Legal options when State takes over private property

By Harold AyodoInvestors have for a long time been at loggerheads with the Government for allegedly taking over their property without notice. Both foreign and local investors have on several occasions moved to the High Court seeking orders to re-possess property disinherited by the State.Former Taveta Member of Parliament, Basil Criticos, is among property holders who have spent months battling the acquisition of their expansive lands by the State. More landowners may soon ride the same boat with Criticos as the Government seeks ways of re-settling hundreds of Internally Displaced Persons (IDPs) countrywide.Eminent domainRecent Kenya Red Cross Society figures show that 2,460 people are still camping at the Eldoret showground while 58,183 people are in transit camps in the North Rift alone. Another 2,109 people are still at the Molo Sawmill camp. Collectively, 127,000 internally displaced persons in the North Rift, Nyanza and Western provinces receive food from the Kenya Red Cross Society.Hundreds of other residents in Isiolo were last October given notice by the Department of Defence to vacate their land for expansion of a military training field. A Government-sanctioned demolition in process. The State can obtain property from owners for purposes of town planning, development or utilisation for public benefit. Photos: File/StandardThe residents in Isiolo were subsistence farmers at Maili Nane, Bula Gudud and Kambi Sheikh for over 45 years. Winning cases on property (especially land) against the State is a herculean task following provisions in Chapter Five of the Constitution on the supreme law, which states that the Government has overriding interest over matters of access, control and management of land irrespective of the tenure held or owned.Powers of State over land are constitutionally referred to as either radical title or eminent domain. Radical title traces to the 1885 Berlin Conference when Kenya was granted to the British through the Imperial British East African Company.Section 75 (1) of the Constitution empowers the Government to compulsorily acquire legal property from investors over assorted reasons. Eminent domain is a powerful instrument of public policy that the State can invoke at will for the interests of disadvantaged citizens.The State can also obtain property from owners for purposes of town planning, development or utilisation to promote public benefit. Other provisions in the Constitution that empower repossession of property are in the interests of defence, public safety, order and morality.The Government has, however, been accused on several occasions of mismanaging public land on grounds of exercising eminent domain. Powers given to the President, Commissioner of Lands and Local Authorities by law have abused the wide discretionary powers through alleged irregular allocations. The bone of contention in the compulsory acquisition has been with the Government allegedly obtaining property without due notice to investors. The Land Acquisition Act Chapter 295 provides for due notice, publication in the Gazette and compensation before Government obtains private land. Due noticeTherefore, investors whose properties have been compulsorily acquired by the State can move to court to seek compensation.Section 84 of the Constitution has provisions for enforcement of breached fundamental rights, which includes owning of property. Section 75 (2) of the Constitution empowers people whose properties have been compulsorily re-possessed direct access to the High Court.Dispossessed owners can seek their interests, rights, the legality of the acquisition and the amount of compensation they are entitled to. The Government can either compensate disinherited property owners monetarily or issue them land elsewhere.In his academic paper titled: ‘Land Policy Development in East Africa: A Survey of Recent Trends’, legal scholar Prof Okoth Ogendo traces back the powers of State over land to 1884 during the Berlin conference where colonial powers met and resolved to partition and rule East Africa.Crown landsBritish authorities regarded all land in Kenya as ‘Crown Land’ available for alienation to white settlers after the country was formally declared a Colony in 1920. Land reserved for use by Africans was also classified as Crown Lands, meaning they were available for repossession and alienation at any time.Ogendo says a clear separation in colonial law was made in 1938 between Crown Lands and Native Lands (for use by Africans). Private titles were granted to white settlers while Native Lands could only be held in trust by those in actual possession. The private ownership rights derived from the sovereign (today the President) remain as legitimate reminiscent of colonial times. The Government is yet to come up with an innovative land rights system for the country 45 years after independence. We lack a consolidated body of Land Law since the Registered Land Act (RLA) Cap 300 was enacted in 1963.

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