Rising water levels

I am seated in one of the conference rooms in Lake Naivasha Resort, one of the heaviest investments in conferencing facilities in Naivasha in recent years. It’s off Moi South Lake Road, Naivasha. Ahead lies other top-notch tourist facilities including Enashipai, Sawella, Sopa and Simba. My peek through the window captures a beautiful skyline, enhanced by the Lake edge cutting through a landscape rich with savanna shrubs and beautiful acacia trees. It has been quite a while since I spent some generous time around here. Clearly, something has changed lately. The ground between the hotel and the water edge has shrunk……and tremendously so. The water levels are much higher today, and one can see the tops of submerged trees, evidence of the much ground gradually covered by the rising lake water.

Threat to investments

When I raise my concerns about this phenomenon, a Professor in Planning in one of the local Universities tells me, “But this is small. Some high-end tourist facilities next to Lake Baringo now lie underwater. The water levels rose fast and high, sinking all the surrounding developments, including the roads. I know of an investor who suffered huge loses as a result”. In the year 2018, I undertook a task for some client at Watamu where the phenomenon of rising Indian Ocean waters threaten multi-million investments. Indeed, billions worth of touristic and residential investments around Watamu face an uncertain future given the rising ocean water. It is also source to regular tides that hit the shore with such furious force that unless there are strong enough protective walls, major beach developments would be brought down.

Shifting boundaries

During my assignment, I’d reason and time to research and reflect upon these unique circumstances. I’d time to do some comparative reading too. Clearly, “migrating” boundaries, also referred to as “ambulating” boundaries, pose a challenge not just in Kenya, but around the world. Unfortunately, Kenya’s policy and laws do not provide clarity on how to manage “shifting” boundaries, such as those of seas and lakes, and, to a smaller extent, those of tidal rivers. Our statutes only prescribe widths that should be respected between the surveyed boundaries of the abutting properties and the high water marks of these features. But the high water mark rises with the rise in water levels, while surveyed property boundaries, which are mathematical, are fixed.

Encroachment over surveyed boundaries

So when water levels rise and encroach upon surveyed properties next to the ocean, or Lakes like Naivasha and Baringo, should we amend our maps and title deeds to reflect only the remainder property? If such property were to be transacted in the market, should the new owner claim to have bought even the parts encroached by water? Where registered land is totally submerged, shouldn’t the owners be resettled or compensated, given that titles enjoy state guarantee? When investments on such transition zones are lost to rising water, shouldn’t they be compensated? These fundamental questions call for policy and legal answers.

Dated 10th December, 2021