Kenphilip O. Oriku*
Introduction
Compulsory acquisition is the power of government to acquire private rights in land for a public purpose, without the willing consent of its owner or occupant.[1] This power can be referred by a myriad of names depending on a country’s legal traditions, for example; eminent domain, expropriation, takings and compulsory purchase. Compulsory acquisition is a critical development tool for governments, and for ensuring that land is available when needed for essential infrastructure.[2]
In Kenya, the legal regime for compulsory acquisition is anchored in The Constitution of Kenya 2010, The National Land Commission Act 2012, The Land Registration Act 2012, The Land Act 2012, The Environment and Land Court Act 2011 and Land Value (Amendment) Act 2019. Land reforms in Kenya have yielded excellent legislative provisions and the only way to reap benefits from this provisions is through effective implementation. The National Land Commission (NLC) is mandated under section 107 of the Land Act to acquire land compulsorily on behalf of both the national and county governments.
Despite the elaborate laws governing the compulsory acquisition process in Kenya, the process has seen litigants sue the National Land Commission and the acquiring agencies having been aggrieved on different grounds. The Court in many instances, as discussed hereafter, has faulted the National Land Commission’s and or the acquiring agency’s process in the compulsory acquisition. This has resulted in the use of public resources to abide by court orders due to procedural defects that could have been avoided in the first place.
This paper seeks to review the legal pitfalls in the process of compulsory acquisition and gaps in the process that lead to unending litigation. The resources used to ameliorate the gaps are transferred to tax payers which could have, in the first place, been avoided.
Legal Pitfalls in the Compulsory Acquisition Process.
- Inquiry as to Compensation
Section 112 of the Land Act, 2012 provides for an inquiry hearing during the compulsory acquisition process. Section 112(1) obligates the National Land Commission to undertake an inquiry. The Section provides that; ‘At least thirty days after publishing the notice of intention to acquire land, the Commission shall appoint a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land.’[3]
The Courts have appreciated the wisdom of parliament in enacting Section 112 of the Land Act which gives an elaborate framework on how disputes relating to the state’s exercise of the power of eminent domain are to be adjudicated. Justice B M Eboso while ventilating on the issue of disputes that arise out of compulsory acquisition in the matter of Giciri Thuo & 5 others v National Land Commission & 4 others[4], at paragraph 19 of the ruling, he quips ‘Part VIIIA (of the Land Act) provides a framework on how disputes relating to the state’s exercise of the power of eminent domain are to be adjudicated. Under Section 112 of the Act, the National Land Commission is obligated to publish a notice of intention to compulsorily acquire land on behalf of either of the two levels of Government. The Section obligates the National Land Commission to appoint a date for an inquiry into the intended compulsory acquisition. At the stage of inquiry, the Commission hears issues relating to propriety and claims for compensation by persons interested in the land.’ The foregoing position underscores the importance of the inquiry stage in the compulsory acquisition process.
The Court in the matter of Giciri Thuo & 5 others v National Land Commission & 4 others[5], dismissed a petition brought by the petitioners challenging a gazette Notice by the National Land Commission. The import of the gazette notice being that the National Land Commission had given statutory notice of the intention of the National Government to compulsorily acquire various parcels of land as additional land for Mama Ngina University College in Kiambu County. The petition was brought to court, at first instance, instead of approaching the National Land Commission under Section 112 of the Land Act, 2012. The court in its ruling, found that, the jurisdiction of the court had been prematurely invoked in that petition. At that stage of the state’s exercise of the power of eminent domain, the court did not have jurisdiction to entertain the dispute in the petition. The court found that, the proper fora where the grievances raised by the petitioners should have been ventilated are the inquiry contemplated under Section 112 of the Land Act.
Having noted and underscored the importance of the inquiry stage in Compulsory acquisition, it is proper to delve and examine how the Inquiry should be carried out in juxtaposition with how the National Land Commission has carried it out in the past. The process of inquiry, as carried out by the National Land Commission, has been heavily criticized based on the jurisprudence emanating from the Courts.
Article 47 of the Constitution of Kenya[6], provides for fair administrative action. Article 47(1) provides verbatim; ‘Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair’.[7]The inquiry process and the inquiry hearing, in particular, should be carried out in compliance with the constitution. The inquiry hearings should not be carried out in a manner that falls short of the Constitutional requirements and threshold of a fair hearing. This is both in terms of procedure of how the hearing is carried out and how the final decision is arrived at. Failure to adhere to the constitutional threshold of a fair hearing exposes the National Land Commission’s awards and decisions to be challenged in courts of Law and in many instances annulled.
Article 47(2) provides verbatim; ‘If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action’.[8] This in effect implies, that it’s a constitutional right for a person to be given written reasons if a right or fundamental freedom has been or is likely to be adversely affected by administrative action. Article 40, of the Constitution of Kenya provides for the protection of the right to property. Article 40(1) provides that every person has the right, either individually or in association with others, to acquire and own property of any description; and in any part of Kenya.[9] Ownership of Land in Kenya, falls in the ambit of property ownership and therefore a constitutional right. Therefore, any administrative action that is likely to be adverse to a person’s right to ownership of Land, should give the person written reasons for such action. Failure to which, exposes the National Land Commission to law suits brought by litigants challenging the awards and decisions of the commission based on their constitutional right to be given written reasons for the awards and or decisions issued.
Emanating jurisprudence from the Courts, as shown hereinafter, point to a sharp critique by the courts of the procedural defects in the National Land Commission’s Inquiry hearings under Section 112 of the Land Act.
Failure to Give Written Reasons For Award
In the matter of Five Star Agencies Limited v National Land Commission[10], on the procedure attendant to the assessment of compensation, the Appellant in this matter, submitted that Article 47(1) of the Constitution guarantees that every person has the right to administrative action that is procedurally fair, and Article 47(2) thereof indeed demands that in the case of compulsory acquisition, a dispossessed owner has the unqualified right to be given written reasons and/or sufficient data and analysis of the factors the National Land Commission took into account to substantiate its conclusions at the time of issuing of an award. The Appellant contended that the award dated 9th January, 2014 only set out the breakdown of the final compensation sum following the inquiry but did not in any way seek to provide any reasons for the awarded compensation, particularly, the factors the National Land Commission took into account in arriving at these sums. It was the Appellant’s contention that this failure by the National Land Commission to provide written reasons created a rebuttable presumption of a substantial error or defect in the procedure it adopted in assessing the amount of compensation.
The court in this matter noted that, while it appreciated that the making of an inquiry may be part of fair administrative action, there are other requirements that may need to be observed to ensure that parties who are affected by an acquisition notice are availed a fair hearing. This is particularly as regards written reasons for a decision, as Article 47(2) of the Constitution now provides that where a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. Likewise, access to information is now an express constitutional right and requirement under Article 35 (b) of the Constitution especially when such information is held by another person and required for the exercise or protection of any right or fundamental freedom.[11]
Almost 10 years later, the court in a recent judgment delivered in the year 2022, was faced with the same issue in the case of Ravaspaul Kyalo Mutisya v National Land Commission[12]. At paragraph 27, the court found that the National Land Commission was wrong in failing to give to the Appellant reasons for the award and neither did they show the criteria used in arriving at the assessed award in spite of various requests for the same. The court also noted that the National Land Commission further, failed to supply the Appellant with the documents in support of the award.
- Failure to Issue a Preliminary Notice
In the matter of Ravaspaul Kyalo Mutisya v National Land Commission[13]the Appellants claim was mainly based on the fact that a portion of his land parcel No. Kisasi/Nguuni/1462was unlawfully acquired compulsorily by the National Land Commission and the compensation awarded did not amount to a full and just compensation as contemplated by the law. He claimed that he did not receive notice that his property was to be part of the land to be acquired by the Respondent for construction of Kibwezi-Mutomo-Kitui-Kabati-Migwani Road (A9/B64). He also claimed that his property was demolished before issuance of this notice even though the same is a requirement of the law. That when the Appellant made inquiries he found out that gazette notice number 1640 of 22nd February 2019 had been issued being a notice of intention by the government to acquire the listed parcel of land, for Kenya National Highway Authority (KeNHA). However, the Appellant claimed that his parcel of land was not one of the ones published for compulsory acquisition. This fact was not denied.
The court found that the Preliminary notice provided for under Section 107 (5) of the Land Act is a mandatory requirement in the process of compulsory acquisition and the same must be served on every person who appears may be interested in the land and this would include the Appellant therein as the registered proprietor of the land. The Court thus found that the Respondent did not follow the law in acquiring the Appellants property due to failure to issue a notice of intention to acquire land under Section 107 (5) of the Land Act. For this reason, the Appellant was entitled to be issued with the notice, if any existed, as prayed under prayer e) of the appeal.
- Failure to give criteria used to arrive at Award.
In the matter of ELC Civil Appeal No. 3 of 2014 cited in Stanley Munga Githunguri v National Land Commission[14] where judgment was delivered by Gitumbi, J. setting aside the Respondent’s award of Kshs. 155,398,925/- on the ground that there was no ascertainable criteria used by the Respondent in arriving at that award. In the said judgment, the court directed the Respondent to revalue the portion of land being acquired and issue a fresh award.
RECOMMENDATIONS AND CONCLUSION
The issues that arise from these court findings could be easily averted if there was strict compliance with the Law and regulations guiding the compulsory acquisition process.
To enhance the process, propriety should involve extensive survey, SPRO, R.I.M map. There should be legal checking of the existing laws, evidence recording and photograph taking according to the evidence act and inquiry testimony and oath taking during the inquiry process. Legality of Gazette notices should be ensured. Dispute resolution during inquiry should be undertaken in such a way to ensure agreeable and amicable settlement of different positions. There should be site visits and site verification against documents available. All this is in a bid to enrich the written award and ensure it’s compliant to the Law. Comprehensively, the acquiring body has a duty under the law and particularly section 112 of the Land Act to tender their own due diligence report on Land to be acquired in terms of legal, environmental, physical, title and ground status. They should provide their own valuation proposal to the National Land Commission and the claimants to also produce their own valuation proposal for the commission to do a legal, ground, survey, valuation analysis. Such will help the National Land Commission, public agencies and even courts to protect public interest in matters compulsory acquisition, reservation, possession, vesting and titling.
*LLB (Hon.s) Moi, PGD KSL.
[1] S. Keith, P. McAuslan, R. Knight, J. Lindsay, P. Munro-Faure and D. Palmer. Compulsory acquisition of land and compensation. (FAO Land Tenure Series, 2008)
[2] Jonathan Mills Lindsay, Compulsory Acquisition of Land and Compensation in Infrastructure Projects, An Explanatory Note On Issues Relevant to Public-Private Partnerships.( Vol 1, Issue 3, 2012)
[3] Section 112(1), The Land Act, 2012.
[4] Giciri Thuo & 5 others v National Land Commission & 4 others; Kenya Human Rights Commission (Interested Party) Dorcas Wairimu Kamau & 154 others (Intended Interested Parties) [2022] eKLR.
[5] Ibid.
[6] Article 47,The Constitution of Kenya, 2010.
[7] Art. 47(1), ibid.
[8] Art. 47(2), ibid.
[9] Art. 40(1), The Constitution of Kenya, 2010.
[10] Five Star Agencies Limited v National Land Commission [2014] eKLR.
[11] Ibid.
[12] Ravaspaul Kyalo Mutisya v National Land Commission [2022] eKLR
[13] Ibid.
[14] Stanley Munga Githunguri v National Land Commission [2016] eKLR
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