This is part of a series of articles from the book: ABC of Real Estate Investment in Kenya

When the Kenyan Government decided to expand Thika road into a super highway, the road reserve was not enough and so they had to acquire more land for the expansion of the road. I have heard many myths about how the Government does this and how much owners of the land and houses are paid in compensation. All this is contained in the Land Acquisition Act Chapter 295 (2009) of the Laws of Kenya.

Here are some few basic definitions for the purpose of understanding this Act

1. ―Land‖ includes all land, whether covered with water or not, and things attached to the land, or permanently fastened to anything attached to the land.

2. ―Notice of intention to acquire, in relation to land, means a notice that the Government intends to acquire the land.

3. ―Person interested, in relation to land or a building, means a person who has an interest in or right over the land or building;

4. ―Public body means:-

a) The Government; or

b) Any authority, board, commission or other body which has or performs, whether permanently or temporarily, functions of a public nature, or which engages or is about to engage in the exploitation of natural resources or the provision of power or any other activity which is of benefit to the public;

5. ―Commissioner means the Commissioner of Lands

What makes the land desirable for acquisition?

Where the Minister is satisfied that any land is required for the purposes of a public body, and that the acquisition of the land is necessary in the interests of defense, public safety, public order, public morality, public health, town and country planning or the development or utilization of any property in such manner as to promote the public benefit.

What if you have plant and machinery?

Where the Commissioner notifies the person interested that the plant and machinery may be severed and removed the person interested shall sever and remove them at his own expense at any time before the Commissioner takes possession and the plant and machinery shall not be included in the computation of the compensation payable under this Act.

Award of Compensation

Where land is acquired compulsorily under this Part, full compensation shall be paid promptly to all persons interested in the land.  After notice of an award has been served on all the persons determined to be interested in the land, the Commissioner shall, as soon as practicable, pay compensation in accordance with the award to the persons entitled there under.

Principles on which Compensation is to be Determined

In determining the amount of compensation to be awarded for land acquired under this Act, the following matters, and no others, shall be taken into consideration: the market value if, in consequence of the acquisition, any of the persons interested is or will be compelled to change his residence or place of business, reasonable expenses incidental to the change.

 What shall be ignored?

In determining the amount of compensation to be awarded for land acquired under this Act, the following matters shall not be taken into consideration:-

a) The degree of urgency which has led to the acquisition;

b) Any disinclination of the person interested to part with the land;

c) Damage sustained by the person interested which, if caused by a private person, would not be a good cause of action;

d) Damage which is likely to be caused to the land after the date of publication in the Gazette of the notice of intention to acquire the land or in consequence of the use to which the land will be put;

e) Any increase in the actual value of the land as at the date of publication of the notice of intention to acquire likely to accrue from the use to which the land will be put when acquired;

f) Any outlay on additions or improvements to the land, incurred after the date of publication in the Gazette of the notice of intention to acquire the land, unless the additions or improvements were necessary for the maintenance of any building in a proper state of repair.

g) An increase by reason of an improvement made by the owner or his predecessor in title within two years before the date of publication in the Gazette of the notice of intention to acquire the land, unless it is proved that the improvement was made bona fide and not in contemplation of proceedings for the acquisition of the land.

 What about disturbance?

To the amount of compensation so determined here shall be added a sum equal to fifteen per cent (15%) of the market value by way of compensation for disturbance.

 Conclusion

When your land has been acquired in this way, we say that it has been compulsorily acquired. The procedure outline in the act is to ensure that the process is prompt and fair.

Reference: Republic of Kenya (2009) The Land Acquisition Act Chapter 295

Government Printer, Nairobi.

Written by Kariuki Waweru. BA (Land Econ) Hons, UoN, G.I.M.S.K (VEMS)