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Sections of Land Act against the law, say Kenyan surveyors

Saturday September 14 2019
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The standard gauge railway passes close to a residential house in Kajiado. A new law gives the Kenyan government a year in which to compensate landowners. FILE PHOTO | NMG

By NJIRAINI MUCHIRA

Kenya’s plans to streamline the compulsory land acquisition and compensation process ran into headwinds over concerns that a newly enacted law contravenes the Constitution.

Speaking to the media in Nairobi on Thursday, the Institute of Surveyors of Kenya (ISK) called for the suspension of the compiling the Land Value Index claiming that sections of the Act will cause undue suffering to land owners.

In particularly, ISK argues that Section 124 of the Act that empowers the National Lands Commission to compulsorily acquire land before making payment is in contravention of the Constitution that stipulates for prompt and full payment for any property forcefully acquired.

The Act gives the government a year in which to compensate the landowner based on the value in the index rather than prevailing market rates.

“Acquisition of land deprives the owner of the benefit of using the land and should be paid before taking possession. More so, government projects are budgeted for and should compensate the affected persons,” said ISK president Abraham Samoei.

He added that the basis for compensation should be the market value, and the land value index should act as a guide to interpret the trend in property pricing.

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In enacting the Land Value (Amendment) Act, 2019, that was assented to by President Uhuru Kenyatta in August, Kenya intended to end land speculation that has seen the government pay exorbitant prices for land it acquired for public infrastructure projects.

The Act is designed to protect the government from inflated land prices and unnecessary demands in the implementation of public projects.

The Ministry of Lands is supposed to develop an index detailing the value of land countrywide, which should form the basis of compensation for compulsorily acquired private land and deter courts from halting implementation of projects in case of disputes.

The index is supposed to be developed by January next year.

Thorny issue

Across East Africa, the issue of compulsory land acquisition is a thorny one, ranging from speculation by owners, inflated prices and corruption by government agencies that collude with land owners to defraud the government.

This has adversely affected the implementation of large infrastructure projects, in many instances leading to additional costs for taxpayers and protracted court cases. Or, as in the case of Kigali City, land owners were simply asked to move to make way for government development projects.

In Kenya, the Lamu Port-South Sudan-Ethiopia-Transport (Lapsset) corridor project, the standard gauge railway, the Mombasa—Nairobi pipeline and titanium mining in Kwale are some of the projects that have been mired in controversy.

The Land Value Index aims to standardise and harmonise the value of land across the country to determine rent, land rates, stamp duty on conveyance of land, and compensation of expropriated land. It also seeks to make land rates, rent, stamp duty and compensation predictable and rational.

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