What happens when the State wants your land

Jan 26th 2023

 Jomo Charles Makhokha Emwatsi Community chairman points at an 8-acre piece of land where the government is planning to build a granite plant. [Mumo Munuve, Standard]

If it so happens that the soil on the land you own conceals beneath it a very precious mineral, say the fictional vibranium appearing in American comic books.

Does it suddenly make you the richest man around?

Will you, going by the Latin land ownership maxim of Quicquid plantatur solo, solo cedit (whatever is affixed to the soil is part of the soil), then own the rare metallic ore to infinity and top the Forbes rich list?

Or say the government had decided to build the newest, state-of-the-art university on your piece of land. Are you, suddenly, the most affluent landlord in the country?

The law denies you either privilege.

Vested in law is a doctrine called compulsory acquisition, which allows the government to, in special cases, take possession of your parcel of land and utilise it to the benefit of the public.

Your land, and the minerals underneath it, are now the governments. 

This explains why corrupt, powerful people often buy parcels of land in areas where they know the government proposes to build a project such as a road, or a public institution.

Those whose parcels of land are taken over by the government are compensated, often at higher than prevailing market rates going by past cases, and those in adjacent parcels often benefit from a sudden surge in price.

heir apparent

The government is the holder of radical title where, upon expiry, and non-renewal, of a leasehold or where a freehold owner dies with no apparent heirs, the ownership of the parcel of the land reverts to the State.

However, in the case the government needs to use private land for any form of public use, there are set guidelines that must be followed on the way to the acquisition of the property.

When this has to happen, writes Ronald Matende Omwoma, a land administration expert and planner, four fundamental pillars must be observed.

“These include eminent domain, which gives the government power to acquire any land within its jurisdiction without the necessity of the owner’s consent for a public purpose, public interest, which justifies the acquisition of private land, open, fair and transparent process, which exhaustively informs and answers all the concerns of the affected land owners and prompt payment of just and fair compensation that may enable the affected people to settle and recover from disturbances occasioned by the compulsory acquisition,” he wrote in The Surveyor’s Journal, the Institution of Surveyors of Kenya’s publication of mid-2022.

In its capacity with eminent domain, the government is expected to be considerate to the citizens in such a way that taking private land does not lead to the unnecessary suffering of citizens who benefited from the land when it was private.

But in the past, accusations have been levelled against governments for arm-twisting citizens into ceding land, then irregularly handing it over to private citizens of means without duly compensating the legal landowners.

“The established procedures for compulsory acquisition have either been abused or not adhered to leading to irregular acquisition. This has led to a prevalence of cases of conflict and contestation between eminent domain rights and regulatory power of the State over land on one hand, and private property rights on the other hand,” writes Omwoma.

The National Land Policy (NLP) in 2009 recommended that due to the anticipation that land acquisition would continue to be abused by those in power leading to the suffering of the masses, the radical title is “vested in the people of Kenya collectively as a nation, as communities and as individuals. Tenure rights shall be derived from that radical title under specific laws”.

“This will effectively erode and downgrade the dictatorial eminent domain power of the State over land and give the people of Kenya latitude in the exercise of development control and compulsory acquisition powers of the state,” he writes.

Compulsory acquisition is one of four ways through which private land may convert to public land, according to The Land Act No.6 of 2012, the others being reversion of leasehold interest to the government after the expiry of a lease, transfers and surrender.

For the other three, however, the land owner is prepared, and probably ready, to give up ownership.

A rigorous procedure is, by law, followed in compulsory acquisition, starting with the Cabinet Secretary or the County Executive Committee Member submitting a request for the acquisition of land to the National Land Commission (NLC) to acquire the land on its behalf.

There must be adequate justification for compulsory acquisition, including the necessity of acquisition, that is proof that the purpose for which the land is acquired is to serve the public, and “to afford reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property”.

acquiring authority

But the Commission may reject a request of an acquiring authority to undertake an acquisition if it establishes that the request does not meet the requirements prescribed in the Constitution, The Land Act states.

In the case where the Commission approves of the acquisition, it requires that the affected land is mapped out and valued by the Commission.

It also ensures that the acquiring authority (the government) has identified the number and maintains a register of persons in actual occupation of the land.

“Confirming for each such occupation how much time they have been in uninterrupted occupation or ownership of interest in the land prior to the date of the request for acquisition of the land, and the improvements thereon”, reads the Act.

Ahead of the completion of the process, the Commission publishes a notice in the Kenya Gazette and the county gazette with information on the purpose for which the land is to be compulsorily acquired and the location, general description and approximate area of the land. The registrar keeps a copy of this and those with an interest in the land are also presented with a copy.

When the Commission is evaluating the validity of the request for compulsory acquisition, it investigates whether the purpose for the acquisition matches the size of land that the authority claims to desire.

“Land earmarked for compulsory acquisition should not be excessive and unreasonable by any standard. For instance, one cannot purport to acquire one thousand acres for one single stream secondary school!” writes Omwoma.

After all is said and done, prompt compensation of the parties interested in the land must be made. This is the reason many who buy in speculation are there in the first place, to fleece the government.

So how is the price of the land reached?

“Fairness and justice in terms of compensation should benefit both the acquiring entity and the land owner. Payment should be computed on the basis of the existing use of the land plus some additional sum for the potential of land for other uses,” Omwoma writes.

“Land Acquisition Act 1968, provided for payment of 15 per cent in addition to the market value of the land to compensate for the inconvenience of having the land taken and allowed the owner to claim professional charges accrued in connection with the acquisition.”

This follows the proper identification of beneficiaries, and then the extinguishing of the title formerly held by the private owner to avoid any further transactions in the land.

The process of acquisition should be sensitive to the public, with land acquired put to use by the government. It would be unfair to acquire land and leave it idle. And if after partial acquisition the Commission is satisfied that the action will render the remaining land inadequate for its intended use or will severely and disproportionally reduce the value of the remaining land, it will instruct the acquiring authority to acquire the remaining land, says the Act.

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