LEGAL RECOURSE IN DEMOLITION OF PRIVATE PROPERTY BY GOVERNMENT

Nine years ago property owners along Thika Road lost their fortunes when both commercial and residential developments were flattened to pave way for the construction of the Kshs 30 billion Thika Superhighway. Even before the dust settled on the demolitions, buildings in Kisumu came tumbling as the bulldozers made way for the construction of the Kshs 14.8 billion Mau Summit on the Kericho Kisumu Road.

Construction Villa care

Road Construction

Such scenes have become common place in the Kenya with hardly a day passing without heart wrenching stories in the media of unforgiving bulldozers bringing down in no time what has taken years to build.

While the jury is still out on who is to blame between the Kenya government and the property investors as far as demolition of private property is concerned, industry pundits are in agreement that the government must adequately compensate registered property owners whose investments are acquired or demolished for development.

Under the law, registered property owners whose investments would be affected by public developments are protected by the Kenya Constitution. The Bill of Rights under Article 40 of the Supreme Law provides for protection of right to private property. Matthew Wokabi, a Property lawyer at Sikh and Karinga advocates however argues that while government has a duty to fully compensate property owners of demolished property, they have to show that they are the lawful and rightful owners of the said properties.

“In Kenya the land is either held under freehold which means it has a title deed, or on leasehold meaning the holder has a lease. Those are the two instances under which a land owner can seek compensation, however in certain circumstances compensation may be paid to the occupants in good faith,” he said. Prof. Doreen Wambua, another Property lawyer and a legal consultant for major property investments across East Africa advices property investors whose properties are compulsorily acquired that compensation is no simple affair. She advises property developers to seek the services of a certified valuer who would rate the property at the existing market rates and have the valuation report ready after receiving demolition notice.

“This is because during compensation, government always goes with existing market rates once they decide to demolish your property. The aggrieved who feel that the government compensation is below expectations have recourse in the High Court,” Prof Wambua said.

But while this recourse has worked over time, provisions in the constitution allow government to acquire private property for specific public purposes, subject to the prompt payment of compensation. While citizens can use the courts for redress, the law does not require the government to engage the public in the decision to acquire land, only for establishing who is eligible for compensation and for the proposed development on the acquired land through the Environmental Impact Assessment (EIA) process.

The case of Runda property owners and the government is such a pointer. About 296 families were rendered homeless after the High Court ordered partial demolition of the gated community to create room for the construction of the 21-kilometre Northern Bypass corridor.

The protracted court case that pitted Runda residents, Lands and Roads ministries, Kenya National Highways Authority, Kenya Urban Roads Authority and the Attorney-General involved the width of the road reserve adjacent to the palatial houses.

The residents insisted that the road’s width was 60 metres as per the Lands Ministry records, the government argued that it was 80 metres as delineated on November 20, 1970.

The petitioners had urged the court to declare that their rights, individually or in association with others to acquire and own property, were being violated as guaranteed by Article 40 of the Constitution.

While making the ruling Lady Justice Mumbi Ngugi argued that public interest supersedes individual’s right to property. “In the two petitions before me, I don’t see any violation or limitation of the residents’ right to property. In my view, the residents are unwitting victims of landowners who sold the properties to them without having regard to the public interest. While I appreciate the large investments that have gone into the construction of the residential houses and sympathize with the situation of the owners, I believe their recourse in legal claim is against those who sold land to them,” read the judge’s ruling.

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