MKK Law Insights, September 2024, No 1

DEVELOPMENT APPROVALS: LAND SURRENDER DEMANDS BY COUNTY

GOVERNMENTS

Dr Tom Kabau
Partner | [email protected]
Senior Lecturer, School of Law, JKUAT

‘It is noteworthy that the Constitution does not

recognise development planning as a basis for the
compulsory acquisition of property without
‘prompt payment in full, of just compensation’ to
the private land owner’

It is a requirement under the law that development control mandate, such as approval of development
master plans and architectural plans be approved by master plans.
the respective County Governments, among other
state agencies, as part of development control. It is It is noteworthy that the regulation of property rights
common for County Governments to require has traditionally evolved through two distinct
developers to surrender part of the land for public constitutional and legal approaches. On one part is
utilities as a prerequisite for the approval of the the physical planning or police power of the state,
master plans. Development planning is merited, and which has traditionally been premised on the
safeguards essential public utility spaces and restriction on the mode of property use for public
ambience. Nonetheless, land surrender discretion is benefit, but without the taking away of the land from
also prone to abuse by County Governments. The the proprietor, and there being no change on
surrender requirements may relate to unreasonable ownership or tenure. Consequently, the concerned
sizes, and the demanded public utilities may be state agency is not obligated to pay monetary
whimsical and excessive. compensation. On the other part is the compulsory
acquisition, or eminent domain, in which the state
Among the notable disputed surrender demands is takes away land, or part of it, from a proprietor for
the recently publicised case relating to the Tatu City public benefit and, in which case there is change of
Developers and the County Government of Kiambu. ownership, or even tenure. In such a case, the
The County is alleged to have demanded an allocation concerned state agency is obligated to pay monetary
or surrender, without any monetary compensation, compensation.
of more than 40 acres to utilities that included 2 acres
for the construction of the County Governor’s CONSTITUTIONAL THRESHOLD
house, as a prerequisite to approve the development The basis of compulsory acquisition is Article 40(3)
master plan. Since developers are keen on timely of the Constitution, which provides that the
approval of their master plans, County Governments ‘State shall not deprive a person of property of
may have their way even where there is gross abuse any description … unless the deprivation … [i]s
of discretion and unreasonableness is apparent in the for a public purpose … and is carried out in
uncompensated land surrender requirements.
accordance with the Constitution and any Act of
SURRENDER DISCRETION Parliament that … requires prompt payment in
Consequently, there is the question of whether full, of just compensation to the person’. Under
County Governments have unlimited and unfettered compulsory acquisition, which the determinant
discretion to require surrender of land for purported test is whether ownership of land or part of it is
public utilities in the exercise of their development taken away from the private proprietor’s
1

One Padmore Place, 1st Floor, George Padmore Road, off Kindaruma Road, Kilimani, Nairobi
ownership, prompt and just compensation It is noteworthy that the PLUPA Regulations, enacted
should, as a constitutional requirement, be paid. under the above stated Act, proceed to establish
It is noteworthy that the Constitution does not disputable wide discretion to County Governments
recognise development planning as a basis for the with regard to surrender of land for development
compulsory acquisition of property without ‘prompt permission.
payment in full, of just compensation’ to the private
land owner. Any discretion granted to County Government and
other state agencies to require surrender of land in
Nonetheless, property rights are not, relation to development permission under the
constitutionally, among the rights that cannot be PLUPA Regulations should not be beyond, or ultra
limited. However, any limitation of land rights should vires, the scope stipulated under the parent PLUPA
strictly adhere to the constitutional threshold of Act. Some of the wide discretionary powers granted
limitation of fundamental rights. The Constitution to County Governments are seemingly ultra vires the
requires that a limitation of fundamental rights, such PLUPA Act, and surpass the constitutional threshold
as property rights through the part surrender of limiting property rights. Such ultra vires demands,
requirements by County Governments, be and any unreasonable and whimsical requirements of
‘reasonable and justifiable in an open and democratic surrender of land by County Governments can be
society.’ challenged as being unconstitutional.

LIMITED PLANNING DISCRETION County Governments have proceeded to require

Further to the foregoing, the Physical and Land Use surrender of land even where the master plan do not
Planning Act (PLUPA) stipulates that state agencies involve amalgamations and sub-divisions as
may require surrender of part of land for public contemplated under PLUPA, and which, on the basis
utilities, access spaces and adequate truncations, as of the constitutional threshold, may be
considerations for approval of subdivisions and unconstitutional. Further, some surrender
amalgamations of parcels of land. In stipulating the requirements, such as the allegations in the case
requirement, PLUPA does not require compensation concerning the Tatu City development, the
to the land owner, but is specific that the surrender purported demand of allocation of 2 acres for a
should only be in context of subdivisions and Governor’s house by Kiambu County (if true, and
amalgamations only. It seems that PLUPA blurs and without even evaluating the merits of the other
distorts the discussed classical state regulatory contested surrender requirements) is apparently
distinction between police power (restricting use but unreasonable and capricious, and seemingly violates
without taking away land ownership and without the constitutional threshold. Such unconstitutional,
compensation) with eminent domain (taking away unreasonable and capricious surrender requirement
part of land but with compensation). Nonetheless, can be objected and opposed.
the surrender of land for public purpose under
PLUPA should strictly be within the discussed OUR SERVICES
constitutional threshold of limiting fundamental At Mugane, Kabau & Kibugi Advocates LLP, we are
rights. It cannot be a basis of negating or rendering committed to assisting our clients in matters relating
irrelevant the constitutional protection of private to real estate development, transactions and
property as a fundamental right. conveyancing, in addition to the provision of other
legal services in the context of the protection and
enforcement of property and land rights

This information does not constitute legal advice and is for general information only. For specific information regarding real estate
transactions, conveyancing, development, and protection and enforcement of property and land rights, please get in touch with Dr Tom
Kabau at: [email protected] or +254 721 628646

One Padmore Place, 1st Floor, George Padmore Road, off Kindaruma Road, Kilimani, Nairobi