FAQs and Answers on Compulsory Land Acquisition in Kenya

The FAQs and Answers provide an easy to understand description of the process of compulsory land acquisition as legally provided for in the Kenyan context.

NB: This is an inital version of FAQs and Answers on compulsory acquisition. A detailed and indepth analysis of the compulsory acquision question in the extractives industry in Kenya  will be developed and shared.  

“Compulsory acquisition” refers to the power of the government to dispossess or acquire or transfer any title or other interest in land for a public purpose subject to prompt payment of compensation.

Compulsory acquisition can only occur in situations where the state intends to use the land in question for a public purpose or in the public interest. Compulsory acquisition can only be effected upon:  

  • prompt payment in full, of just compensation to the person; and
  • allowing any person with an interest in, or right over, that property a right of access to court of law

Source: Constitution of Kenya, Article 40 (3)

The National Land Commission (the “Commission”) is legally mandated to compulsorily acquire land on behalf of the national or county government. The Commission can only act upon request by the national or county government, by order in the government gazette, to reserve public land in question. It is also mandated to set aside land for investment purposes which may include land for oil, gas and mining projects.

Source: Constitution of Kenya, Article 65; Land Act 2012, Articles 12 (3) & 15(1)

Compulsory land acquisition in Kenya has an elaborate process which involves the following:

  1. Preliminary notice: the national or county government through the respective cabinet secretary or county executive member is required to submit a request to the Commission to acquire a particular land on its behalf. Such a request can only be made once the national or county government is satisfied that it may be necessary to acquire the particular land for a public purpose
  2. Prescribe criteria for acquisition: the Commission develops/prescribes criteria and guidelines to be followed by the acquiring authorities e.g. Ministry of Mining, in the acquisition of the land
  3. Approval of the request: the Commission approves or rejects the request for compulsory land acquisition. It provides reasons and conditions to be met by the acquiring authority in case it rejects the request for compulsory acquisition
  4. Notice of acquisition: upon approval of the request, a notice of acquisition in the Kenya government gazette and the county gazette is published. A copy of the notice should be served to all interested persons in the land as well as the registrar of lands.
  5. Registration of the intended acquisition: once the registrar is served with the notice, the registrar registers the intended acquisition
  6. Surveying of the land: the land in this case is authenticated and its location defined by the responsible office at the national and county government

Source: Land Act 2012 Part VIII, Articles 107-110

Compulsory acquisition requires that the persons deprived of the land be paid a just compensation in full and promptly after their interests have been established. To arrive at a just compensation the Commission is required to do the following:

  1. Make rules to regulate the assessment of just compensation
  2. Hold a compensation inquiry at least thirty days after publishing the notice for acquisition to hear issues of property and claims for compensation by persons interested in the land 
  3. Identify the persons interested in the land and receives written claims for compensation from those interested in the land
  4. Award compensation after inquiry by preparing a written award which contains separate awards of compensation for each entitled person. The final award stipulates the size of the land to be acquired, value in the opinion of the Commission and the amount of compensation payable
  5. Serve each entitled person/s a notice of the award and offer of compensation. Prior to the offer of compensation, the Commission and the beneficiary can reach a written agreement to receive a grant of alternative land not exceeding in value the amount that would have been awarded
  6. After the notice of award has been served, the Commission promptly pays the award to the persons entitled

Source: Land Act 2012, Articles 111-115 

 

For more information, contact us at info@extractives-baraza.com or come visit us at Sir Thomas More Building, Strathmore university, Madaraka Estate, Nairobi, Kenya

           

 

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