Class VIIa - COMPULSORY ACQUISITION EMINENT DOMAIN.pptx

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1. COMPULSORY ACQUISITION / EMINENT DOMAIN HOW THE CONSTITUTION AND NEW LAND LAWS HAVE BEEN APPLIED

2. The requirement of Land Certain governmental actions developmental in nature for instance building of roads require land. The state may therefore take property from its private owners and reallocate it to governmental preferred uses.

3. Compulsory acquisition for public use Compulsory acquisition also e minent domain is the power of the state or its asides to acquire private property for public purposes subject to the payment of compensation. Whenever the government exercises its power, it forces involuntary transfer of property from private owners to itself or asides. The power of eminent domain is derived from the feudal notion that as a sovereign, the state holds the radical title to all land within its territory. In Kenya, the power is embodied in the constitution which requires the private property can only be acquired compulsorily for public use . Vide Articles 75 ; 173 & 118 of the Kenyan constitution.

4. Fair compensation The COK further requires that such public use must be weighed against the hardships that may be caused to the owner. The constitution further requires that the acquisition must be accompanied with payment of adequate compensation. The rules governing acquisition of trust land and compensation were contained in the trust land act whereas other cases of compulsory acquisition were emunerated by land acquisition act which has been repealed by land act, 2012.

5. Lands commission The state has powers to regulate the use of any land or any interest in or right over any land in the interest of defense, public safety, public order, public morality, public health. The COK creates Lands commission under ART 67.

6. The functions of the national land commission are: To manage public land on behalf of the national government To recommend a national land policy to the national government. To advise the national government on a comprehensive programme for registration of title in land throughout Kenya. Conduct research related to land and the use of natural resources and to make recommendations to appropriate authorities. To initiate investigations on its own initiative or on a complaint into present or historical land injustices and recommend appropriate redress. To monitor and have oversight responsibilities over land use planning throughout the country.

7. The land act provides for the procedure for compulsory acquisition of land. Under sec 107 of the Act, whenever the national or county government is satisfied that it may be necessary to acquire some particular land under sec 110 then the respective cabinet secretary or county executive committee member shall submit a request for acquisition of public land to the commission to acquire the land on its behalf. The commission is required to come up with a criteria and guidelines to be followed by the acquiring authorities.

8. The commission may reject a request from an acquiring authority if it does not meet the requirements of subsection 2 and Art 40(3) of the COK. Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause 3 who may not hold title to the land. Upon approval of a request under subsection 1, the commission shall publish a notice to that effect in the gazette and the county gazette and shall deliver a copy of the notice to the registrar and to every person who appears to the commission to be interested in the land.

9. Interested persons include any person whose interest appears in the registry, spouse or spouses of any such person as well as any person occupying the land and the spouse or spouses of such persons. Upon service of the notice, the registrar shall then give a notice to the register of all the land to be compulsorily acquired shall be geo-referenced and authenticated by the office or authority responsible for survey at both national and county governments. Once an entry has been made under sec 108, the commission shall then promptly pay in full just compensation for any damage resulting from the entry. Under sec(1)(f)(2) if a land has been acquired for public purpose or interest and the compulsory acquisition fails or ceases, the commission may offer the original owners or their successors in title pre-emptive rights to re-acquire the land but upon restitution to the acquiring authority, the full amount paid as compensation.

10. The commission has powers to make rules to regulate the assessment of just compensation. Under sec 112(1), at least 30 days after the publication of the notice of intention to acquire land, the commission is required to set a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land. The notice shall be published in the gazette or county gazette at least 15 days before the inquiry.

11. The Doctrine of Eminent Domain (Powers of the sovereign state) vs. the Constitutional Right to own property It is evident that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of man.

12. In Kenya the issue of ownership of land is quite sensitive and important to the way of life. The economy of Kenya is predominantly dependent on agriculture and therefore the need for communities and, more so, individuals to acquire property in land. Laws created should in essence be able to spur economic development with regard to land ownership and use. The Kenyan Land Policy recognizes the values of economic productivity, equity, environmental sustainability and the conservation of culture, and seeks to facilitate their protection.

13. The State, following the law, can exercise its power of eminent domain by taking an action to compulsorily acquire privately owned land for the benefit of the public. Compulsory acquisition is the power of the state to extinguish or acquire any title or other interest in land for a public purpose, subject to prompt payment of compensation.

14. An example is the case of Just V Marinette County 201 N.W. 761 in which in 1961 a couple known as the Justs purchased land along a lake. Subsequently a law was passed which designated the land and the lake as a protected swamp (wetland) following the passage of this law in 1968 the Justs commenced building on their land and dug and started placing the material that they dug out of the building site on to the wetland as a way of getting rid of it. The County sought an injunction to restrain the Justs from filling the wetland without obtaining a permit as required by the law. The Justs argued that to prevent them from using their land in this way amounted to a compulsory taking of their land without compensation.

15. The County argued that the restrictions were a proper exercise of police power and did not merit compensation. The court held that this was a restriction on the use of property not to secure benefit to the public but to prevent harm from the change in the natural character of the property. The public purpose sought to be obtained by the law was to protect navigable waters and the public rights in them from degradation which could result from uncontrolled use and development of shore lands. In this case we can infer the distinction between the doctrine of eminent domain and that of police power.

16. The Constitution provides for the right of every person to acquire and own property of any description. As seen in law and practise , this provision has its exceptions as shall be discussed further in the paper. This paper shall seek to address how Kenyan government exercises the doctrine of eminent domain. Some of the major issues of focus shall be on whether the law has been able to adequately facilitate all concerns that arise regarding this practise and entitlements accrued to the person from whom land is taken. It shall also discuss whether there is a need to develop laws to supplement constitutional provisions on private property rights.

17. History of Eminent Domain Historically , English law was founded upon the premise that all land was owned by the King. His subjects were merely permitted to make use of it. This statement suggests that all authority for tenancy or ownership to land vested and was derived from the crown. Kenya , therefore, having been under the English colonial rule, also adopted this type of tenancy where all land was vested on the crown.

18. It has been argued that State ownership of all land may be justified under 2 grounds: 1 . the first and most common is on the terms of fairness and general public development; 2. Secondly, in terms of ethics, one might defend the derogation by arguing that after all it is difficult to justify ownership of land by one individual with his whims to do what he likes with the land. As put in Tanzania’s 1967 Arusha Declaration and Tanu’s policy on socialism and self-reliance, land is given by God for the use of all.

19. Kenya, in 2010, passed its New Constitution which gives the government power to compulsorily acquire land for public purposes. This is authorized by Article 40(3b), while the procedures for compulsory acquisition are described in the Land Acquisition Act . While citizens can seek redress in courts for failure of the State to compensate them, the law does not specifically require the government to engage the public in the decision to acquire land. It only establishes who is eligible for compensation and for the proposed development on the acquired land through the Environmental Impact Assessment (EIA) process.

20. Views for Private Ownership According to John Locke, an English philosopher commonly known as the father of liberalism, property was a creation of the state. He argued that the labour of one man could transform a previously owned thing into a personal property. He went on to say, in his labour theory, that all men had a natural right to the fruits of their labour which denoted that earning the right to that thing meant the exclusion of all others. Locke’s theories sought to find a solution that would keep order in a society without having to surrender to the sovereign the full complement of individual rights.

21. It is worthy to note that although Locke did indeed advocate for individual ownership, he nonetheless expressed the view that appropriation of private possessions was naturally limited by the individual taking ownership of merely what could be used, and they would take no more than could be used because that would generate spoilage and be wasteful.

22. He avers that any product of the labour of a person which is more than he can make use of is more than his share, and belongs to others' the proprietor should thus be punished for taking more of the common goods than he can use, even though he made those goods. This reasoning has been completely ignored in our society today as a result of the ever growing capitalist state of mind where individual accumulation of property and wealth takes precedence over the well-being of the society in general.

23. In light of the views above, private ownership of property should be a guaranteed right without limits and non-interference from governmental influences. As such the Constitution has given this right in Article 40(1) albeit with exceptions and limitations to ownership i.e. the ‘public purpose’ limitation. The Kenyan constitution and other written laws have attempted to enumerate purposes which may be deemed public for the justification of compulsory acquisition of private land. Article 66 provides instances where the state may regulate the use of land. They include interests of defence , public safety, public morality etc.

24. Views for justification of Eminent Domain Thomas Hobbes, in his political theory, described all men as being driven by base instincts. He criticized private ownership of land and as such insisted on the view that individual self-interest and greed was the source of all discord. He was a defender of absolute sovereign power.

25. The Hobbesian solution for dealing with the perceived state of war in nature is both simple and dramatic. The price for order is the surrender of liberty and property to an absolute sovereign. In Kenya the law on compulsory acquisition of property by the State is as expressed above and the following conditions must be met for the acquisition to be lawful: First , there must be the public purpose requirement and secondly , requirement for the use of eminent domain is that the government must pay “just compensation” to persons whose land is taken.

26. Procedures for acquisition have been provided for under Part 8 of the Land Act, 2012. These provisions make an attempt to satisfy the reasons behind this principle in management of land and as Dr. Muigua explains in his book, any land management must attempt to balance the interests of the various groups in society so as to avert potential land related conflicts.

27. This phenomenon is well set out in the case of Joseph K. Nderitu & 23 others v AG & 2 others. The court held that art. 40 of the Constitution did grant rights to property to every person. This right could however be limited by compulsory acquisition. Before this could take place, the court had to first demonstrate that this acquisition was for a public purpose and the process had to be in accordance with Part 8 of the Land Act, 2012.

28. The current land laws have made an attempt to ensure that compulsory acquisition of land by the State is made in an efficient and transparent way. The Act goes further to provide the National Land Commission with the power to reject a request of an acquiring authority, to undertake an acquisition if it establishes that the request does not meet the requirements prescribed under subsection (2) and Article 40(3) of the Constitution.

29. POLICE POWERS The phenomenon of the Government as an owner of land was introduced by the 1902 Crown Land Ordinance. In this particular Ordinance, the crown (government) only owned “unoccupied land”. This changed in 1915 when the Crown Land Ordinance was amended and the whole protectorate became crown land that is both unoccupied land and the land that was occupied by the Kenyan tribes. The only land that was exempted was the ten (10) mile coastal strip.

30. The concept of granting individuals 999 years leases by the Government was introduced in the 1915 Ordinance. This concept was introduced because initially, the settlers were being given free hold titles which could not be regulated by the Government.

31. With the introduction of the 999 leases, the Government was able to set the terms and conditions on how town plots and agricultural land was to be dealt with. This was the only way the government could regulate the use of the land in the absence of the laws incorporating the common law doctrine of “police power” over land by that time. The Government introduced the doctrine of police powers in regulating the use of its land leased to an individual for a defined period.

32. Societal context Although proprietary rights in land confer a wide spectrum of rights to an individual, those rights are exercisable in societal context. Police power in land law refers to the power of the state to regulate private property in the public interest. Its earlier manifestation was to accept the right of the State to interfere with private property through the taxation of its citizens.

33. Public rights overriding Police power does not qualify property rights. It simply regulates the exercise of private rights for the purpose of giving effect to public rights perceived to be overriding through legislation. There are many instances of the exercise of this power in Kenya, one of them being the control of transactions in agricultural land under the provisions of the Land Control Act.

34. Conclusion The powers of the State to regulate or take over any land as provided under the Constitution and other relevant land laws must be balanced with private property rights. This view could, by implication, mean that these two principles regarding ownership are intertwined in a way that one cannot operate without considering its effect on the other.

35. For example in compulsory acquisition of land a key element that must be considered with regard to compensation is; What compensation is “just compensation”? Is one entitled to receive not only the fair market value of property but also relocation costs? In light of the above statement is the State obliged to compensate for psychic detriments such as loss of business goodwill, possible loss of income due to incalculable losses associated with leaving a business that one may have held for a long time?

36. Endorois community How about the cultural heritage of a society vis-a-vis land? Must this also be a factor the State must consider? This is best answered with reference to the landmark case of the Endorois community. Here the African Human Rights Commission Condemned the Expulsion of the Endorois people from their ancestral land by the Kenyan government for tourism development stating that this was a violation of their rights.

37. The Commission found that this eviction, with minimal compensation, violated the Endorois ' right as an indigenous people to property, health, culture, religion, and natural resources. It ordered Kenya to restore the Endorois to their historic land and to compensate them. This was the first ruling to determine who indigenous people in Africa were, and what rights they had to their land.

38. Constitutional strides Since this decision in 2010, Kenya has made strides to: a. address issues that may depict the doctrine of eminent domain as being an ‘enemy’ to private land ownership. b. ensure that such injustices are not repeated and individuals’, as well as communities’ rights to property are respected and protected in as far as the law is concerned.