Lamu Port: 4,700 fishers, no land taken, and a court that called it property

The fishers of Lamu lost no land. No parcel was gazetted against them, no structure was valued, no cut-off date applied to their assets. Dredging for the first berths of Lamu Port destroyed the channels and grounds they worked, and on any parcel-based census they were invisible.

On 30 April 2018 the High Court held that they nonetheless held rights the Constitution protects. Traditional fishers in Lamu, the court found, acquire by virtue of Articles 26, 28, 40 and 43 "certain penumbral property rights to fish traditionally in those routes and zones" — and it identified more than 4,700 of them.[2] Compensation of KSh 1.76 billion was ordered, payable within a year.[3][5]

Article 40 protects property. The court's move was to decide that a fishing ground, worked traditionally, is capable of being property.

The claim, and why it took six years to file and six more to pay

Baadi & others v Attorney General was filed as Petition 22 of 2012 by Lamu residents against the Attorney General and the ministries that approved the port, with the National Land Commission among the interested parties.[1] LAPSSET — the Lamu Port–South Sudan–Ethiopia Transport corridor — bundles a 32-berth port at Manda Bay with rail, pipelines, refineries and resort cities. The petitioners' case was that a project of that scale had been conceptualised and implemented in breach of the Constitution and of the Environmental Management and Co-ordination Act.

The court agreed, across an unusually broad front. It found violations of the right to public participation; exclusion of the Lamu county government contrary to the devolution scheme; denial of the right to information; infringement of the right to a clean and healthy environment; violation of cultural rights; and it recognised traditional fishing rights as property rather than mere usage.[3] It sent the ESIA back to NEMA.[3]

The award was payable within twelve months. It was not paid. Two years after judgment the fisherfolk were still waiting, and the delay was itself the subject of international reporting.[4] Payment finally issued in 2024, after an appellate direction and a verification exercise — roughly six years after the order, and twelve after the petition was filed.[4]

Why a parcel-based census could never have found these people

This is the clearest available illustration of a failure mode PS-5 names and most censuses still miss. PS-5 treats loss of access to assets, and to common-property resources, as economic displacement where it leads to loss of income or livelihood; Guidance Note 5 gives fishing grounds as an example of exactly such a common resource.[6][7] The obligation does not attach to a title. It attaches to a dependency.

An asset inventory built from a cadastre asks "what is on this parcel and who owns it." A fisher's productive asset is a channel, a reef, a seasonal run and a landing site — none of which appear. The gear and the boat are visible, but they are not what was taken; they retain their value and lose their use. The affected unit is a network, and the survey instrument was designed for a grid.

Note also who was counted. The number that mattered was not households but individual fishers, and getting from one to the other required identifying crew as well as boat owners. A household head recorded as "fisherman" collapses a crew of five into a single record and four uncompensated people.

The verification problem the award created

A large award to a population defined by activity rather than by title invites false claims, and the Lamu payout attracted them: reporting on the compensation exercise described names of port-authority staff, civil servants and security officials appearing on the payment list.[4] The verification that followed is a substantial part of why payment took years.

That is not an argument against recognising the loss. It is an argument for establishing the eligible population while the project is being designed, when landing-site registers, beach management units, licences and crew lists can be cross-checked against people who are present and working — rather than after a court has attached a number to the class and created an incentive to join it. A census that is late is not merely late; it is contaminated.

What the record should have carried

• A livelihood-chain baseline, not a parcel schedule: landing sites, grounds and routes worked, seasonality, boat owners, crew, processors and traders, with the double-counting rule stated rather than assumed.
• Identity anchored to an independent register — beach management unit membership, licences, cooperative rolls — captured before any award is announced, so eligibility can be proved rather than adjudicated.
• The dependency evidence: what was fished, where, and the link between the project works and the loss of access. This is the proposition the court had to be satisfied of, and it is the one a parcel-based file cannot supply.
• The strategic assessment, and the county's role in it. The court's findings on public participation and devolution turned on who was in the room at conceptualisation, not at disclosure.[3]
• A payment trail with a verification method attached, because an award to a defined class is only as credible as the list it is paid against.

What this case does not establish

The primary judgment sits on Kenya Law, which bot-blocks automated requests; the holdings here are taken from the reported judgment and corroborated against independent case analyses and contemporaneous reporting, all of which resolve publicly.[2][3] Figures for the class size vary slightly between sources — 4,734 in the compensation exercise, "more than 4,700" in the analysis of the judgment — and the total is reported as KSh 1.76 billion, rounded to 1.7 billion in some accounts. The court ruled on the lawfulness of the process and on compensation; it did not halt the port, and it made no finding on any individual claimant's entitlement. Nothing here is advice on Kenyan constitutional or environmental law.