How to make public land private

A Mombasa County security team throws out standard gauge railway contractors from a site in Kwa Skembo, Changamwe last month. There is need for land conversions from private to public, or vice versa, to follow the law. [PHOTO: FILE / STANDARD]

NAIROBI: Legal processes should be followed strictly when converting land from public to private ownership to stem land grabbing.

There is confusion over land ownership as some private developers are accused of acquiring public property either illegally or irregularly. The developers claim they legally acquired such land.

But it is the duty of the Government to ensure legal procedures are adhered to when developers acquire public land and convert them to private ownership.

According to the Land Act, the conversions require approval from either the national or county assembly, depending on where the land is located.

REQUIREMENT

The National Land Commission (NLC) is required to keep a register containing details of public property converted to private ownership.

The register should contain names and addresses of all people whose property has changed to public land through either compulsory acquisition or reversion of leasehold.

The NLC should also keep records of community land changed into either private or public property.

However, community land can only be converted after Parliament enacts legislation in line with Article 63 of the Constitution.

Section Five of the Land Act empowers the commission to draw up rules that provide for transactions that require approval of either the national or county assembly.

It also has powers to control and regulate the conversion of land from one category to another and prescribe factors to be considered when determining land for exchange.

But even as the Ccmmission has statutory mandate to draft the conversion rules, the provisions must be tabled and debated in Parliament for approval. Approval

PRIVATE TO PUBLIC

According to the law, private land can also be converted into public to fulfil public needs in the interest of defence, safety, order, morality, health, and planning or community land.

The Land Act provides that private land may be converted to public use through compulsory acquisition, transfers and surrender or reversion of leasehold interest to the Government after expiry of a lease.

A fitting example of compulsory acquisition is the process in which the Government is currently engaged in by compensating locals for private land to construct the standard gauge railway.

However, compulsory acquisition is not usually a walk in the park as witnessed by some protestations by leaders and private land owners.

For instance, at one point, the High Court stopped the construction of the Sh327 billion Mombasa-Nairobi railway line until a case filed by Kibwezi MP Patrick Musimba was heard and determined.

SUSPENDED PROJECT

Justice Charles Kariuki suspended the project for 14 days after hearing an application by the MP. Through lawyer Kethi Kilonzo, Mr Musimba said Kibwezi residents were not compensated for land acquired by the Government for the project.

Ms Kilonzo told the court that the residents were not given notice before the take-over, as required by the law.

She argued that residents will suffer economically as the land will be fenced off with a perimeter wall, thus inhibiting their movement and that of their livestock to grazing fields.

Kilonzo said proper acquisition of the land should be done and residents ought to be compensated.