The Concept of Eminent Domain (Kenyan Case Study)

Does the concept of eminent domain infringe the constitutional right of an individual to own property in any part of Kenya?

Eminent domain, otherwise referred to as compulsory acquisition of land, is the government’s power to take privately owned land compulsorily for public use. The doctrine of eminent domain therefore invokes to government’s competence to acquire property which would otherwise be for private use for purposes of meeting a public requirement. This makes public use the operative element for the exercise of these powers. Such competence is said to be inherent in any government and on the strength of its exercise, the state can compel the transfer of private property from private hands for purposes of reallocating the same to a governmentally preferred use.

In terms of its origin, eminent domain can be traced back to ancient Rome where the practice of taking privately owned land by the state was widespread. It entailed seizing of private property subject to certain conditions mainly payment of compensation. The state may in certain instances compulsorily acquire property of any description subject to conditions either constitutionally set or set by statute or other written law.

The issue of whether the concept of imminent domain infringes the constitutional rights under the new constitutional dispensation is substantive. The main question is whether, under the new constitutional dispensation, there are provisions that bar the government from compulsorily acquiring private land. And if there is, are there any constitutional or statutory safeguards to limit this power so that there do not arise cases of abuse of the power vested on it by the constitution. The third issue is whether these constitutional safeguards under Article 40 (3) if effectuated, give rise to fair and just compensation on the part of the proprietor of the land in question. Lastly, does the concept of eminent domain actually infringe the constitutional rights of an individual to own property in any part of Kenya?

The constitution is clear that land acquired within the confines of the concept of eminent domain must be in accordance with any statutes or be for a public purpose or in the public interest and that the transfer be carried out in a manner that is consistent with the provisions of the constitution which allow the person who has a legal interest in the land to receive prompt payment in full of just compensation and also a right to access to a court of law.

The constitution of Kenya provides for safeguards that allow the government to compulsorily acquire land for a public use. It is however clear on the circumstances under which the power may be exercised.

 The constitution of Kenya (2010), by dint of Article 40 (1) provides for the right to acquire and own property of any description and in any part of Kenya. Sub Article 2 of the same however gives the state or any person the power to arbitrarily deprive a person of property of any description or interest but in contemplation of Article 27 (4) which provides for non-discrimination of any person either directly or indirectly on any ground whatsoever.

Property rights deprived may only be done so with regard to certain preconditions. These are that property must be shown to be required for public benefit; that on a balance of convenience the balance should be such that it justifies the concurrent hardship that is visited on the property owner so affected; and upon the exercise of such powers, of compulsory acquisition of the property of an individual, there must be prompt payment of compensation to such a property owner.

The machinery that facilitates acquisition of private property is envisaged in The Land Acquisition Act (cap 295 of the laws of Kenya), which is the most relevant authority in the determination of such. It in particular empowers the commissioner of lands upon due notice in the Kenya Gazette and upon the payment of full compensation to the persons having proprietary interest in the property to proceed and acquire any piece of land which the Minister is satisfied is required for public use. The process of effectuating compulsory acquisition of land is illustrated in the Land Acquisition Act.

What accrues in the course of such a power is that the right to own property is compromised at the expense of public interest. This practice hence institutes a paradox in the circumstances that the state, which is bestowed with the power of protecting human rights, is the same institution that champions for its violation with the classical case of a right to property. The state however in the exercise of this power in projects does so by dint of the same being necessary for public benefit. This calls for the question on whether it is necessary to infringe on, violate or suspend a private right in fulfillment of a public interest. The answer to the above question is affirmative, hence the need to ensure that the exercise of eminent domain power least affects the enjoyment of the right to property in the circumstances. A number of scholars have widely reviewed the subject on eminent domain and the right to property. P. L. Onalo states that the complete ownership of land vests in the state. In the event of the circumstances of a lease, the state has the absolute right to take back the land on expiry.

Kenya is bestowed with the obligation under both national and international law. P.L.O Lumumba et al states that the state has the responsibility to observe, respect, protect and ensure the fulfillment of rights and fundamental freedoms enshrined in the constitution and categorizes this responsibility into two: the positive obligation which the advocate for the state taking positive steps towards realization of these rights, as well as ensuring it provides rights in circumstances where individuals or groups cannot realize such rights for reasons that in most occasions turn out to be beyond their control; and negative obligation which are basically a preventive obligation on the part of the state towards the enjoyment of a constitutionally provided right or duty. The former obligation is subject to realization while the latter is static as may be the case in several circumstances.

Despite criticisms on the dangers posted on private property owners by eminent domain, it is inarguably a necessary evil in society.  This therefore calls for a necessity to balance these interests for the good of all the involved stakeholders therein.

John Locke argues that for the state to exercise such powers, consent of the governed is necessary. This is however not the case in Kenya since the constitution and the Land Acquisition Act specifically leave the decision to the minister. James Madison seconds Locke’s assertion and adds that in its exercise of eminent domain powers, there should be a limitation on such power for the benefit of both the state and the private land owners, through finding a proper balance.

In the case of Kanini Farm Ltd. v Commissioner of Land (1984) eKLR the appellants land had been compulsorily acquired by the government under the Land Acquisitions Act (cap 295).. They challenged the compensation awarded on the ground that it valued the property as agricultural land when tere had been a change of user to residential and that some of the recipients of compensation were trespassers of the land. It was held that a person whose land is entitled to prompt payment of full compensation as a result of the acquisition as provided for under Article 40 (1) (c) of the constitution and Section 8 of the Land Acquisitions Act. The court also held that when land is compulsorily acquired under the Land Acquisitions Act an enquiry to determine the persons interested in the land, the value of the land and compensation to be paid must be held as required by Section 9(3) of the Act, and that market value as a basis of assessing compensation is the price that a willing seller might be expected to obtain from a willing purchaser and the purchaser may be a speculator but a reasonable one.

This brings to question the issue of what amounts to just compensation. The courts rulling in the aforementioned case forms the core precedent for determining just compensation. In its ruling, the court added that the charges of the user of the suit land, from agricultural to a residential character was approved before the acquisition, therefore it was fair and just that the property should be treated as residential in assessing compensation. That said therefore brings into light the guiding principles that courts should use in thee determination of just compensation. They are inclusive of the fact that when determining the amount of compensation which ought to be paid, the courts should take into account comparable sales and awards on other acquisition of land of similar character.

In conclusion, the law on eminent domain does not infringe on the rights of an individual to own property in any part of the country any more than in upholds that right. It is my view that the law on eminent domain applies only when the necessity of such acquisition arises and thus should not be termed as being a hindrance to the enjoyment of constitutional rights of  individuals but rather as a leeway to development when its aims are for the betterment of society at large.