What Is Compulsory Land Acquisition? How To Protect Yourself

You may have heard of compulsory land acquisition in Kenya and wondered what it entails, how it affects your land rights, and what you should do in an event where your land parcel is selected for this process. This guide helps you understand the ins and outs of this legal procedure.

What is Compulsory Land Acquisition?

Compulsory land acquisition is a legal process under Kenyan law that helps the government acquire private land for public purposes where there is a need, such as the construction of a road, a railway, or any other public infrastructure.

Hence, it is a tool in the Kenyan constitution that helps the government bring services closer to the people and meet their needs. Specifically, article 40 of our constitution provides for compulsory land acquisition and states that the same should be done in a fair and procedural manner and that it should also be done in a transparent way. The Land Act proceeds to specify the steps of land acquisition and provides clear guidelines on how it is it is to be conducted.

The Process and Justification of Compulsory Land Acquisition

It is a Kenyan’s right to own land in your country. However, this right must be balanced with the government’s agenda of providing services to the public, and these rights are balanced by the laws concerning the compulsory acquisition of land in Kenya. This process begins with the government identifying a project that is needed in a certain area for use by the public.

The government then proceeds to identify the owners of the land parcels that will be affected by the said projects. Once these landowners have been identified, the negotiation process begins with the government.

In some cases, the negotiation is not successful, such as when the government and the land owner have a different valuation price for the land parcel. In such cases where disputes arise mainly due to varying valuation reports, these disputes are heard and determined by the land acquisition tribunal. Where either party is grieved by the decision of this tribunal, they have the right to appeal its decision.

In instances where there are no disputes, the government proceeds to acquire the said land parcels for the agreed amount through the National Land Commission, which is mandated by law to do so. Where there is a dispute, the National Land Commission sets up a separate trust account and keeps the money for the land parcels until the dispute is heard and determined through the various set legal processes.

Disputes and Challenges in Land Valuation

There are cases where the private owners of these land parcels feel that the government’s valuation is not sufficient. It, more often than not, tends to be lower than their own valuation due to sentimental value. Where the private owners view that their land is of a higher value because of its future use, they have the right to appeal. However, practically, most of these safeguards do not bear fruit.

There are also instances where the government states that it wants to compulsorily acquire land for public use but eventually, this land is not put to public use but ends up in the private hands of powerful individuals in government. The process of land acquisition has hence been dented by cases of corruption.

In some other cases, the government turns to over-value certain land parcels, going over and above the market value, and this serves to disenfranchise the private land owners whose land parcels are used as a tool of corruption, which goes against the spirit of our constitution, which states that this process should be transparent.

Payment Setbacks in Compulsory Land Acquisition

While payment processes in compulsory land acquisition are often efficient, issues sometimes arise. One such instance is where there is a delay in the disbursement of the amounts agreed upon and this is mostly occasioned by the fact that the National Land Commission is inadequately funded or where treasury delays in disbursing these amounts. In some cases, the private owners of these affected parcels have to leave their land parcels, and the compensation has not yet been disbursed, which serves to inconvenience them and affect their livelihoods as some have nowhere to go and have already left their land and homes behind.

The process of disbursing these funds, hence, ought to be done in a fair, reasonable, and timely manner to facilitate these affected landowners to move to a new ground in a seamless manner, as this is their right.

The Way Forward

It is clear from the above and from the spirit of our constitution that compulsory acquisition of land is a necessary tool for the government to acquire private land for public use. However, there are many challenges that arise in this process, including corruption, delays in the disbursement of the agreed funds, the misuse of this process by powerful private individuals in government, and the lack of transparency in this process. If these issues are addressed, then the process of compulsorily acquiring privately owned land for public use by the government will be beneficial to the private land owners and to the general public, who will enjoy the service.

Need Advice on Compulsory Land Acquisition?

As we wait for solutions to these inefficiencies, it is important for private landowners whose land is being compulsorily acquired by the government to consult an experienced advocate to advise them on the process of compulsory land acquisition, their rights, and how they can negotiate better terms for the land parcels. This advice will also enable them to know what to expect and how to navigate the process until they receive the agreed-upon amount. Where there is a dispute (such as concerns over the valuation reports or an issue as to who owns the land), then the advocates will help the private land owner in those matters.

For more on how this process works and for advice on how to navigate it, use the contact form below to set up an appointment with one of our legal experts.