlined in the Environmental and Social Guidelines
Manual, preferably by independent consultants hired by MoEST, in order to
ensure that RAPs are being prepared in compliance with the Resettlement
Policy Framework and the OP 4.12, and that compensation has been carried out
satisfactorily. The audit report will be submitted to MoEST and to the World
Bank for clearance.
9.2         CONSULTATIONS AND INFORMATION DISCLOSURE
Public consultation and participation are essential because they afford
potential displaced persons with the opportunity to contribute both to the
design and implementation of subprojects. Public consultation will take place
at the inception of the subproject at the level of local communities assisted by
city councils, local NGOs, leaders, elders and service providers.
Consultations will occur throughout the entire project cycle, (a) the socio-
economic study, (b) the resettlement plan, (c) the environmental impact
assessment, and (d) during the drafting and reading of the compensation
contract. This is compliant with a key objective of the KESSP which is to
ENVIRONMENTAL RESOuRCES MANAGEMENT                       MoEST, KENYA



ensure a participatory and sector wide approach in implementation of its 23
investment programmes.
Prior to any negotiations, and prior to any land acquisition proceedings, the
relevant District authority (to be determined) must provide information about
key provisions of this Framework. Potentially affected individuals must be
informed that they are not obligated to voluntarily contribute land for
subproject purposes, that involuntary acquisition of land without appropriate
compensation is not permitted, and that lodging of a valid objection by an
affected landowner will be sufficient cause for subproject approval to be
delayed or withheld.
Additional information to be disclosed will include:
* entitlement to replacement in kind or compensation at replacement cost;
* methods to be used in establishing compensation rates;
* procedures for pursuing grievances, including contact information.
Information should be presented in a language and medium accessible to
those potentially involved or affected.
9.3         MECHANISMS FOR GRIEVANCE REDRESS
Grievances may arise from members of communities who are dissatisfied with
the eligibility criteria, community planning measures, or actual
implementation. Compensation committees including representatives of PAPs
will establish the compensation rates. During the initial stages of the valuation
process, the affected persons are given copies of grievance procedures as a
guide on how to handle the grievances. The process of grievance will start
with registration of the grievances to be addressed for reference, and to enable
progress updates of the cases.
The project will use a local mechanism, which included peers and local leaders
of the affected people. These will ensure equity across cases; they eliminate
nuisance claims and satisfy legitimate claimants at low cost. The response time
will depend on the issue to be addresses, but it should be addressed with
efficiency. Compensation will be paid to individual PAPs only after a written
consent of the PAPs, including both husband and wife. Should a PAP refuse
the compensation suggested, he/ she could appeal to the County (Municipal)
Councils. A technical committee will draft its inclusions and submit them to
the District board for deliberation in the aim of settling the differences. And
when these have failed the individual PAP has the right to take his case to the
civil courts for litigation.
ENVIRONMENTAL RESOURCES MANAGEMENT                         MoEST, KENYA



9.4         BUDGETAND SOURCE OF FUNDING
The estimate of the overall cost of resettlement and compensation would be
determined during the socio-economic study. In collaboration with the Local
Authorities and the PAPs, KESSP through its Project Management team and
tender committees, will finance the preparation of the resettlement and
compensation plan.
At this stage, it is not possible to estimate the likely number of people who
may be affected. After the conclusion of the socio-economic study, information
on specific impacts, individual and household incomes and numbers of
affected people and other demographic data would thus be available,
facilitating the preparation of a detailed and accurate budget for resettlement
and compensation. All the stakeholders will review this budget. Contingency
measures will be put in place based on the information gathered in the survey.
Each abbreviated RAP will include a detailed budget for compensation and
other rehabilitation entitlements. It will also include information on how the
funds will flow as well as the compensation schedule. The RAP will also
clearly state where the sources of land and fund will come from. The budget
in the resettlement and compensation plans will be subject to approval of the
World Bank.
As the Borrower, MoEST carries official responsibility for meeting the terms of
this framework, including financial obligations associated with land
acquisition. If in the event there are insufficient funds available for
compensation, the proposed investment will be disqualified.
9.5         MECHANISMS FOR CONSULTATION
To obtain cooperation, participation and feedback, the affected hosts and
resettlers need to be systematically informed and consulted during
preparation of the resettlement plan about their options and rights. They will
also be able to choose from a number of acceptable resettlement alternatives.
Particular attention must be given to vulnerable groups such as indigenous
people, ethnic minorities, the landless, and women, to ensure that they are
represented adequately in such arrangements.
Successful resettlement requires a timely transfer of responsibility from
settlement agencies to the PAPs themselves. Otherwise, a dependency
relationship may arise, and agency resources may become tied up in a limited
number of continually supervised schemes. Local leadership must be
encouraged to assume responsibility for environmental management and
infrastructure maintenance.
Relocating or compensating people implies communication or dialogue with
the stakeholders. The compensation and participation process will include:
ENVIRONMENTAL RESOURCES MANAGEMENT                       MoEST, KENYA



* Data collection;
* Implementation; and
* Monitoring and evaluation.
9.6         SUPERVISION MONITORING AND EVALUATION
Supervision and monitoring of resettlement issues will be carried out
systematically with the supervision and monitoring of the environmental and
social issues as identified in the ESMP of the S-ESIA. The monitoring of these
issues will be incorporated into the performance evaluation of the overall
project.
9.6.1       Arrangements for monitoring by implementing agency
Arrangements for monitoring should fit with the overall monitoring plan of
the KESSP, which includes monitoring at the national level and decentralized
monitoring through the relevant District authorities. These units are expected
to have monitoring and evaluation guides established and functional by the
end of the first year in the project cycle.
As part of the resettlement plan goals, the monitoring shall evaluate the
following:
*  whether affected people have been paid in full and before implementation
of the subproject;
*  whether affected individuals, households and communities were able to
maintain their pre-project standard of living, and even improve on it; and
* whether local communities remain supportive of the project.
A number of indicators would be used in order to determine the status of
affected people (land being used compared to before, standard of house
compared to before, level of participation in project activities compared to
before, extent to business interrupted and the return to normalcy, how many
classrooms constructed and improved as compared to before.)
9.6.2       World Bank Supervision Missions
External monitoring will be conducted through World Bank supervision
missions. Standard supervision missions (twice a year) will, however not be
sufficient to monitor progress in the mitigation of adverse social impacts.
Supervision missions should be coupled with capacity building inputs from
resettlement experts.
This would ensure documentation of: progress made; local analytical capacity
building and proper documentation executed and the progress made. Before
closure of the mitigation of adverse social impacts, the Project will engage
consultants to conduct an evaluation of the mitigation measures executed. The
ENVIRONMENTAL RESOuRCES MANAGEMENT                        MOEST, KENYA



2I
a                              evaluation report will be used as a planning instrument to correct pending
*                              issues.
ENVIRONMENTAL RESOuRCES MANAGEMENT                                         MOEST, KENYA



Annex 1
Key Definitions for
Resettlement Policy
Framework



11.1         KEY DEFINITIONS
The terms used in this document are defined as follows:
Policy Framework refers to the present document which is the overall Policy
Frameworkfor Compensation, Resettlement and Rehabilitation of Project Affected
Persons for the KESSP. The Policy Framework describes the process and
methods for carrying out resettlement under the Project, including
compensation, relocation and rehabilitation of Project affectees.
PAP means Project Affected Person, and includes any person or persons who,
on account of the execution of the Project, or any of its components or
subprojects or parts thereof, would have their:
(i) right, title, or interest in any house, land (including residential, agricultural,
forest and grazing land) or any other fixed or moveable asset acquired or
possessed, in full or in part, permanently or temporarily; or
(ii) business, occupation, work, place of residence or habitat adversely
affected; or
(iii) standard of living adversely affected.
PAF means Project Affected Family, and consists of all members of a
household residing under one roof and operating as a single economic unit,
who are adversely affected by the Project, or any of its components.
Resettlement Action Plan (RAP) means the resettlement action plans
prepared for specific subprojects.
Land Acquisition means the process whereby a person is compelled by a
public agency to alienate all or part of the land he/she owns or possesses, to
the ownership and possession of that agency, for public purpose in return for
a consideration.
Displacement refers to the removal of people from their land, homes, farms,
etc. as a result of a project's activities. Displacement occurs during the
involuntary taking of lands which results in:
(i)    relocation or loss of shelter;
(ii)  lost of assets or access to assets; or
(iii)  loss of income sources or means of livelihood, whether or not the
affected persons must move to another location.
Displacement can also result from involuntary restriction or access to legally
designated parks and protected areas resulting in adverse impacts on the
livelihoods of PAPs.
ENVIRONMENTAL RESOURCES MANAGEMENT                            MoEST, KENYA



Resettlement means all the measures taken to mitigate any and all adverse
impacts of the Project on PAF's property and/or livelihoods, including
compensation, relocation (where relevant), and rehabilitation.
Replacement cost is the method of valuation of assets that helps determine the
amount sufficient to replace lost assets and cover transaction costs. In
applying this method of valuation, depreciation of structures and assets
should not be taken into account. For losses that cannot easily be valued or
compensated for in monetary terms (e.g., access to public services, customers,
and suppliers; or to fishing, grazing, or forest areas), attempts are made to
establish access to equivalent and culturally acceptable resources and earning
opportunities. Where domestic law does not meet the standard of
compensation at full replacement cost, compensation under domestic law is
supplemented by additional measures necessary to meet the replacement cost
standard.
Replacement value means the value determined to be fair compensation for
productive land based on its productive potential, the replacement cost of
houses and structures (current fair market price of building materials and
labor without depreciation), and the market value of residential land, crops,
trees and other commodities.
Relocation means the physical relocation of PAPs/PAFs from their pre-
Project place of residence.
Rehabilitation means the compensatory measures provided under the RPF
other than payment of the replacement value of acquired property.
Dislocation Allowance is a form of compensation provided to eligible persons
who are displaced from their dwelling, whether they are landowners or
tenants, and who require a transition allowance, paid by the project.
Dislocation allowances may be graduated to reflect differences in income
levels, and are generally determined according to a schedule set at the
national level by the implementing agency.
Disturbance allowance is a form of compensation provided to eligible persons
(ie farmers, land users and/or businesses) who are losing income temporarily
or permanently, by a disturbance to their land, crops or businesses during
construction of a subproject.
Compensation means payment in cash or in kind of the replacement value of
the acquired property.
Subproject means any subproject to be financed under the KESSP, more
specifically under the Primary School Infrastructure Investment Programme
and and the Secondary Education Investment Programme.
ENViRONMENTAL RESOURCES MANAGEMENT                         MOEST, KENYA



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Tel: +44 (0)20 7465 7200
Fax: +44 (0)20 7465 7272
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