‘JUST COMPENSATION’ IN KENYAN COMPULSORY LAND ACQUISITION

In Kenya, land is more than just a physical asset, it is a deeply rooted source of identity, livelihood, and cultural heritage. When the government exercises its constitutional power of compulsory acquisition for public projects such as infrastructure, schools, or hospitals, it must balance national development with individual property rights. Central to this balance is the principle of just compensation, a constitutional safeguard under Article 40(3) that ensures no citizen bears an unfair burden from state-driven land acquisition. This principle goes beyond mere market value; it demands fairness, transparency, and full restitution to landowners for all losses suffered. As Kenyan jurisprudence evolves, so too does the interpretation of what truly constitutes “just” compensation shaping the future of land rights and equitable development.

When the national or county government decides that it needs to acquire private land for a public project, it must follow a legal process. First, the relevant Cabinet Secretary or County Executive Committee Member must send a formal request to the National Land Commission. This request is made in writing, as required by Section 107(2) of the Land Act, and it officially starts the process of compulsory land acquisition. This article will be focusing on just compensation in Compulsory acquisition.

Compulsory acquisition is the process by which the government acquires private or community land for public use subject to prompt compensation. Article 40(3)(b) of the Constitution allows the government to take private land for public use, but only as an exception to the general rule that no one should be deprived of their property. This can only happen if the land is needed for a public purpose and the owner is paid promptly and fairly. According to the Land (Assessment of Just Compensation) Rules, the National Land Commission must consider several things when deciding how much to pay during the compulsory acquisition.

a) the current market value of the land; 

b) any losses caused by separating the land from the owner’s other land; 

c) any harm or loss to the owner’s other property or earnings because of the acquisition; 

d) moving costs for anyone who has to relocate their home or business; and 

e) any genuine loss in profit from the land from the time the government announces its plan to acquire it until the time it actually takes it.

Courts in Kenya have made it clear that “just compensation” for compulsory land acquisition must serve two key goals, to protect the landowner’s right to property and to prevent the government from benefiting unfairly at their expense. The idea is that the landowner should be fully restored to the same financial position they were in before losing their land this is known as the principle of equivalence. According to the law, the compensation should match the market value of the land at the date when the government announces its intention to acquire it. On top of this, the owner is also entitled to a 15% disturbance allowance.

Market value has been defined in Rule 2 thereof as “the value of the land at the date of publication in the Gazette of the notice of intention to acquire the land.” This is the value that should be paid to a project affected person plus an additional 15% disturbance allowance in accordance with Rule 6. Early compulsory acquisition practice often narrowly equated “just compensation” with Market Value. In the case of Many v. The Collector (1957), the court said market value means the price a willing seller would expect from a reasonable buyer.

In Patrick Musimba v National Land Commission & 4 others (2016), the High Court explained that fair compensation should match the actual financial loss caused by the land being taken. The owner should receive neither more nor less than the value of the land, based on its fair market worth.

In the case of Nguku Product Twenty Ten Limited v National Land Commission, the court explained the legal process for determining just compensation when land is compulsorily acquired. This process is based on Article 40(3) of the Constitution, the Land Act, and the Land (Assessment of Just Compensation) Rules, 2017. The courts now say compensation should cover all reasonable losses caused by the acquisition, not just the value of the land itself. When deciding the market value, the Commission must consider any restrictions on the land’s use and whether the land’s value has increased.

In Katra Jama Issa v Attorney General [2018], the court emphasized that compensation must be fair and equal to the value of the land to the owner, not its general or strategic value to the government. A person is entitled to compensation for losses fairly attributed to the taking of his land but not to any greater amount as “fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority”

In conclusion, the evolving Kenyan jurisprudence signals that “just compensation” in compulsory acquisition is no longer a matter of simple market‑value calculation. The courts are demanding fairness, transparency, and full compliance with statutory and constitutional procedures and giving landowners the right to challenge inadequate awards even after acceptance.  For both practitioners and policymakers, understanding and adhering to these rigorous judicial standards is essential for safeguarding property rights and facilitating lawful, equitable national development.

At A.O. WANGA ADVOCATES we are happy to assist you with all land matters in Kenya.

Please contact us on info@aowangaadvocates.com or +254794600191

All rights reserved for A.O. WANGA ADVOCATES

www.aowangaadvocates.com