No registered title deed? Compensation is still possible
By Harold Ayodo
| Jan 15th 2015 | 3 min read
Kenya: Property owners without registered title deeds can be compensated when the Government compulsorily acquires their investment.
A provision in the Constitution makes the reimbursement possible to unregistered occupants of land in good faith. “Provision may be made for compensation to be paid to occupants in good faith who may not hold title to land,” says Article 40(4) of the Constitution.
The compensation at market rates will be paid only after the State acquires the property for a public purpose or interest like construction of a road, hospital, school or market.
However, occupants who are against the acquisition or compensation are at liberty to seek intervention in court.
The provisions are meant to protect the right to property as it further forbids Parliament from enacting laws that may arbitrarily deprive people of their property.
However, the constitutional rights to private property do not extend to investments found to be acquired unlawfully. Following the constitutional provision to compensate occupants of property in good faith, the Government should warm up to a series of suits in the wake of its infrastructural developments.
For instance, the last I checked, Treasury had set aside a whopping Sh9 billion to compensate people whose land will be acquired for construction of the standard gauge railway.
The standard gauge railway is one of the projects of Vision 2030 that was launched by President Kenyatta in 2013 with China Road and Bridge Corporation signed to undertake the project. Transport Principal Secretary Nduva Muli was reported in the media saying that the Kenya Railways Corporation targets 11,000 acres of land for the Sh327 billion project.
He said the Transport ministry and Kenya Railways were negotiating with the National Land Commission to ensure compulsory acquisition is done legally.
The Commission, he said, would provide land valuation expertise and assessment of amounts to be paid to the people affected.
For starters, the estimated 11,000 acres are expected to be acquired from private land, from Mombasa to Nairobi.
Separately, the State will have to compulsorily acquire thousands of acres of land towards construction of the Sh2 trillion Lamu Port and South Sudan Ethiopia Transport corridor (Lapsset).
Lapsset will see Lamu, Isiolo and Lodwar transform into resort towns and special economic zones.
The project also known as the second transport corridor comprises the Lamu port at Manda Bay, a railway line, highway, oil refinery, oil pipe line and airports at Isiolo, Lamu and Lodwar.
Even as the State sets aside money to reimburse owners who are registered, there are several families without registered title deeds that occupy the ear marked tracts of land.
Consequently, chances are high that there could be a series of law suits as disgruntled families without title deeds troop to court after being left out of compensation lists.
Many of the families would argue that they are innocent and occupants in good faith and their forefathers were even buried on the land.
Take the recent case of Lamu where Lands Cabinet Secretary Charity Ngilu annulled a list of residents set to benefit from compensation and ordered a fresh identification process.
There were two controversial lists that contained 146 names from the national and county governments which Ngilu said were not realistic.
Ngilu who said that she visited the area with 100 surveyors late last year, assured that genuine owners would first be given title deeds before compensation.
Earlier, the Government had announced that Sh1 billion had been set aside for the families’ compensation, while the Kenya Ports Authority assured that residents with land in the affected areas will get Sh1.5 million per acre as compensation.
— The writer is an advocate of the High Court
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