The doctrine of Eminent Domain Powers of the sovereign state to compulsorily acquire private land is an affront to the concept of private ownership of land in Kenya

The doctrine of Eminent Domain Powers of the sovereign state to compulsorily acquire private land is an affront to the concept of private ownership of land in Kenya

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The doctrine of Eminent Domain Powers of the sovereign state to compulsorily acquire private land is an affront to the concept of private ownership of land in Kenya

Introduction

The system of private land ownership in Kenya is based on the Australian Torren system named after Sir Richard Torrens, who conveyed it to South Australia in 1958. The Torrens system is a system of land registry in which the government maintains all land and title records, and the land title acts as a certificate of absolute, indefeasible and legitimate possession. It is a system in which land ownership happens when a certificate that transfers property ownership is registered with the local Land Titles Office. The aim of the Torrens system is to provide land title certainty. The Torrens Title System was first adopted in South Australia in 1858 and later used in other Australian states and around the world. Torrens Title is named after its inventor, Sir Robert Richard Torrens, who was instrumental in developing this unique and effective land management scheme.

Eminent Domain

The"right of the sovereign to seize private property for public use" (Law Commission, 1958) is called the "Eminent Domain." The theory of the eminent domain is based on two maxims: "salus populi est supreme lex (public welfare is the highest law) and necessitas publica major est quam privata (public necessity is greater than private necessity)." The Eminent Domain can be generalized as a profound assumption of everything, within the geographical range, eminently belong to the State. Essentially, the eminent domain is comparable to the state 's unrivalled and uncontested prerogative of taking or acquiring of people's personal property and personal benefit in and on land, against the will of the owner and the possessor, in lieu of certain compensation entitlement, whenever and wherever it is necessary for the furtherance of public interest.

The place of eminent domain in the Constitution

The Constitution of Kenya 2010, enshrined the right to private property ownership. However, this right is not absolute following the encapsulation of the Doctrine of the Eminent Domain under the Constitution of Kenya 2010. The Constitution provides that a State shall not deprive a person of any description or interest in, or right to, the property of any description, unless the deprivation is for a public reason or in the public interest and is carried out in compliance with the Constitution and any Act of Parliament requiring prompt payment in full, of only compensation to be paid by the State.

The 2010 Constitution helps to balance the desire to promote economic growth and investment with the need to reduce harm to those whose assets are taken (involuntarily) for public purposes. The 2010 Constitution protects the right to private property, but also lays down certain provisions for the compulsory acquisition of land. While it does not define the term "compulsory acquisition," it provides for situations where a State may deprive a person of private property rights for a public purpose or in the public interest. This provision shall act as the basis on which the exercise of the power to acquire property by obligation is exercised. Article 40(3) (a) of the Constitution provides for constitutional safeguards against the arbitrarily taking over of private property by the State; like other constitutions, the compulsory acquisition of land must be for a public purpose and must be accompanied by just compensation.

In addition, international treaties impact the acquisition of land in Kenya. The 2010 Constitution reiterates that the general principles of international law as well as any treaty or convention ratified by Kenya are part of Kenyan law under this Constitution. These treaties include the International Convention on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. The latter under Article 17 stipulates that "everyone has the right to own property on his own as well as in partnership with others" and that "no one shall be unlawfully deprived of his property."

Elements of the doctrine of eminent domain

The first element of eminent domain is that it can only be pursued by the state. This is evident from the wording of the Constitution that the right to deprive a person of property is only bestowed on the State. The doctrine of an eminent domain cannot therefore be pursued by a private citizen or entity. In this case, the Government of Kenya exercises this power through the National Land Commission, which acquires the land on its behalf. The Land Act specifies that, if the national or county government is satisfied that it may be appropriate to purchase specific land under section 110, the respective Cabinet Secretary or the County Executive Committee Member shall send to the National Land Commission a request for the acquisition of public land on its behalf.

The second element is property. The exercise of the doctrine of eminent domain is a limitation the right of private ownership of property. The term property does not only refer to a physical thing which in this case being land. The court in United States v General Motors asserted that property refers to the group of rights inhering in the citizen’s relation to the physical thing.The constitutional clause is addressed to every kind of interest that the individual might have. From this meaning of the term land, it can be inferred that any individual who has any interest in the property, whether freehold or leasehold, can exercise an eminent domain.

The third element is deprivation. Deprivation is defined as a taking-away. The practice of an eminent domain contributes to the deprivation of the private property of a person. From the wording of the constitution, the state deprives a person of the right to private property by practicing the doctrine of an eminent domain. However, the Constitution of Kenya 2010 made it clear that the deprivation of the property of an individual should be in compliance with the statute. Failure to comply with the compulsory acquisition process makes the exercise of an eminent domain null and void. Reference can be made to the case of Oceans View Plaza Ltd v Attorney General. In that case, the Registrar of Deeds wrote a letter to the registered owner of the land asking him to surrender the title of the two properties allegedly created in the road reserve. The plaintiff launched a suit opposing the conduct of the Lands Commissioner. Having laid down a basic principle in his decision, which made the action null and void by the Lands Commissioner, Onyancha J held that, where the compulsory acquisition process was applied, it should be equally applied and without prejudice against all the parties concerned.

Fifth is the element of public purpose. Compulsory acquisition should be exercised where property is being acquired for a public purpose. However, this element can easily be inferred to be subjective. In the case of Kelo v City of New London, the Supreme Court of the United States of America held that the "public use" provision of the "takings clause" of the 5th Amendment of the U.S. Constitution allows the use of eminent domain for economic development purposes that provide a public benefit. The facts of the case were that New London ceded its eminent domain power to a private economic development corporation that, in turn, decided to remove more than ninety existing homes and small businesses in order to replace them with privately owned office buildings and a riverfront hotel that would complement the new Pfizer Global Research Facility. Justice Stevens argued that the use of eminent domain by the city to move land from one private owner to another for the purposes of economic growth constitutes legal public use.

The final element in eminent domain is compensation.In the event compulsory acquisition has been carried out, the owner of the property shall be compensated for the loss of the property. Compensation can take the form of money or land. In this case, the land does not exceed the amount of compensation that the National Land Commission considers would have granted. It is important that market value of the land be taken into account during compulsory acquisition.

The gaps and injustices stemming from the application of the doctrine of eminent domain under the Constitution of Kenya 2010 and enabling statutory provisions

Nixon Sifuna, a distinguished Professor of law in his article when analyzing the application of the doctrine of eminent domain in acquiring private lands notes that;

Under Kenya’s current law, the exercise of eminent powers is still largely fashioned along the draconian approach of the colonial regime. It is draconian and undemocratic in that it fails to recognize the landowner’s right of dissent, which is an integral part of the freedom of conscience enshrined in the Bill of Rights. The process is devoid of considerations of human values and principles of good governance such as negotiation, consultation, livelihood, and human rights. The state retains an upper hand as apparently all that it is required to do is put the owner on notice, thereafter his views are irrelevant.

The case of Public purpose

The primary reason upon which compulsory acquisition is normally undertaken is for the state to legally acquire the “once private property” and use the land acquired for public purposes. However, it is important to note that the term “public purpose” is a controversial issue as neither the constitution nor the various laws in place define what public purpose denotes. Thanks to compulsory acquisition from the state, the country has been able to witness development. For example, infrastructure projects such as the Standard Gauge Railways, the Thika Super Highway and Turkana Oil exploration. Although these projects have been deemed sufficient by the state to satisfy the public purpose element in the application of eminent domain, they have also received different approaches from the public especially where land compulsorily acquired is not used for the purpose that led to its acquisition. In such scenarios, the law provides that the original land owners can move back and reclaim their land.

The Land Act provide that once the land has been compulsorily acquired for the public intent or interest justifying the compulsory acquisition has failed or ended, the Commission can, upon restitution to the acquiring authority, grant the original owners or their heirs, in title, pre-emptive rights to repurchase the land. It however should be noted that the provision does not in any way guarantee land owners an automatic path to secure back their land. The discretion is with the NLC. The clause would have had a contractual effect if it reads that, "... the Commission shall give the original owners or their heirs, in title, the right to re-purchase the land ..." This can be attested by reference to the legal battle in the Town Council of Awendo v Nelson Oduor Onyango & 13 Others. Though the court ruled in favor of the respondents who were landowners, this case demonstrates how difficult it can be to grant pre-emptive rights. In this suit, private land had been purchased for the expansion of the South Nyanza Sugar Scheme in the District of South Nyanza. It later transpired that not all the land that had been compulsorily acquired was needed or could be used for the expansion of the South Nyanza Sugar Scheme. As a result, some original landowners shifted back to vacant plots of land. The appellant, the Town Council of Awendo, found itself to be entitled to use unused plots of land for the purposes of its expansion. They have taken action to take ownership of those parcels and to delete those of the respondents in their possession. It also embarked on the allocation of certain parcels of land to third parties. The key concern before the court was whether land purchased for a particular purpose and not used for that purpose could be returned to the individuals from which it was acquired. The Court of Appeal, ruling in behalf of the respondents, invoked Section 110(2) of the Land Act.

We still witness evictions of Kenyans from their homes so as to give room for development as was recently witnessed in Kariobangi where families woke up to find where they have called home in ruins. As such, our pursuit to achieve economic prosperity should not supersede our humane side. The state should ensure compulsory acquisition does not result in landlessness and increased poverty.

Equitable and just compensation

Upon completion of compulsory acquisition, the owner of the land needs to be compensated for the loss he or she may have suffered during the process. With regards to private property rights, the Constitution of Kenya 2010 provides that the rights do not apply to property that has been found to have been illegally obtained. Compensation is therefore typically a central element of the doctrine of the eminent domain, and whatever form it takes, whether it is property or money, it must be fairly directed by the concept of restitutio ad integrum, which seeks to restore the landowner to the role he held before the compulsory acquisition of his land. Most landowners dispute the amount assigned to them after the assessment of their estate. The amount is usually considered to be too low and the claim is primarily focused on the belief by landowners this their land was undervalued. Reference can be made to the case of Limo v Lands Commissioner. In that case, the plaintiff challenged the sum to be granted as compensation, arguing that the assessment carried out on his assets did not represent the right amount to be granted as compensation. The valuer who carried out an investigation on behalf of the Commissioner stated that the overall compensation estimate for the appellant amounted to Ksh 854,170. The appellant denied the number and instead demanded a sum of Ksh 2,318,976. The court held, inter alia, that the valuer had taken into account all the relevant conditions relating to the award and, thus, that the valuations rendered on the pieces of land of the appellant were fair.

It is also right to assume that there is nothing as just compensation. This is because, whatever form it takes, it is difficult to satisfy a landowner who has invested his time, money and zeal in his land. The entire compensation process robs the landowner of his bargaining control over his land and thus does not satisfy part of the agreement. This illustrates the draconian nature of the compensation process.

The case of Prompt payment

The Constitution of Kenya 2010 and the Land Act of 2012 apply the term prompt payment in full to fair compensation. However, the time limit is not exactly captured as a living room for vague interpretation. This could mean that payment of compensation could be made in weeks, months or even years. As a result, it may be problematic for the original landowners to settle down or continue their normal way of life, bearing in mind that their land has been marked for compulsory acquisition, but it is still uncertain whether it will be compensated. A good example is the SGR, where landowners were compensated after waiting for two years. Nixon Sifuna in his article while lamenting on the vague eminent domain in our laws that is to the satisfaction of the elite while at the same time being an injustice to the affected landowners. He notes that

Another flaw in the Kenyan practice is that the reasons set out in the law for compulsory acquisition are as vague and ambiguous as to be incapable of certainty. There is need for the law to clearly define the meaning of terms such as public uses, public body, and public interest, prompt and full compensation. Unless the contexts in which these terms are construed are expressly spelt out in the law, they may be cited to justify even uses that are against the public good, such as the selfish interests of the ruling political elite.

Conclusion

Private property is both government dependent and endangered. Government creates and enforces the rules on property ownership and use, determines the nature and substance of property rights, and settles conflicts over those rights through its courts. At the same time, government laws impose restrictions on private property and often have an effect on private property of kill a great part of its worth. This is an inherent tension. The legislation itself has created a disparity between private property rights and compulsory acquisition. Both sides serve the relevant function of protecting the rights of persons and the rights of the public. The gap is only to be sealed by the maker. There must also be a compromise between the two, that is, private property rights and compulsory acquisition, where eminent domains are no longer seen to infringe private property rights.