Land for infrastructure Development; Compulsory Acquisition and Compensation of Unregistered and Undocumented Land in Kenya By Monica Obongo, Agatha Wanyonyi, Peter Mburu and Jane Ndiba MINISTRY OF LANDS AND PHYSICAL PLANNING

KEY QUESTIONS? How to identify various interests in land where there is no formal registration? How do we arrive at fair compensation for the various interests in land? What safeguards has the Government of Kenya put in place for future land acquisitions?

INTRODUCTION Land is a critical resource for the socio-economic and political developments and respect for property rights to land is an important driver of rapid economic transformation. Kenya occupies 582,646 KM2 of land; which is categorized as public, community and private. [MoL 2013]. Infrastructure development is a key driver economic development. Most land has existing interests (documented or not) and thus calls for the use of eminent domain i.e. the power of the Government to compulsorily acquire land for use by the public.

Large Infrastructure Projects in Kenya Thika Super Highway – completed LAPSSET –Lamu Port South Sudan Transport Corridor - ongoing, Standard Gauge Railway line, Northern Economic Corridor, Dongo Kundu Free port- on going Konza Techno City – on going Electricity Transmission infrastructure by KETRACO – on going

LEGAL BACKING FOR COMPENSATION OF UNREGISTERED LAND In the Kenyan Constitution, Article 40(3) provides for compensation for land that is compulsorily acquired for a public purpose while Article 40(4) provides for compensation to occupants of acquired land who may not hold a title to the land. Further in the Land Act 2012, section 5 recognizes customary land rights, as one of the forms of land tenure in the country.

METHODOLOGY Review of Government Documents to establish extents of land registration. Focused Group Discussions – mechanisms used to identify land owners and to arrive at fair and just compensation. Pilot study of the effectiveness of land value index

IDENTIFICATION OF UNREGISTERED AND UNDOCUMENTED LAND FREEHOLD/CUSTOMARY TENURE Use of Local Administrators through Local Compensation Committees identified by local chiefs and county commissioners “Majirani” Concept i.e. use of neighbours to identify genuine land owners Holding inquiries for ownership disputes LEASEHOLD LAND Use of issued Letters of Allotment and verification from relevant local authority

IDENTIFICATION CONT…D DECEASED OWNER Letters of administration. Acquisition of letters assisted by the local chief and legal officer of the acquiring institution. SETTLEMENT SCHEMES Use of records from the relevant government department SQUATTERS On Private Land (occupants in good faith) Identified by owner of the land and use of “majirani” concept On Public Land Use of Majirani concept

VALUATION OF UNREGISTERED LAND Deviation from the conventional methods and an attempt to embrace emerging trends and fit for purpose methods of arriving at compensation Mass appraisal techniques and the probable use of a land value index to analyze trends in value

Land Value Index Statistical Analysis of trend within specific submarkets Requires large amounts of data The pilot study shows that revenue could have been saved if the land value index was in place May be the solution to curb land speculation of land planned for infrastructure development

LESSONS LEARNT AND CURRENT GOVERNMENT ACTION TO SAFEGUARD FUTURE ACQUISITIONS Enactment of Land Acts Operationalization of laws by developing regulations Mass titling Digitalization of land records and processes Protection of rights of vulnerable groups Use of ADR for conflict resolution Prior Physical Planning

Way Forward Legal framework to safeguard the land acquisition process in the absence of formal registration Train land valuer’s in techniques and methods of valuing unregistered land Empower community and encourage their involvement and participation at every stage of project planning and implementation Encourage women to participate in the process

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