Land related issues remain one of the main risks in the implementation of infrastructure projects in Kenya. Most of the recent major infrastructural projects in Kenya have been undertaken through a public private partnership arrangement under which one of the obligations of the public entity has been to provide the land for the project. In most case, the land required is not public land but private land forcing the public entity to pursue compulsory acquisition of the private land under the relevant laws.
In these recent times, private contractors of some of the ongoing major projects such as LAPPSET, and the Standard Railway Gauge, have been joined as interested parties in suits filed by residents or activists against the National Land Commission (“NLC”) and the relevant public project owners, complaining of non-compliance with the legal procedure for compulsory acquisition.
Given the huge time and cost burden of such suits on major projects, it is important for private contractors to understand the process and obtain warranties from the public entity that the lawful process will be followed failing which the parties can agree on suitable reparations.
Below is the process of compulsory acquisition of private land as summarised by the Court in Patrick Musimba v National Land Commission & 4 Others [2016] eKLR:
Preliminary/Pre-Inquiry Stage
- Under Section 107 of the Land Act, the NLC is ordinarily prompted by the national or county government through the Cabinet Secretary or County Executive Member respectively. The land must be acquired for a public purpose or in public interest as dictated by Article 40(3) of the Constitution. The threshold must be met: the reason for the acquisition must not be remote or fanciful. The NLC needs to be satisfied in these respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property. In its FAQs, the NLC states that at the pre-inquiry stage, it requires the public entity to also provide a Resettlement Action Plan (RAP) accompanied by a list of persons affected by the project (PAPs).
- Under Sections 107 and 110 of the Land Act, the NLC must then publish in the Kenya Gazette a notice of the intention to acquire the land. The notice is also to be delivered to the Lands Registrar as well as every person who appears to have an interest in the land.
- As part of the NLC’s due diligence strategy, the NLC must also ensure that the land to be acquired is authenticated by the Survey Department for the rather obvious reason that the owner be identified. In the course of such inquiries, the NLC is also to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purpose (Section 108 of the Land Act).
Inquiry Stage
- Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The section has an elaborate procedure with the NLC enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the persons interested and who are to be compensated. The NLC exercises quasi-judicial powers at this stage.
Post-Inquiry Stage
- On completion of the inquiry the NLC makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission: see Sections 113- 119 of the Land Act.
- The process is completed by the possession of the land in question being taken by the NLC once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the land registrar being duly notified (Sections 120-122 of the Land Act).
- If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined (Section 111 of the Land Act). This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.
- The Constitution dictates that acquisition be in accordance with the provisions of the Constitution itself and any Act of Parliament. The Constitution itself only provides for just compensation being made promptly.
- It is to be noted that under Section 120 of the Land Act, possession ought to be taken by NLC only after the amount of the first offer has been paid and an appropriate notice given to the land owner specifying the date of possession. However, section 120(2) of the Land Act also allows possession to be taken in cases of urgency or if acquisition by following normal procedure would lead to a delayed acquisition. In such cases, NLC may take possession notwithstanding the fact that no compensation has actually been made.
