This case concerns the design and implementation of the Lamu Port-South Sudan-Ethiopia-Transport Corridor project (LAPSSET Project). The LAPSSET Project is a transport and infrastructure project in Kenya. The LAPSSET Project as initially designed involved the following components: a 32-berth port at Manda Bay in Lamu; an inter-regional standard gauge railway from Lamu to Juba and Addis Ababa, the South Sudan and Ethiopian capitals respectively; a road network and oil pipelines from South Sudan and Ethiopia; an oil refinery at Bargoni; three international airports and three resort cities: Lamu, Isiolo and Lake Turkana shores. Additionally, it was designed to include a multi-purpose High Grand Falls dam along the Tana River.

The petitioners are residents of Lamu County. They argue that the LAPSSET Project was designed and implemented in violation of the Constitution and statutory law. Additionally, they complain that the Project will have far-reaching consequences on the marine ecosystem of the Lamu region in terms of the destruction of mangrove forests, discharge of industrial effluents into the environment, and adverse effects on fish species and marine life. Finally, the petitioners claim that, if the project is implemented as designed, it will affect their cultural heritage and way life as well as their livelihoods.

Held: The Project must compensate local fishermen for the adverse environmental and economic effects of the Project.

Traditional fishermen who have, over time, enjoyed the right to fish in certain sea routes and zones in an area immediately next to an archipelago or archipelagic state and within the national waters and Exclusive Economic Zone (EEZ) of the Kenyan State acquire, by virtue of arts 26, 28, 40 and 43 of the Kenyan Constitution, certain penumbral property rights to fish traditionally in those routes and zones as well as a legitimate expectation that the State will observe, respect, protect, promote and fulfil those rights under art 21 of the Constitution. The more than 4,700 traditional and artisanal fishermen in the Lamu Archipelago who can demonstrate that they have enjoyed and exercised fishing rights in the traditional fishing routes and zones immediately around the Archipelago have certain property rights over those traditional fishing rights and routes or zones.

This right is not unknown in international law. Indeed, to a large extent, our necessary reading of the existence of this penumbral right under our Constitution is merely a reflection and extension of existing international law. For example, art 51 of the United Nations Convention of the Law of the Sea (UNCLOS) explicitly refers to traditional fishing rights and stipulates thus:

Without prejudice to Article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals.