Landowners will be required to provide evidence that the land they are selling to the government during compulsory acquisition is profitable to qualify for compensation.
In addition, regulations dictating how the government pays when acquiring land for public use require landowners to produce tax returns filed before the Kenya Revenue Authority (KRA) as proof that the targeted property was making money.
The shocking revelation that one may not get more than they bought a property if it was set aside for speculation purposes, is contained in a court battle over the Land (Value) Amendment Act 2019.
The fine print would have gone unnoticed were it not for a court case filed by Haki na Sheria before the Environment Court in Nairobi.
The lobby though Bashir and Noor Advocates argues that the regulations are more punitive to community landowners and have left it to the minister of lands to determine ‘just compensation’ for affected persons.
It says the law is vague and discriminatory to community land owners as it is presumed that land derives value from material structures.
Meanwhile, anyone who expects money from the government should change their mind as the law now allows the government to offer an alternative land of equal value to you for a swap.
At the same time, the government may consider paying for your land in a lump sum or stagger it for a period of not more than one year.
Further, the government can opt to give you bonds as payment or equity shares in a government-owned entity or decide any other lawful means of compensation.
Landowners cannot develop a property once they have been notified by the registrar that the government has the intention to buy it.
Haki na Sheria asserts that the regulations have left it to the government to determine how much it will pay for community land.
It argues that ancestral land holding, pastoralism, use of land for grazing areas, hunting and gathering, and use of land for shrines are some of the community land uses that ought to be factored in while assessing community land value.
According to the lobby, this is likely to lead to undervaluation or devaluation of the properties held by communities.
Haki na Sheria has sued the Attorney General and the National Land Commission (NLC).
“It is the petitioner’s case that the preparation of an index for the purpose of compensation for compulsory acquisition made entirely by the government entities (the main party and the acquirer in compulsory acquisition process) to the exclusion of the second respondent (NLC) the independent regulator and other relevant stakeholders may not produce a fair result,” Haki na Sheria argues.
If a land owner is aggrieved about the offer by the government, the law requires them to approach the Land Acquisition Tribunal for recourse.
However, the tribunal members will be nominated by the Lands Cabinet Secretary, AG, and the Judicial Service Commission.
The lobby argues that the tribunal consists of state appointees and has no relevant stakeholders such as valuers who have the knowledge of land valuation.
The law however limits anyone aggrieved by the tribunal of raising about the valuation of their land upon appeal before the court.
“The petitioner’s case that this chain of resolution is unfair and unreasonable and stands contrary to the community right to land, access justice, and fair administrative action. Accordingly, in light of the bias criteria for assessment of the valuation of community land highlighted above and the flawed dispute resolution mechanism,” the lobby argues.