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Franklin Muthomi N.

The doctrine of Eminent Domain Powers of the sovereign state to compulsorily


acquire private land is an affront to the concept of private ownership of land in
Kenya. Discuss the foregoing statement in light of the constitutional right to own property.

Introduction
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.1
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.2
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. 3 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
1 Vanhornes Lessee v Dorrance 2 US 304,310(1795)
2 Sessional Paper no. 3 of 2009 National Land Policy Chapter 3
3 Ibid

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. 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.4 In this case we can infer the distinction between the doctrine of eminent
domain and that of police power.
The Constitution provides for the right of every person to acquire and own property of any
description.5 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.
History of Eminent Domain

4 http://www.kenyalawresourcecenter.org/search/label/environment%20law
5 Constitution of Kenya Article 40 (1)

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.6 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. 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.7 As put in Tanzanias 1967 Arusha Declaration and Tanus
policy on socialism and self-reliance, land is given by God for the use of all.8
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 Act9.
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.10
6 Land Law by John Stevens 2nd ed p.21
7 The Making of a Framework: Environmental Law in Kenya p.270
8 Ibid
9 Cap 295 Laws of Kenya
10 http://www.focusonland.com/fola/en/countries/brief-government-control-of-private-land-use/

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 right11 to the fruits of their labour which denoted that
earning the right to that thing meant the exclusion of all others. Lockes 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.12
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. 13 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. 14 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.
11 Legal theorists such as Locke and Rousseau have argued that only rights in the state of nature
(natural rights) were absolute, and that in the modern state man can only enjoy civil liberties, which
are subject to limitations.
12 Richard A Epstein, Takings: Private Property and the power of eminent domain p.10
13 PRIVATE PROPERTY IN AMERICA: LAND USE AND THE ETHICS OF OWNING LAND,
Elizabeth Michelle Grant p.7
14 James Tully, A Discourse on Property: John Locke and his Adversaries p.123

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.
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 selfinterest and greed was the source of all discord. He was a defender of absolute sovereign
power.
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.15 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. 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 16 in
management of land and as Dr. Muigua explains in his book 17, any land management must

15 Ibid 12 p.7
16 Eminent domain powers

attempt to balance the interests of the various groups in society so as to avert potential land
related conflicts.
This phenomenon is well set out in the case of Joseph K. Nderitu & 23 others v AG & 2
others.18 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 Ac, 2012.
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.19 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)20 and Article 40(3) of the Constitution.21

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. 22 This view could,
17 Kariuki Muigua, Didi Wamukoya,Francis Kariuki, 2015- Natural Resources and Environmental
Justice in Kenya p.145
18 Constitutional Petition No. 29/2012
19 Ibid 17 p.146
20 Land Act, 2012
21 Ibid S.107(3)
22 Ibid 19

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. 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?23
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.24 Here the African Human Rights Commission Condemned the
Expulsion of the Endorois25 people from their ancestral land by the Kenyan government for
tourism development stating that this was a violation of their rights.
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.

23 Ellen Frankel Paul Property Rights and Eminent Domain p.7


24 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v. Kenya, 276/2003
25 The Endorois are considered an indigenous community in Africa

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.26

26 Such strides include enactment of the 2012 Land Laws, the Land Acquisition Act Cap 265 and the
promulgation of the New Constitution 2010