When community land is to be acquired for public use

Compensation is not a very easy issue in the case of community land. [iStockphoto]

That community land, registered or unregistered, is recognised as the society’s property in the Community Land Act (CLA).

The process of compulsory acquisition of the same for public use attracts compensation for the community, or individuals, giving it similarity to private land.

That the registered communities have to avail land to all their members for economic benefit and allow “equal enjoyment of the right of use and access with no discrimination” gives it a semblance to public land.

Yet not much is discussed regarding community land, which is mostly found in pastoral areas. Private and public land is the most common, and thus most talked about, land.

Deficiencies in the Community Land Act place communities at risk of their lands not being as secure as promised ahead of formalisation, and at risk of losing some of their most valuable lands during the formalisation process, a National Land Commission (NLC) and the Kenya Land Alliance (KLA) joint public land acquisition guide notes.

The principal title under community land is vested in communities at registration. “Title may be held as a customary, freehold, leasehold or other legal entitlement,” reads the document.

“Certificate of Title issued by the Registrar will serve as prima facie evidence of the community as the absolute and indefeasible owner, except where the title has been obtained fraudulently”.

Community land is land owned by people of common ancestry, similar culture or unique mode of livelihood, socio-economic or other similar common interest, geographical space, ecological space or ethnicity. It can be “registered as a collective title in a Community Land Register set up for this purpose in each county” or not registered but with a community that is recognized to lay claim on the land.

When a community owns the land, it is expected that members of the community will benefit from the use of the land without any restrictions.

Mostly owned by pastoralist communities, such societies are expected to, as the report indicates, “avail land to their members for the purpose of grazing, and reserve special areas for farming, settlement, community conservation, access and rights of way, cultural and religious sites, urban development, or any other purpose as may be determined by the community, county government or national government for the promotion of public interest.

They should also ensure every member of the community has the “right to equal benefit from community land, full and equal enjoyment of the right of use and access with no discrimination based on gender, minority, and disability or marginalized groups”.

Compulsory acquisition

And like private land, the government may want to take over community land through compulsory acquisition. This may be in the interest of defense, due to public safety, in pursuit of public order, public morality or public health.

An emotive issue, the government ensures that land owners are well compensated in the case that their land has been taken over. Non-title holders are also compensated on the basis of occupation of land in good faith, reads the report.

“However, the CLA does not envisage compensation for community land that is already in use for a public purpose,” informs the NLC, KLA joint report.

Compensation, based on a land index value, is, however, not a very easy issue in the case of community land.

“The development of a land value index; which is an analytical representation showing the spatial distribution of land values in a given geographical area at a specific time is meant to be participatory and the product is for multiple uses,” indicates the report.  

“The application of the land value index in the assessment of compensation of community land is however constrained by the lack of adequate open market transactions on land. This deficiency can however be cured by considering other aspects of value other than the value in exchange (market value) and considering value in use (from an entrepreneurial perspective). The application of value in use however does not derive the same level of objectivity as the value in exchange and may be viewed as being more subjective or dependent on individual valuers’ bias and largely personal orientation.”

Should private investors want to take up community land with the aim of development, the procedures are different. A complete transfer of rights is not allowed by the constitution, and even then, members of the community have to consent to the transfer.

“The Community Land Act (CLA) presumes that communities will not absolutely alienate their land to investors but lease land to them. The Regulations go further, requiring notice of all consultation meetings to be placed in two national newspapers and one local newspaper, posted in all local government offices as well as in affected communities, and to allow 30 days for written submissions to be made,” the report says.

The investor is also subjected to regulations passed by a community on its whims.

“CLA makes specific provision on land requirements for investment, including that each request is subject to consultation and agreement with the community, and with payment of compensation and royalties, should an agreement be reached. A community may also determine terms of any leases, and establish requirements for the investor to conserve and rehabilitate lands,” the report says.

The process of acquisition of community land for public use goes through the pre-inquiry stage, inquiry and payment stages, which are overseen by the NLC which is mandated with management of public land on behalf of the national and county governments.

The market value of the land, damage sustained or likely to be sustained by persons interested at the time of the Commission's taking possession of the land, and reasonable expenses incidental to the relocation of any of the persons interested or who will be compelled to change residence or place of business as a consequence of the acquisition are factors considered during compensation.

Others are damage genuinely resulting from diminution of the profits of the land between the date of publication in the Gazette of the notice of intention to acquire the land and the date the Commission takes possession of the land, 15 per cent statutory disturbance allowance and other expenses incurred as a result of the acquisition e.g. profession fees, the report notes.

“The value increase occasioned by any development or improvement to the land within two years prior to the date of publication in the Gazette of the notice of intention to acquire the land is not compensated, unless it is proved that the improvement was made bona fide and not in contemplation of proceedings for the acquisition of the land,” notes the report.