Abstract
The National land Commission has the mandate of compulsorily acquiring land for public use on behalf of the National as well as county governments. many are the times that this is done procedurally wrong. so what is the process under law??
The Constitution of Kenya
affirms the right to property under Article 40. The scope of this checklist
will relate to the right to property as regards land. Article 40 states that every
person has the right either individually or an association with others to own
land in Kenya. Land is a very sensitive issue and the state has radical title
to all the land in Kenya. Article 40(3)(b) provides that the state can deprive
a person of property if it is for a public purpose/public interest in
accordance with the Constitution and any Act of parliament that requires prompt
payment in full and just compensation to the person and must allow the affected
person a right to access the courts of law.
The Act of parliament that
provides for compulsory acquisition in land is the Lands Act No 6 of 2012. Under section 107(1) once either the county or
national government wants to acquire land for public use. The respective
Cabinet secretary or county executive committee member shall submit a request
to the National land commission to acquire land on its behalf.
The Commission may accept or
deny the request[1].
The reasons for denial may be that the request does not adhere to Constitutional
guidelines. Where it accepts the request, the Commission may prescribe a
criterion of guidelines to be followed by the acquiring authority[2].
Further on acceptance of the
request the Commission shall publish a notice in the national gazette as well
as the county gazette to the effect of acceptance. The notice must then be
served to the registrar and the persons interested in the land.[3](Persons interested in the land
are people who either have title to the land or who are in actual occupation of
the land or their spouses).
The registrar shall then put
down in the register, the intended acquisition.
Where the state wants to compulsorily
acquire land, just compensation must be paid promptly and in full to all the
interested persons. The Commission may make rules as to the assessment of just
compensation[4].
Thirty days after publishing
notice of intention to acquire land. The Commission will appoint and publish a
date of inquiry to determine proprietary and compensation issues. This notice date
of inquiry should be published in the National as well as County gazette at least
15 days before the inquiry date and further serve a copy of such notice to all
interested parties[5].
This notice shall demand that
the interested persons submit written claims of compensation to the Commission
on or before the hearing date. On the hearing date the Commission shall
determine who the interested persons are and receive written claims for
compensation[6].
The Commission may postpone
this date of inquiry from time to time for sufficient cause[7]. For purposes of the
inquiry the Commission shall have all the powers as a court viz a viz summoning
and examining witnesses, administering oaths and compelling delivery of title
to the land[8].
Upon conclusion of the inquiry
the Commission shall draw up separate written awards to every person that has
been established to have an interest in the land[9].
This written award shall serve
as conclusive evidence of size of the land, in the opinion of the Commission
the value of the land and the compensation payable (whether the persons
interested appeared before the Commission or not). Every award is filed at the
Commission’s offices. Soon after the commission makes the written award it
shall serve on every interested person a notice of the award and an offer for compensation[10].
Upon acquisition and prior to taking
possession of the land the Commission may agree with the owner of the land that
instead of receiving monetary compensation they may be given a grant of land
instead. The grant of land must be of similar value to the compensation and
this would serve as full compensation. Further such an agreement must be
recorded on the written award[11].
After the notice of award has
been served on all the interested persons, the commission shall promptly pay
compensation in accordance with the award to persons entitled to it thereunder[12]. It is only after an
award has been made and payment of the first offer made that the Commission may
take possession of the land[13]by serving a notice to all
interested persons that on that specified day the land is now vested under the
national or county government free of encumbrances.[14]
Any dispute that arises from
this process may be referred to the Environment and Land Court[15]
[1]
Section 107(3) Land Act No 6 of 2012
[3]
Section 107 (7) Land Act No 6 of 2012
[4]
Section 111 Land Act No 6 of 2012
[5]
Section 112 Land Act No 6 of 2012
[6] Section
112 (3) Land Act No 6 of 2012
[7]
Section 112 (4) Land Act No 6 of 2012
[8]
Section 112 (5) Land Act No 6 of 2012
[9]
Section 113 (1) Land Act No 6 of 2012
[10]
Section 114 (1) Land Act No 6 of 2012
[11]
Section 114 (2) Land Act No 6 of 2012
[12]
Section 115 Land Act No 6 of 2012
[13] Section
120(1) Land Act No 6 of 2012
[14]
Section 120(2) Land Act No 6 of 2012
[15]
Section 128 Land Act No 6 of 2012
