Balancing the Scales: Principles of Kenyan Property Law and
the Dilemma of Compulsory Acquisition
INTRODUCTION
The power of the state to acquire private property for public purposes, a concept often termed eminent
domain or compulsory acquisition, stands as a fundamental aspect of governance. While this power is
essential for public development and the provision of necessary infrastructure, its exercise inherently
involves a tension with the individual's right to property, a right historically considered fundamental
and encompassing not just ownership but a complex bundle of interests.. Understanding these
principles requires acknowledging the evolving interpretations of property rights, the historical context
of land ownership and acquisition, and the ongoing efforts to strike a proper balance between public
needs and private interests. This essay will explore the doctrine of compulsory acquisition, the legal
safeguards of just compensation and procedural fairness designed to protect property owners, and
critically examine alternative solutions to outright acquisition that aim to reconcile public objectives
with the preservation of private property rights.
Compulsory Acquisition
Compulsory acquisition, also known as eminent domain, is the legal process by which a government
takes private property for public use, with fair compensation to the owner1.The doctrine of eminent
domain inherently creates a tension between the individual's fundamental right to property and the
state's duty to act in the public interest2. While the state's power to acquire land for large-scale
agricultural project aimed at enhancing food security and promoting economic development is
recognized, its exercise must be carefully undertaken to protect against arbitrary deprivation of
property.
This power is rooted in the idea that the sovereign holds radical title to land and can force involuntary
transfer for the benefit of society3. Public purposes typically include infrastructure projects like roads,
schools, and other public amenities. The expansion of agriculture to ensure food security can also be
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) (n 2).
2 Hoopes, Neal (2013) “The Fundamental Flaw of Eminent Domain
Jurisprudence,” Brigham Young University Prelaw Review: Vol. 27 , Article 10.’
3 Ogendo, H.W.O. (1978). The Political Economy of Land Law: An Essay in the Legal Organization of
Underdevelopment in Kenya, 1895-1974. PhD Dissertation, Yale 1978 . University of Nairobi School of Law. See
also Wanjala, S. (2000). Essays on Land Law: The Reform Debate in Kenya. Faculty of Law, University of Nairobi.
argued as serving a crucial public purpose, aligning with the Utilitarian perspective that property rights
should be allocated to maximize overall societal well-being.
However, the exercise of eminent domain is subject to several limitations. The acquisition must be for a
genuine public purpose or in the public interest4. The necessity of the acquisition must be such as to
afford reasonable justification for any hardship caused to those with an interest in the property. Most
importantly, the Constitution mandates the prompt payment of full and just compensation and
guarantees access to a court of law for those whose property is acquired5.
RIGHTS OF THE AFFECTED LAND OWNERS
The affected landowners possess a constitutionally guaranteed right to property, which includes the
right to own, use, and dispose of their land6. This right cannot be arbitrarily taken away without due
process and just compensation. The affected landowners opposed the acquisition, arguing their long-
term occupation, cultivation, investment in the land, and the deep personal and cultural connection they
held with it. Even in the absence of formal registration, these claims represent significant interests that
cannot be summarily dismissed.
The affected landowners in the present several arguments against the compulsory acquisition, which
can be analyzed through various property law theories. The first is the Generational Occupation, Labor,
and Investment theory. The landowners emphasized their long-standing occupation, cultivation, and
investment in improving the land over generations, arguing that this gave them a strong claim to
ownership and that their connection to the land was deeply personal and cultural.
John Locke's philosophy, also connects labor with the justification for property ownership7. His
arguments revolve around the idea that property rights originate from natural law and individual labor.
The landowners' argument implies that their sustained labor and investment over generations have
imbued the land with their efforts and therefore established a moral claim to it.
Additionally, their generational ties suggest a form of First Occupancy, where long-term, continuous
use and control of the land, potentially recognized under customary law, could be seen as establishing a
prior claim.
4 Ellen Paul, Property Rights and Eminent Domain (First, Transaction Publishers
1986).
5 Article 40(3)b of the Kenyan constitution 2010.
6 Ibid, 40(1).
7 John Locke,Two Treaties of Government (first published 1690,Peter Laslett ed, Cambridge university press 1988)
The landowners viewed their connection to the land as deeply personal and cultural, forming part of
their identity and heritage. This aligns with the personhood Theory, which argues that certain forms of
property become so intertwined with an individual's identity and well-being that their deprivation can
cause significant non-economic harm.
LEGAL FRAMEWORK
Article 40 of the Constitution of Kenya 2010 guarantees the right to property to all citizens. However,
this right is not absolute and is subject to limitations prescribed by law, including the power of the state
to acquire land for public purposes or in the public interest8. This article stipulates that such acquisition
must be carried out in accordance with the Constitution and an Act of Parliament that: Requires prompt
payment in full, of just compensation to the person, allows any person who has an interest in, or right
over, that property a right of access to a court of law9.
The Land Act ,section 107-133, provides the detailed legal framework for the compulsory acquisition
of land in Kenya. The process typically involves the National Land Commission (NLC) certifying in
writing that the land is required for public purposes or in the public interest for a stated public
purpose10, followed by the publication of a notice of intention to acquire the land in the gazette and the
delivery of a copy of the notice to the registrar and every person who appears to have an interest in the
land11. The Act also outlines procedures for ascertaining the suitability of the land, valuation for
compensation12, and addressing objections and inquiries.
A case law example is the case of Patrick Musimba v national land commission13.The petition sought to
highlight alleged systematic failures by the respondents in implementing and undertaking the Standard
Gauge Railway (SGR) project, specifically focusing on alleged denials and breaches of fundamental
freedoms and rights under the Constitution, particularly the right to just compensation for compulsory
land acquisition and the right to a clean and healthy environment.
The petitioner raised two main issues for the court's determination: Whether the compulsory land
acquisition process for the SGR project was conducted in accordance with the Constitution and the law,
whether the SGR project, its environmental impact assessment study and report, and the license comply
with the Constitution and the law.
8 Article 40(3) of the Kenyan constitution 2010.
9 Ibid, 40(3)(b).
10 Section 107of the Land Act.
11 Ibid, 108.
12 Ibid, 113.
13 Patrick Musimba v National Land Commision & 4 others [2016] Eklr.
The court, after considering the submissions from all parties, dismissed the petition . The court found
that the compulsory acquisition process was not inconsistent with the Constitution or any written law .
The court held that while the Land Acquisition Act (Cap 295) was repealed, its subsidiary legislation
remained applicable until the National Land Commission issued its own rules. The court was satisfied
that the Petitioner and his constituents were made aware of the intended acquisitions and given
opportunities for inquiry regarding compensation. This case emphasised the principles of compulsory
acquisition claiming that it must follow due process, compensation should not just include land value
but also loss of livelihood and improvements and that the affected land owners have the right to
challenge the acquisition in court.
Another case is between Hon. Attorney General v. Zinj Limited. The Supreme Court clarified several
crucial aspects regarding compulsory acquisition. The court stated that the only lawful way for the
government to deprive a person of their property is through compulsory acquisition that adheres strictly
to the provisions of Article 40(3) of the Constitution and the relevant applicable law at the time, which
was the Land Acquisition Act (now repealed).
The court emphasized that for a compulsory acquisition to be lawful, certain the mandatory processes
must be followed. In this case, the Supreme Court found that the government's issuance of duplicate
titles over a portion of Zinj Limited's land in favour of third parties was unlawful and a violation of
Zinj Limited's right to property because these mandatory procedures were not followed. The court
explicitly stated that this action could not be considered a "compulsory acquisition" as understood by
the law. Instead, it was deemed a "brazen and an unlawful deprivation" of the respondent's property.
Consequently, because the government's actions did not constitute a lawful compulsory acquisition, the
Supreme Court concluded that the principles governing compensation for compulsorily acquired land
were not applicable in this situation. The appropriate remedy in such a case of unlawful deprivation
was an award of damages, as initially held by the Environment and Land Court, limited to the portion
of land over which titles were unlawfully issued.
APPLICATION OF LEGAL PRINCIPLES
Any limitation on the right to property must be proportionate to the public purpose sought to be
achieved. The courts must assess whether the benefits to the public outweigh the harm caused to the
individual landowners.
There must be a clear and demonstrable connection between the compulsory acquisition and the stated
public purpose. The land acquired must be necessary and suitable for the intended public use.
The entire process of compulsory acquisition must adhere to principles of fair administrative action.
This includes providing adequate notice of the intention to acquire, conducting a fair inquiry to
determine interested parties and receive claims, and ensuring the right to be heard.
Human Dignity and Equity: As fundamental tenets of the Constitution, the courts must consider the
impact of the acquisition on the dignity and livelihoods of the affected landowners. Principles of
equity and equivalence should guide the determination of compensation, aiming to restore the
dispossessed owners to a position as close as possible to their previous state.
The Constitution mandates full and just compensation for compulsorily acquired land. The courtsplay a
crucial role in ensuring that the compensation awarded is fair, reflects the market value of
the land, and accounts for any disturbance, damage, or expenses incurred due to the acquisition.
The promptness of payment is equally critical. It should aim to put the dispossessed owners in a
position no worse than they were before the acquisition. This might include consideration of.
Landowners should also have access to courts to challenge the legality of the taking and the adequacy
of the compensation.
Ultimately, the court's decision should strive to achieve a fair and just outcome, ensuring that the public
benefit derived from the acquisition is balanced against the protection of individual property rights and
the human dignity of the affected landowners. This requires a careful consideration of all relevant legal
principles, including proportionality, procedural fairness, and the imperative of just and equitable
compensation, potentially informed by a rights-based approach that acknowledges both formal and
informal rights and interests in land.
CONCLUSION
IIn summary, a Kenyan court handling a compulsory acquisition dispute must thoroughly analyze the
Constitution and statutory law. Key considerations include: **Public Purpose, Procedural Fairness and
Just Compensation which should go beyond market value to account for, Generational occupation,
labor, and investment, Cultural and personal connections, Social and economic displacement.
The court should apply the principle of proportionality, ensuring the least intrusive means to achieve
public benefit. Drawing on property law theories and a rights-based compensation approach, the court
must balance public development needs with the landowners' rights and dignity. Kenya’s history of
land issues underscores the importance of a sensitive and equitable resolution.
