Construction of the Sh320 million Miwongoni River Dam in Machakos is set to resume after the Environment and Lands Court set aside an order that stopped the project in July 2019.
Justice Oscar Angote said the injunctive order issued against the Athi Water Services Board was made out of misrepresentation of facts by a group of more than 200 residents affected by the project.
The development project, funded by the African Development Bank (AfDB) at a cost of Sh320,509,445, was aimed at assisting the people of Machakos and surrounding areas in eradication of perennial water shortages, diseases and poverty.
The Athi Water Services Board appointed Jiangxi Water and Hydropower Construction Company Limited to undertake the project and the contractor went on site to begin work.
However, the area residents claimed interest in the land as Project Affected Persons who have homes and permanent amenities on the land and, as such, demanded compensation.
They moved to court seeking orders and a declaration that they are entitled to exclusive and unimpeded right of possession and occupation of the suit property. They also wanted an order stopping government from occupying the land.
Before the case could be heard, both sides recorded an agreement indicating the project work should stop until the Resettlement Action Plan (RAP) Review Report is prepared and presented to the parties.
The consent agreement, dated July 17, 2019, was adopted by the court as an order. The parties had agreed that for the purpose of determining who the bona fide affected land owners are, a committee be constituted.
The committee consisted of the Consultant in the Resettlement Action Plan Review (RAP Review), 10 representatives from the plaintiffs and two representatives of the Athi Water Services Board.
But the water development agency returned to court a year later, in June 2020, seeking to have the consent order set aside on grounds that the plaintiffs were motivated by malice and mischief in entering into the agreement.
The court heard that it had come to the knowledge of the government water agency that there are other four cases pending in court concerning the ownership of the suit property which are yet to be dealt with.
Justice Angote, while setting aside the injunctive order, said it was a misrepresentation of facts for the residents' failure to disclose that there were other pending cases between them and other third parties.
Considering that the plaintiffs did not disclose to the court or to the Athi Water Services Board the pendine cases in relation to the suit property, the judge said the plaintiffs knowingly made a false representation of material facts.
He ruled that the false representation was intended to induce the State agency to act as settled in a consent agreement that was recorded in court on July 19, 2019.
"Indeed, the disclosure about the pendency of other suits changes the trajectory of the consent completely. I say so because until the purported suits are heard and determined, the plaintiffs cannot state with certainty that they are the only people who will be affected by the proposed project as contemplated in the consent order of July 17, 2019," said the judge.
Athi Water intended to undertake the construction of Miwongoni 15-metre High Earth Fill dam with a storage capacity of 1.6m3.
It also planned to construct the New Miwongoni Treatment Works with a capacity of 10,000m3/d which is about 300m to the southwest of the existing Maruba Dam Treatment Works including pumps, staff houses, laboratory and administrative building.
The new Miwongoni treatment works will have a new storage tank at Katelembo with 5,000m3 capacity, 5km long pipe and 400mm diameter.