02/03/2022
THE PROCESS OF COMPULSORY ACQUISITION IN KENYA
A. INTRODUCTION
The compulsory land acquisition also referred to as the doctrine of eminent domain, allows the State as the owner of radical title (ultimate ownership) to acquire private land and/or community land for public use.
Section 2 of the Land Act, 2012 defines compulsory Acquisition as “the power of the State to deprive or acquire any title or other interest in land for a public purpose subject to prompt payment of compensation.
The said section defines "public purpose" as the purposes of (a) transportation (b) public buildings (c) public utilities (d) public parks (f) settlement of squatters, the poor and landless, and the internally displaced persons; and (g) any other analogous public purpose.”
The 5 Judge Bench comprising the Honourable Justice Lenaola( as he then was), Mumbi Ngugi, L. Achode, G.V. Odunga and J. L Onguto observed in Patrick Musimba –vs- National Land Commission & 4 Others (2016) eKLR extensor as follows: -
The statutory framework for compulsory acquisition is founded under Part VIII of the Land Act, No. 6 of 2012.With a view to ensuring that there was a real, rather than a fanciful or remote connection between the compulsory acquisition and the States development needs, Part III was drafted in detail. History in the practice of compulsory acquisition prompted such detail. Not only was the State to keep its right to compulsorily acquire but the citizen too was to be protected from wanton and unnecessary deprivation of his private property
B. LEGAL FRAMEWORK
Article 40 (3) of the Constitution of Kenya, 2010 while protecting the right to the property provides that:
The State shall not deprive a person of property of any description, or any interest in, or right over, property of any description, unless the deprivation:
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) Is for a public purpose or in the public interest and is carried out per this Constitution and any Act of Parliament that--
(i) Requires prompt payment in full, of just compensation to the person; and
(ii) Allows any person who has an interest in, or right over, that property a right of access to a court of law.
Article 67(1) of the Constitution of Kenya, 2010 establishes the National Land Commission (NLC) whose functions include the management of public land on behalf of the national and county governments per Article 67(2) (a) of the Constitution of Kenya, 2010.
Section 51 of the Land Act mandates the NLC to manage the process of compulsory acquisition on behalf of the national or county governments and to award compensation to every person whom the NLC determines at the inquiry to have an interest in the land.
Further, Section 9(2) (c) (i) of the Act provides that private land may be converted into public land through compulsory acquisition.
Section 22 of the Community Land, 2016 provides that community land may be converted into public land through compulsory acquisition and that the reversionary interest of such land shall lie with the community in the first instance upon expiry of such public use interest.
Lastly, Section 28 of the Land Registration Act, 2012 provides for rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law, as overriding interests over land.
C. THE PROCESS OF COMPULSORY ACQUISITION
The NLC prescribes criteria and guidelines to be adhered to by the acquiring authorities in the acquisition of land. The processes are provided under Section 107(2) and (3) of the Land Act, 2012 and Part V of the Legal Notice 280.
Preliminary Stage
1) The NLC receives requests from the national or county governments to compulsorily acquire land on their behalf in the public interest or public use (Section 107(1) of the Land Act, 2012).
2) Under Section 107 of the Land Act, the National Land Commission 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 the public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met; the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in those respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.
3) Regulation 22(2),(3) The commission has to establish that acquiring body has sufficient funds for the intended acquisition and
Geo-referencing of the land to be acquired has been done.
4) Under Sections 107 and 110 of the Land Act, the NLC must then publish in the gazette notice of the intention to acquire the land. The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land. NLC must also ensure that the land to be acquired is authenticated by the survey department to identify the owner. The commission shall serve the notice of intention to any affected person and enter it to the register.
5) The commission shall in consultation with affected person, inspect and collect data on
I. the location;
II. the area to be acquired;
III. the proposed land use in the national, regional or county spatial plans;
IV. existing use of the land;
V. improvements on the land being acquired;
VI. the impacts of the acquisition; and any other information relevant for the acquisition
6) 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: see Section 108 of the Land Act.
DETERMINING PROPRIETARY INTERESTS AND COMPENSATION
7) 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. The commission shall issue the notice of inquiry in form LA 34.
8) Where approval of a requesting authority's request to compulsorily acquire land is granted, the NLC publishes a notice of acquisition in the Gazette and the County Gazette and delivers a copy of the notice to the Registrar and every person who appears to the NLC to be interested in the land. (Section 107(5) of the Land Act).
9) The Registrar then make an entry in the land register of the intended acquisition. (Section 107(6) of the Land Act). All land to be compulsorily acquired is to be geo-referenced and authenticated by the office or authority responsible for the survey at both the national and county government (S. 107(8) of the Land Act). Following the publication of the notice of acquisition, the NLC may, in writing, authorize any person, to enter upon any land specified in the notice and inspect the land, and to do all things that may be reasonably necessary to ascertain whether the land is suitable for the intended public purpose. (S. 108(1) of the Land Act).
10) The NLC shall pay prompt, full, and just compensation for any damage resulting from the entry upon the land in exercise of the power of entry to inspect land as authorized by the NLC.
11) 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 by serving each person with a determined interest in Form 35 notifying them of the award and offer for compensation. .
12) Persons shall be required to communicate their acceptance or rejection of the award in Form LA37 set out in the Third Schedule.
13) Where the award is accepted, the bonafide person(s) shall forward their bank details, PIN number and identification documents to the Commission.
14) Where only a portion of the land comprised has been acquired, the Commission shall within six months cause a final survey of the acquired land to be carried out and cadastral map and plan prepared before payment of compensation.
15) The acquiring body shall deposit with the Commission the compensation funds in addition to survey fees, registration fees and any other incidental costs.
PAYMENT AND COMPENSATION
16) The Commission shall pay the compensation in accordance with the award to the persons entitled within ninety days from the date of receipt of funds from the acquiring body. This is meant to cushion owners from delay and destitution upon loss of their land, business, livelihoods and communal relations, for them to recover their livelihood as soon as possible.
17) Upon payment of compensation, the landowner shall deliver original documents to the NLC who shall prepare surrender documents to be signed by the proprietor and be forwarded to the registrar. The delivery of the original titles shall be done in less than 15days from the date of payment of compensation.
18) If it’s only a portion been acquired upon the commission delivering the original to the registrar he shall registered the acquired parcel in name of the acquiring body and the remaining in the name of the proprietor.
19) The process is completed by the possession of the land in question being taken by the National Land Commission 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. This is upon service of notice to take possession in form 38.
20) 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. See 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. See 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
Note Where the parcel is deemed unfit for the purpose for which the acquisition was intended, the Commission shall notify the Registrar to remove the notice of intention to acquire on the register within seven days from the date of the notice.
AUTHOR
MERCY MUENI ONYANGO.
