Compulsory acquisition of Interests in land

This is also known as eminent domain which is the power of the state to extinguish private property
rights for a public purpose subject to prompt payment of compensation.
The requirements are;

Give notice
Pay compensation
Land granted in lieu of compensation
NLC to compulsorily acquire land on behalf of county and national government

The right to property is protected in the Constitution. The power of eminent domain has in the past
been abused hence safeguards against that danger have been provided for in the constitution1 which
states that the State shall not deprive a person of property unless:

The deprivation is in accordance with Chapter 5 of the Constitution2

The deprivation is for public purpose or in the public interest
Prompt and just compensation is paid to the person deprived of property
The person who has interest in the land is allowed access to a court of law.

Public purposes means for the purposes of:3

Transportation including roads, canals, highways, railways, bridges, wharves and airports.
Public buildings including schools, libraries, hospitals, factories, religious institutions and public
housing.
Public utilities for water, sewage, electricity, gas, communication, irrigation and drainage, dams
and reservoirs.
Public parks, playgrounds, gardens, sports facilities and cemeteries.
Security and defence installations.
Settlement of squatters, the poor, landless, and the internally displaced persons.

It must be shown that the land will promote public benefit, such benefit being weighed against the
hardship the acquisition will cause the owner.
For trust land, compulsory acquisition is referred to as setting apart and may be done by the county
governments or the commissioner of lands.

Article 40(3) Constitution of Kenya 2010

Chapter on Land and Environment
3
Land Act No. 6 of 2012 section 2
2

During the previous dispensation, procedures provide for in the Land Acquisition Act4 were either
abused or not adhered to leading to irregular acquisitions, poor management and abuse of power and
process.
The National Land Policy further recommends that:

The law on compulsory acquisition to be reviewed.

The power of compulsory acquisition to be exercised exclusively by the state and local
authorities (county governments) through the National Land Commission.
Pre-emptive rights for the original owner or successor in title where public purpose for the
compulsory acquisition fails or ceases. This means that the land may be reinstated to the
original owner if there is no public purpose or the land remains unused.

Establishment and maintenance of settlement schemes

Sessional Paper No. 3 on National Land Policy outlines challenges that have been faced in the past when
it comes to settlement of squatters. These include:

No clearly defined procedures for allocation of land.

No clearly defined procedures for identifying and keeping records of genuine squatters and
landless people.
Manipulation of lists of allottees leading to exclusion of the poor and landless.
Underutilization of land by allottees.

To streamline land settlement procedures, The Land Act5 has provided for establishment of a settlement
scheme. The National Land Commission has been tasked with the implementation of settlement
programmes on behalf of the national and county governments.6
Settlement programmes include provision of access to land to:
i.
ii.

Squatters
Persons displaced by; natural causes, development projects, conservation, internal conflicts

Identification of beneficiaries is to be carried out and verified by a sub-county selection committee.

The National Land Commission has the power to reserve public land for establishment of approved
settlement programs and where public land is not available, purchase private land subject to the Public
Procurement and Disposal Act7 or any other law.

Cap 295 Laws of Kenya (repealed pursuant to the Constitution of Kenya 2010)
No.6 of 2012
6
Land Act No. 6 of 2012 Section 134(1)
7
Cap 412C
5

The land in settlement schemes must be allocated in accordance with national principles set out in
Article 10 of the Constitution and principles of land policy in Article 60(1) of the Constitution.
Land acquired through a settlement scheme shall not be transferrable except through process of
succession.8 This provision in the Land Act is to curb the challenge of habitual squatters. These are
persons who are allocated land, sell it, use the proceeds of the sale and become landless again.
Beneficiaries of settlement schemes are required to pay a sum determined from time to time by the
National Land Commission.
The Land Settlement Fund is established by Section 135 of the Land Act. The fund is also administered
by the NLC. The fund is to be used for the following purposes:

Provision of access to land to squatters, displaced persons, for development project and
conservation
Purchase of private land for settlement programmes
Establishment and management of refugee camps
Provision of shelter and a livelihood to persons in need of settlement programmes
Research, documentation and dissemination of information on settlement programmes

Settlement of squatters, the poor and landless, and the internally displaced persons has been listed as a
public purpose in the Land Act9 therefore may be justification of compulsory acquisition. This however
raises collateral issues of resettlement of persons in areas where they are not accepted by the
communities around there. A good example would be the Maasais in Narok refusing resettlement of
internally displaced persons on grounds that they were foreigners on their land.
Another problem that many resettled persons complain of is the low or lack of productivity of the land
they have been resettled on in comparison to the land they had been on.
Easements and analogous rights
Easements refer to the right to use the property of another, most commonly the right of way, and
concerns adjoining lands. The nature of easement is found in the Act10. Rights created by an easement
include:

Right to do something over, under or upon servient land.

Right that something should not be done
Right to require the owner of servient land to do something over, under or upon that land
Right to graze stock on servient land

Land Act No. 6 of 2012 Section 134(7)

Ibid; Section 2
10
Ibid; Section 138
9

However, those rights dont include right to take away anything from servient land or right to exclusive
possession of any land.
Unless an easement has been created for specific period of time, an easement burdens the servient land
and runs with the land for the same period of time as the land or lease.
Where easement is refused, an owner of any dominant land may apply to a court for an entry order
authorizing his/ her entry on servient land for purpose of doing anything necessary/ desirable on that
land.
In determining whether to grant an entry order, the Court shall have regard to:11

11

Nature and conduct of the negotiations between owners of the dominant and servient land with
respect to any attempt by the owner of the dominant land to obtain an easement for the
purpose for which the entry order is applied for.
Urgency, importance and desirability of the work for which the entry order is being applied for.
Scope of the work and the length of the time for which the entry order is being applied for.
Whether the applicant has applied for or obtained all permissions required from all relevant
public authorities to execute the works.

Land Act No.6 of 2012 Section 139(3)

RIGHT OF WAY
An owner of any dominant land may apply to the court on the prescribed form for an order authorizing
his entry over any servient land for the purpose of erecting, repairing, adding to, painting or demolishing
the whole or any part of any structure.12 This order is referred to as an entry order.
The applicant shall give not less than fourteen days notice of his intention to apply for the above
mentioned order in writing, to the owner of the servient land and the local authority having jurisdiction
in that area.13
The court after hearing the applicant and persons to who notice was given may make an entry order
authorizing the applicant to:
(a) Enter on or over the servient land for any purpose specified in the order, personally or through
his employees, agents, or contractors.
(b) To use for that purpose any vehicles and other means of transport and any plant machinery,
cranes or other equipment as are specified in the entry order.
(c) Store on the servient land such materials as may be required for the purposes of the work and in
quantities that are specified in the entry order.

An owner of landlocked land may apply in the prescribed form to a court for an access order, granting
reasonable access to the land.14
The National Land Commission may create a public right of way which may be:
(a) A right of way created for the benefit of the national or county government, a local authority, a
public authority or any corporate body to enable bodies to carry out their functions.
(b) A right of way created for the benefit of the public.

12

)Land Act, 2012 Section 139(1)

Ibid, section 139(2)
14
Ibid, section 140(1)
13