The Kenyan law allows public entities to compulsorily buy private land for public purposes including roads, airports, schools and public utilities such as electricity and water.
While the power to forcefully buy land for essential infrastructure is undoubtedly a critical development tool for the State, this is not absolute.
It is limited by various considerations aimed at balancing public needs and rights of private property owners.
Some notable projects in Kenya which have involved compulsory land acquisition include the standard gauge railway, Dongo Kundu Special Economic Zone and the Nairobi Expressway.
Despite the long-standing presence of compulsory buying powers around the world, the process of developing effective and equitable legal and institutional frameworks for its effecting this is evolving, and Kenya is no exception.
The Land Acquisition Tribunal recently provided clarity on a number of issues that have plagued the process in the past.
Affected landowners in Mutomo in Kiambu county, instituted proceedings against the National Land Commission (NLC) and Mama Ngina University College challenging the proposed compulsory acquisition of private land, for purposes of expanding Mama Ngina University College.
They argued that the plan violated the Constitution. The tribunal ruled in favour of the landowners and quashed a decision to compulsorily evict them.
It said NLC is yet to prescribe the criteria and guidelines to be adhered to by public authorities in the process of compulsory acquisition of private land as required under the Land Act.
This was determined to be a violation of the national principles and values of governance as enshrined in the Constitution of Kenya, and specifically the requirement for transparency and accountability.
If this position is upheld, there may be a flurry of disputes around land that has been earmarked for compulsory acquisition, on the basis of the commission’s failure to prescribe guidelines to be adhered to by public authorities. Such rule would need to be subjected to public participation prior to implementation.
The tribunal provided guidance on the nature of rules envisaged, stating that when embarking on a project for the benefit of the public, relevant public authorities should prepare a detailed justification for the project outlining all possible alternatives, in order to ensure that it occasions the least disruption to private landowners.
In the case of Mama Ngina University College, the tribunal determined that there were other viable alternatives that would have occasioned less disruption to private land owners.
Disputes regarding timely compensation of landowners have also dogged projects involving compulsory acquisition of land.
While the Land Act requires the acquiring entity to deposit the compensation sum with the NLC before the acquisition is undertaken, this is not always done in a timely manner.
The ball is therefore in NLC’s court, to develop guidelines for compulsory buying of private land, that will not only safeguard rights of owners but also enhance legitimacy and effectiveness of public projects.
