COMPULSORY ACQUISITION OF LAND IN KENYA

 LETS TALK ABOUT COMPULSORY ACQUISITION OF LAND/ EMINENT DOMAIN

Compulsory acquisition (eminent domain) refers to the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use. In some jurisdictions, the state delegates’ eminent domain power to certain public and private companies, typically utilities.

Another captivating definition is that of Professor Nixon Sifuna in the Law, Environment and Development Journal which defines eminent domain as the power of the State to compulsorily acquire privately owned land for public uses.

 Brief highlight of the acquisition process

Acquisition of land in Kenya vide compulsory acquisition follows various authoritative procedures before the land acquiring entity or body is registered as the proprietors of the land. First, according to Part vii Land Act, whenever the National or the Country Government is satisfied that there is need to acquire land, the respective Cabinet Secretary or County Executive Committee shall submit the request to the National Land Commission to acquire land on its behalf. The Commission shall certify, in writing that the land is required for public purposes or in the public interest as per Section 110. A notice of the acquisition shall be published in the gazette and the county gazette as specified in Section 107 (5) of the Land Act, 2012. Section 107(2) states that the Commission shall prescribe the criteria and guidelines to be adhered to by the acquiring authorities and as per Section 111(1), the Commission shall make rules to regulate the assessment of just compensation.

Any dispute arising during the acquisition shall be referred to the Environment and Land Court for determination as per Section 128 of the Land Act, 2012. As compulsory land acquisition plays a major role in public service delivery, the process in principle needs to be simple, prompt, just and compatible with Article 17 Section (1) of the International Convention on Human Rights which states that, everyone has the right to own property alone as well as in association with others and Section (2) which states that “no one shall be arbitrarily deprived of his property”.

This is also enshrined under article 40 of the Constitution of Kenya, 2010 which guarantees that everyone has the right to property.

The other is section 28 of the Land Registration Act, 2012 which reiterates the overriding interests in land to include compulsory acquisition of land.

In Kenya this principle of prompt and just compensation is one that seems to be the most instrumental but one that many proprietors are manipulated on due to the authoritative figure most of the governmental agencies are.

Requirements for acquiring land by compulsory acquisition

Having established that the rights to property is enshrined under article 40 of the Kenyan 2010 Constitution, the following shall entail the essentials for acquiring land by this process:

1. The property acquired must be taken for a “public use”
2. The state must pay “just compensation” in exchange for the property.
3. No person must be deprived of his/her property without due process of law.

a.      a) Public use

For public use, it’s required that the property taken to be used to benefit the public rather than specific individuals. Whether a particular use is considered public is ordinarily a question to be determined by the courts. One example is the case of Commissioner of Lands and Another v. Coastal Aquaculture Ltd. (Civil Appeal No. 252 of 1196), Nairobi, the High Court ruled in favour of the appellant by holding that, when giving notice during the acquisition, the public purpose and the public body for which the land was been acquired was not stated.

b.      b) Just compensation

The Kenya Constitution under article 40(3b)(i) require prompt payment in full, of just compensation to the person affected by the acquisition would have got had he sold the land on the open market plus other losses which result from the resumption. Just compensation mandates that the amount of compensation awarded when property is seized or damaged through condemnation must be fair to the public as well as to the property owner.

On the quantum awardable, the judge in the case of Kanini Farm Ltd v. Commissioner of Lands, (High Court Nairobi 1981), stated that in determining the amount of compensation which ought to be paid the court should take into consideration the comparable sales and awards on other acquisitions of land of similar character. The market data or direct sales comparison approach is generally regarded as the most reliable method of determining fair market value for unimproved residential, commercial and industrial land. Improved residential properties and, to a lesser extent, commercial and industrial properties, are often valued using this approach too.

The effects of Compulsory Acquisition of land

Positive effects

In Kenya, compulsory acquisition of land/ eminent domain has both positive and negative effects. I will first deal with the positive effects which will be a highlight of the benefits and importance. First, the important aspect relates to the purpose in which the land is being acquired which is for public use or benefit, a government entity can exercise this right only if it’s taking will be for a "public use" which may extend to lines of public "safety, health, interest, or convenience".

The first ever decided case on the doctrine of eminent domain was that of Kelo -v- New England, it was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use”.

In the case of Sharpless vs. Mayor of Philadelphia, the city of Philadelphia, USA decided to take taxpayers‟ money and invest it in a private railroad by buying railroad bonds, and that was challenged as being taking property from some people and giving it to other people simply because they had more political power, and this was unjust. The Pennsylvanian Supreme Court applied the Blackstonian sovereignty view and said that that was perfectly all right since the railroads would be a benefit to the general public.

Also, the public as a whole can benefit from eminent domain if the governmental projects are successful. For example, a state might use its power of eminent domain to seize a strip of land to accommodate a new highway. The new highway might shorten travel time and alleviate traffic problems, benefiting both local commuters and the trucking industry. The new highway might even increase state revenues if tolls are collected.

Some international instruments have also been applied to ascertain the legitimacy eminent domain powers, e.g.

In Article 14 of the Banjul Charter, it guarantees every person a right to property.

Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that every natural or legal person is entitled to the peaceful enjoyment of their possessions and that no one shall be deprived of their possessions unless in the public interest and subject to the conditions provided for by law and by the general principle(s) of international law.

Negative effects

Compensation is one of the key challenges as it may be below the market price or a wrong evaluation format of evaluating the compensation cost may be used, this usually affects the proprietor of the land as they get below the market value or none at all. Its also prudent to note that the suits thereafter get to be tedious and time wasting upon coming to the realization that they are being misused

One example is the Standard Gauge Railway project by the government where some people were evicted from their land and others claimed to have not received their compensation.

In Karesh v. City of Charleton, the city wanted to condemn land along the Market Street of the city in order to lease the land for ninety-nine (99) years to a private corporation, which would in turn build a parking garage and convention center containing rental commercial space. The Court reiterated that the term „public use‟ „is an elastic one in order to keep abreast the changing social conditions, and presents a question of fact…‟ The Court found that leasing land to a private corporation for 99 years was beyond the definition of public use. It believed that the proposed project would primarily benefit the developer, with no definite advantage to the general public, hence dismissed the matter.

Articles 21 of the Constitution ascertains that one of the duties to the republic is that of protecting them from right to property.

Forceful eviction and giving of compensation may be taken freely by the officials, Under Section 13 (1) of Cap 295, the Commissioner of Lands can withhold compensation in cases where: - there is no competent person to receive the award; the person entitled does not consent to receive the award; or there is a dispute as to the right of the person entitled to receive the award or as to the share in which it is to be paid. Any amount of compensation, which is not paid, is deposited in the court as under Section 13(2) and attracts interests of 6% as form the time of taking possession until the payment is made.

The other negative effect of eminent domain, is the relocation of persons who have a history with a place in the name of public use. This may kill a culture and displace a given population whose settlement is nuclear.

 Conclusion and recommendations

State’s exercise of compulsory acquisition of land, among other regulatory powers on private property, in fulfillment of its constitutional obligations towards the citizens is a constitutionally guaranteed right, which right must be, to the greatest possible extent, appreciated, respected and upheld by every person in Kenya.

 In the words of Madan CJ (as he then was) in the case of Githunguri v Republic where he said that “We speak in the knowledge that rights cannot be absolute. They must be balanced against other rights and freedoms and the general welfare of the community. The people will lose faith in the Constitution if it fails to give effective protection to the fundamental rights. The people know and believe that to destroy the rule of law you destroy justice thereby also destroying the society”