Kenyan law allows public bodies to compulsorily purchase private land for public purposes including roads, airports, schools and public utilities such as electricity and water.
Although the ability to compulsorily purchase land for basic infrastructure is undoubtedly a crucial development tool for the state, this ability is not absolute.
It is limited by various considerations aimed at balancing public needs and the rights of private property owners.
Some of the notable projects in Kenya that involved compulsory land acquisition include the Standard Gauge Railway, the Dongo Kundu Special Economic Zone, and the Nairobi Expressway.
Despite the long-standing presence of mandatory purchasing powers around the world, the process of developing effective and equitable legal and institutional frameworks to achieve this is evolving, and Kenya is no exception.
The Land Acquisition Tribunal has recently provided clarifications on a number of issues that have plagued the process in the past.
Affected landowners in Mutomo, Kiambu County have filed proceedings against the National Land Commission and Mama Ngina University College challenging the proposed compulsory acquisition of private land, for the purpose of expanding Mama Ngina University College.
They claimed the plan violated the constitution. The court ruled in favor of the landowners and overturned the order to forcibly evict them.
She said the National Land Commission had yet to set out the criteria and guidelines that public authorities should adhere to in the process of compulsory acquisition of private land as required under the Land Act.
This has been identified as a violation of the national principles and values of governance enshrined in the Constitution of Kenya, particularly the requirements of transparency and accountability.
If this position is maintained, a wave of disputes over land allocated for compulsory acquisition could arise, on the basis of the Commission’s failure to set out guidelines that public authorities must adhere to. Such rules must be subject to public consultation before they are implemented.
The Court provided guidance on the nature of the rules to be envisaged, noting that when undertaking a project for the benefit of the public, the relevant public authorities must prepare a detailed justification for the project setting out all possible alternatives, in order to ensure that there is minimal disruption to private landowners.
In the Mama Ngina University College case, the court decided that there were other viable alternatives that would cause less disruption to private landowners.
Disputes over timely compensation to landowners have also hampered projects involving compulsory land acquisition.
While the Land Act requires the acquiring entity to deposit the compensation amount with the National Land Authority before proceeding with the acquisition process, this is not always done in a timely manner.
The ball is now in the National Land Council’s court to set guidelines for compulsory purchase of private land, which will not only protect the rights of owners but also enhance the legitimacy and effectiveness of public projects.
The writer is a legal expert.
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