When the state has its eye on your property

In October last year, three Court of Appeal judges annulled an award of Sh97 million that High Court judge Joyce Khaminwa had given to 480 villagers in Mbeere, Embu county, as compensation for their eviction in 1976 to give way for the construction of the Masinga Dam.

The appeal judges held that the Sh2 million paid to the villagers according to the market prices at the time was sufficient and that the case had been overtaken by time.

The government, through the Athi and Tana Rivers Development Authority, evicted the villagers in line with the Land Acquisition Act (Cap 295). So, under what circumstances can the government acquire private land?

According to Mr Jesse Kariuki, a property lawyer with Jesse Kariuki & Co. Advocates, although the law of compulsory land acquisition was meant to benefit whole communities, it has been prone to exploitation by both government officials and private land owners.

ABUSE OF THE LAW

“ You will be surprised to know that even though the government is often accused of overstepping its mandate with regard to compulsory land acquisition, land owners are equally culpable,” he said. He cited the case of a man who bought a parcel of land in a place where he thought the Thika superhighway would pass, hoping to be compensated by the government when he made a claim. As it turned out, the property was located on public utitilty land, so he could not be compensated.

Mr Kariuki says the interest of the communitiy is paramount, adding, “As a government official, you cannot purport to invoke the law of compulsory land acquisition when you acquire a private citizen’s land for your cronies or family even if you compensate justly and promptly.”

Although the government is not obliged to hire a valuer for a private citizen who cannot afford one, it is required by law to reconcile its valuer’s report with that of the land owner’s and reach a consensus on just compensation in line with the prevailing market prices.

Says Mr Kariuki: “Basically, the Act doesn’t give the land owner the right to decide whether or not to relinquish a piece of land that has been earmarked by the government for a community project, but it provides them with a chance to be involved in the valuation.”

If there are any disagreements, he says, the Act suggests that the parties seek legal redress.

LOOPHOLES

“Like any law, this Act has its loopholes that are frequently exploited”, he says, adding: “I don’t deny that there are cases where private land has been compulsorily acquired wrongly, but in order for the country’s real estate sector to continue growing, we need to look at the bigger picture and deal with these issues comprehensively.”

First, he points out, this law disregards natural law with regard to freedom of ownership. “While it seeks to address what is good for the community as a whole, it ignores and interferes with the land owner’s property rights. It does not provide room for private negotiation, nor does it acknowledge the need for the owner’s consent and I don’t think that should be constitutional in a sane democracy,” he says.

So, should the law be repealed? “I think that would be a little extreme when you consider that some private land may be strategic to certain government interests, like oil exploration in Turkana. But I would suggest that land owners be more involved in the acquisition through private negotiation,” he says.

According to him, compulsory land acquisition should be reserved for important projects and not be applied to any idea that comes to state officers’ minds.

Further, he adds, since the land owner is practically forced to sell his/her land, he/she should be compensated over and above the prevailing market price.

Mr Kariuki says the process of compulsory acquisition should not be rushed if both sides are to get a fair deal that leaves them satisfied. He says the process should be comprehensive, elaborate, and well planned.

“Land data should also be coordinated and harmonised in order to deter land officials and private citizens who seek to misuse this law,” he explains.