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We have overheard that the Government has plans in the pipeline to improve the road network in our area. However, the State would be forced to acquire ancestral land from some families to get space for infrastructural development. Does the law allow the State to acquire private property for any reason legally?
Erica, Nairobi
Yes, the Government can legally acquire private property compulsorily when the land is needed for public benefit - public good or in the public interest. The public benefit may be constructing a road, school, and hospital.
The Government cannot just take away the legally owned private property and walk away - it must promptly compensate in full.
Even though the Government may seem to have the upper hand, the compulsory acquisition of private property is a detailed administrative process. The affected property owners must be allowed to be heard or opposed to that process.
Section 107 of the Land Act mandates the National Land Commission (NLC) to acquire land compulsorily on behalf of both the national and county governments. The process starts when a Cabinet Secretary or a county executive committee member submits a request for compulsory land acquisition to the NLC. The NLC has the power to reject an application for compulsory acquisition if the request does not meet the requirements of Article 40(3) of the Constitution - acquisition for a public purpose or in the public interest. Once the NLC is satisfied that the conditions for compulsory acquisition are met, it publishes a notice in the Kenya Gazette and the land Registry.
It is advisable for registered property owners whose properties are targeted for compulsory acquisition to value their property to ensure they are paid back at current market rates.
It is wise to engage a certified valuer to value the property at current market rates and have a valuation report upon receiving demolition notice from the State. Owners who feel the compensation is below their expectations can move to the High Court.
The Bill of Rights under Article 40 of the Constitution protects the right to private property. Legally, private land is that held under freehold - has a title deed - or leasehold - has a lease. The rights, however, do not extend to owners who unlawfully acquired the repossessed property.
Property owners can also go to court to stop the State.
Harold Ayodo is an Advocate of the High Court of Kenya
