According to conventional economic theory, recognition and protection of private property rights and interests is a prerequisite for the vibrancy of the land market. For this and many other purposes, property right is a fundamental right under the Bill of Rights in the Constitution.
However the elements of such constitutional protection must be interpreted to accommodate the provision of public goods. To contextualise the foregoing assertion is the ongoing wrangling between the need to protect the private land that the government wants to build a bypass or other infrastructure project.
Such wrangling in form of court injunctions raises a policy issue of causing unnecessary delay to the implementation of time-bound projects.
The protection of property rights is embodied in the compulsory acquisition doctrine, which is enshrined in the so-called “taking clause” in Article 40 of the Constitution.
The Constitution establishes the right to property and provides for its protection.
Every person – individually or in association – has a right to acquire and own vested or contingent rights to, or interest in or arising from land or permanent fixtures on or improvement to land of any description and in any part of Kenya.
The exemption to this rule is that the right to property of non-citizens is restricted to leasehold of a maximum of 99 years.
The rule exempts acquisition under the compulsory acquisition doctrine. The elements of this doctrine are that the acquisition must be for public purpose or public interest. In addition, prompt payment, full or just compensation, must be effected and any person with interest in or right over the property, must be granted the right by the court.
Acquisition
Third, the rule exempts any property that has been unlawfully acquired.
On one hand, the economic justification embodied in compulsory acquisition doctrine addresses the holdout problem associated with provision of public goods by forcing non-consensual transfer.
For instance, large developments like construction of a new highway or railroad often involve assembly of huge tracts of land.
The holdout problem emanates from the fact that once the assembly becomes public knowledge, each landowner realises that he/she can impose a substantial cost on the provider by failing to sell.
Such knowledge confers monopoly on owners who can each hold out for prices in excess of their true valuation, thereby endangering the completion of the project. On the other hand, the economic rationale for forcing the government to promptly pay just compensation is to restrict it from arbitrary taking private land for public use.
However such restriction must be balanced by the need to control the land owners’ potential to over-invest in private land that is subject to acquisition.
The clause further allows for court access to any person like a squatter who may or may not have an interest or right over the property in question.
Moreover, occupancy based on good faith qualifies for compensation. Such provisions will likely incentivise the land owner to request for a court injunction and exacerbate the squatters’ problem.
A case in point is the recent landmark case where squatters managed to obtain a conservancy order to restrain City Hall from evicting them from the informal settlement, with adequate notice.
In conclusion, it is critical to strike a balance between the need to uphold the sanctity of private land ownership and effectiveness of providing public goods and service.
Such a balance must be based on the trade-off of eliminating the land owners’ holdout problem in form of court injunctions and expediting the implementation of the ongoing infrastructure.
Prof Kieyah is a principal policy analyst at KIPPRA. Views expressed in this article are personal.
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