JUST COMPENSATION IN THE COMPULSORY ACQUISITION PROCESS IN

KENYA

Submitted in partial fulfilment of the requirements of the Bachelor of

Laws Degree, Strathmore University Law School

By

NDAMBUKI VICTOR NZIOKI

082321

Prepared Under the Supervision of

DR. FRANCIS KARIUKI

DECEMBER 2019.

Word Count: 12273

TABLE OF CONTENTS
ACKNOWLEDGEMENTS .......................................................................................................... iv
DECLARATION ............................................................................................................................ v
ABSTRACT ................................................................................................................................... vi
A. LIST OF CASES .................................................................................................................. vii
B. LIST OF LEGAL INSTRUMENTS .................................................................................. viii
CHAPTER 1: INTRODUCTION TO THE STUDY................................................................... 1
1.1. BACKGROUD TO THE PROBLEM .............................................................................. 1
1.2. STATEMENT OF THE PROBLEM ................................................................................ 4
1.2.1. RESEARCH OBJECTIVES.......................................................................................... 4
1.2.2. RESEARCH QUESTIONS............................................................................................ 5
1.3. HYPOTHESIS .................................................................................................................... 5
1.4. LITERATURE REVIEW .................................................................................................. 5
1.5. THEORETICAL FRAMEWORK.................................................................................... 9
1.6. JUSTIFICATION OF THE STUDY .............................................................................. 11
1.7. RESEARCH DESIGN AND METHODOLOGY .......................................................... 11
1.8. LIMITATIONS: ............................................................................................................... 12
1.8.1. CHAPTER BREAKDOWN ........................................................................................ 12
CHAPTER 2: THE LEGAL FRAMEWORK FOR COMPULSORY ACQUISITION AND
JUST COMPENSATION IN KENYA ....................................................................................... 14
2.1. PREVIOUS AND CURRENT LEGAL STATUTES GOVERNING COMPUSORY
ACQUISITION AND JUST MPENSATION: ........................................................................... 14
2.2. ANALYSIS OF THE LEGAL FRAMEWORK ................................................................. 22
2.3. Case Studies on the Issue of inadequately defining Prompt Compensation .................... 25
CHAPTER 3: GUIDING PRINCIPLES AND CONCEPTS TO CONSIDER WHEN
DEFINING JUST COMPENSATION ....................................................................................... 26
A. PRINCIPLE OF RESTITUTION ....................................................................................... 26
B. PROPERTY IS VALUE-LADEN: ...................................................................................... 28
C. PRINCIPLE OF LEGITIMACY IN PROPERTY............................................................ 29
D. THE CONCEPT OF SEISIN POSSESSION:.................................................................... 29
CHAPTER 4: COMPARATIVE ANALYSIS OF JUST COMPENSATION BETWEEN
KENYA AND SOUTH AFRICA ................................................................................................ 31
4.1. ANALYSIS OF THE LEGAL FRAMEWORK ................................................................. 31
CHAPTER 5: CONCLUSIONS, FINDINGS AND RECOMMENDATIONS ....................... 34
5.1. FINDINGS ............................................................................................................................. 34
5.2. RECOMMENDATIONS ................................................................................................. 36
5.3. CONCLUSION ................................................................................................................. 37

ii
BIBLIOGRAPHY ........................................................................................................................ 38

iii
 ACKNOWLEDGEMENTS

First and foremost, I truly am grateful to the Lord Almighty for bringing me to this point
and enabling me to complete this dissertation, His mercies, favour, and grace have steered
me through the writing of this dissertation, from the beginning to the very end.
I am indeed most thankful to my family, specifically my parents Shadrack and Clementine
Kombo, for their unconditional and un-waivered support to me, at my most difficult and
lowest moments until the very end.
Finally, I am truly grateful to my Supervisor, Mr. Francis Kariuki, whose guidance, support,
and encouragement has immensely gotten me through my dissertation and sparked my
interest in the field of Land Law.

iv
 DECLARATION

I, NDAMBUKI VICTOR NZIOKI, do hereby declare that this research is my original

work and that to the best of my knowledge and belief, it has not been previously, in its
entirety or in part, been submitted to any other university for a degree or diploma. Other
works cited or referred to are accordingly acknowledged.

Signed:

Date:

This dissertation has been submitted for examination with my approval as the University
Supervisor.

Signed:

Date:

FRANCIS KARIUKI

v
 ABSTRACT

Just Compensation is a vital aspect of compulsory acquisition. It is important that upon

completion of compulsory acquisition of land, the victims of the process, are justly
compensated, as they have significantly suffered a detriment in the property they initially
owned. In order to achieve this, the current provisions on just compensation must
adequately be defined in order to ensure that there is no gap in the law concerning the same,
to ensure that entities involved in compulsory acquisition, do not take advantage in the
ambiguities found within the provision and finally to ensure that court do not set wrong
precedence on matter of just compensation. The main aim of this paper, therefore, shall be
to explain how to conclusively and in full, define just compensation. The paper shall
identify the challenges that are currently present in defining just compensation and how to
fully resolve these challenges. This shall be explained through the aid legal statutes, both
from the local and foreign perspective, case law from different jurisdictions, journal articles
and published books The paper shall conclude by providing summarised proposed
solutions, discussed throughout the chapters, on how just compensation should be defined.

vi
A. LIST OF CASES
1. Kanini Farm Limited v Commissioner of Lands (1996) eKLR.
2. Limo v Commissioner of Lands KLR (E&L) 175.
3. John Kariuki Macharia v Commissioner of Lands (2014) eKLR.
4. Five Star Agencies v The National Land Commission (2014) eKLR.
5. Kanini Farm Limited v Commissioner of Lands (1996) eKLR.

6. Mike Maina Kamau v Attorney General (2017) eKLR.

7. Patrick Musimba v National Land Commission & 4 others (2016) eKLR.
8. Erastus Njonjo Mote & 3 others v Attorney General & 2 others (2017) eKLR.

9. Mathatani Limited v Commissioner of Lands (2013) eKLR.

10. Peaceable d Uncle v Watson (1811).
11. London Borough of Harrow v Qazi (2004) United Kingdom House of Lords.
12. Armstrong v United States (1960) United States Supreme Court.
13. Abraham Lama Wollach N.O.& Another v The Government of the Republic of
South Africa & 3 Others (2018) Land Claims Court of South Africa.
14. Johannes UYS N.O & Another v Msindo Phillemon Msiza & 2 Others (2017)
Supreme Court of Appeal of South Africa.
15. Ash and Others v The Department of Land Affairs (2000), Land Claims Court of
South Africa.
16. ACmHPR v Republic of Kenya, ACmHPR Comm.006/2012 (2017).

vii
B. LIST OF LEGAL INSTRUMENTS
1. Land Act (Act No. 6 of 2012).
2. Constitution of Kenya (2010).
3. Land Acquisition Act (Act No.1 of 1894).

4. Land Acquisition Act (Cap 295 of 168) (Repealed).

5. Land Value Index Laws (Amendment) Act (No 15 of 2019).
6. Land Acquisition Act (Cap 295 of 1968) (Repealed).
7. National Land Policy of Kenya (2007).
8. Constitution of The Republic of South Africa (1996).

viii
CHAPTER 1: INTRODUCTION TO THE STUDY
Compulsory acquisition is defined under the Land Act of Kenya, as the power of the State
to deprive or acquire any title or other interest in land for public purpose or is in the public
interest, under which there shall be swift payment of compensation after the compulsory
acquisition has occurred.1 The Land Act further states under Section 109, that there should
full payment and just compensation for any damage caused during entry in the process of
compulsory acquisition.2

The Constitution of Kenya provides for recognition of compulsory acquisition by stating

that the state shall not deprive any person arbitrarily of land unless that deprivation is a
result of acquisition of land, an interest in land, a conversion of an interest in land.3 It also
provides another circumstance that a deprivation can be warranted is, if it is for public
purpose or in the public interests.4 The Constitution provides in addition, that where the is
deprivation of property, there should be prompt payment in full of just compensation to the
person whom the property was deprived of.5

Notably, from the above provisions, there is the use of the wording just compensation.
However, both statutes do not define what amounts to just compensation. This presents a
legal problem, as a court of law cannot accurately determine the scope of what amounts to
just compensation upon being presented an issue, concerning the same.

1.1. BACKGROUD TO THE PROBLEM

In 1895, Kenya was declared a protectorate and subsequently in 1897, the Land Acquisition
Act of India of 1894 was extended to apply to the Kenyan context as well.6

The Land Acquisition Act of India provided that, should it appear to the relevant authorities
that the land would be required for public purpose, a notification to that effect would be
published in the Official Gazette.7 The Act further provided under the same section, that

1
Section 2, Land Act (Act No. 6 of 2012).
2
Section 109, Land Act (Act No. 6 of 2012).
3
Article 40(3)(a), Constitution of Kenya (2010).
4
Article 40(3)(b), Constitution of Kenya (2010).
5
Article 40(3)(b)(i), Constitution of Kenya (2010).
6
Chelimo S.I, ‘Registration of title to land: A critique of the Land Registration Act no.3 of 2012’ Published
LL.M Thesis, University of Nairobi, 2012,29.
7
Section 4(1), Land Acquisition Act (Act No.1 of 1894).
upon issuance of notice, any or specific authorities could enter upon that land and
compulsorily acquire it if they deem it fit for the use that they have planned for.8

The provision for compensation was provided under the same Act where it stated that the
relevant authority that made the compulsory acquisition, should make payment in full for
all the damage that would be done.9

The Act in some instance shows circumstances where the colonial power could still
compulsorily acquire land and deny just compensation. The Act provided that in cases of
urgency the relevant authority could compulsorily acquire land for a public purpose without
10
issuance of compensation The above-mentioned provision, clearly shows that the
colonial powers at that time, disregarded the issue of compensation upon compulsorily
acquiring land despite the circumstances involved.

From the above brief analysis, one can infer that the colonial powers did indeed provide an
elaborate legislation to guide the process of compulsory acquisition. However, the
legislation did not include matters to do with just compensation. Compensation under the
Act was only considered in terms of monetary compensation.

The Land Acquisition Act of India was replaced eventually by the Land Acquisition Act of
Kenya.11 This was the first local statute that dealt with the issue of compulsory acquisition
of land in Kenya. The Act provided that the purpose of compulsory acquisition was for the
public benefit.12 However, it did not provide a definition of what public benefit meant.

The Land Acquisition Act of Kenya provided that where land was compulsorily acquired,
compensation was to be made in full to the persons who had an interest in the land.13In this
instance, the statute did not provide for just compensation as well.

In the case of Kanini Farm Limited v Commissioner of Lands, the court held that just and
fair compensation is the market value of the property.14 However, the market value fails to

8
Section 4(2), Land Acquisition Act (Act No. 1of 1894).
9
Section 5, Land Acquisition Act (Act No 1 of 1894).
10
Section 17, Land Acquisition Act (Act No. 1of 1894).
11
Chelimo S.I, ‘Registration of title to land: A critique of the Land Registration Act no.3 of 2012’ Published
LL.M Thesis, University of Nairobi, 2012,30.
12
Land Acquisition Act (Cap 295 of 168) (Repealed).
13
Section 8, Land Acquisition Act (Cap 295 of 168) (Repealed).
14
Kanini Farm Limited v Commissioner of Lands (1996) eKLR.

2
compensate non-monetary aspects such as the spiritual connections communities have to
their ancestral lands.

In the case of Limo v Commissioner of Lands, the court held that in determining the value
of land, compensation should consider the nearness of the land to the main town and also
asses the accessibility of the land to roads.15

In the case of John Kariuki Macharia v Commissioner of Lands, the court stated that the
factors to be considered in determining compensation are the market value of the suit
property, the damage sustained by reason of the acquisition ,actual earnings, reasonable
expenses incidental to change of residence or place of business, and damages resulting from
diminution of the profits of the land between the date of gazettement and the date of taking
actual possession.16

The case of Five Star Agencies Limited v The National Land Commission highlights the
fact that the National Land Commission has not yet formulated rules to guide the
assessment of just compensation as required by Section 111(2) of the Land Act.17

The 2010 Constitution of Kenya, taking into consideration the right to own
property,18provides that where a state deprives a person with an interest to a property, there
must be just compensation and payment in full to the person whom the property was
compulsorily acquired.19

The Land Acquisition Act was then repealed by the Land Act of Kenya 2012,20 in
accordance with the provisions of Article 40 of the Constitution of Kenya.21 The Act states
that there should full payment and just compensation for any damage caused during entry
in the process of compulsory acquisition.22In addition, it defines just compensation as a
form of fair compensation that is to be decided through the criteria provided by the
provisions of the Act.23

15
Limo v Commissioner of Lands KLR (E&L) 175.
16
John Kariuki Macharia v Commissioner of Lands (2014) eKLR.
17
Five Star Agencies v The National Land Commission (2014) eKLR.
18
Article 40, Constitution of Kenya (2010).
19
Article 40(3)(b)(i), Constitution of Kenya (2010).
20
Land Act (Act No.6 of 2012).
21
Article 40, Constitution of Kenya (2010).
22
Section 109, Land Act (Act No 6 of 2012).
23
Section 2, Land Act (Act No 6 0f 2012).

3
It is important to note that both the Constitution of Kenya and the Land Act of Kenya do
acknowledge that there should be just compensation to the persons who had an interest in
a certain land or property; however, there is a limited view on what is to amount to just
compensation. This leaves a huge vacuum for all kinds of interpretation on the subject
matter and therefore, may lead to courts setting inconsistent precedence and lead to the
infringement of the right to property.

Additionally, the Land Assessment of Just Compensation rules were promulgated in 2017,
and provide that the National Land Commission shall determine an award of compensation
based on the market value of the land to be acquired,24 and proceeds to stipulate how the
market value shall be determined.25

From the above analysis, it is clear that the law over time has not been able to clearly define
what amounts to just compensation and limits it to monetary aspect of compensation only.

1.2. STATEMENT OF THE PROBLEM

For just compensation to be fully defined, it must consider that the same precedes monetary
compensation and that the non- monetary aspects are also a key factor in fully defining the
same. The law provides a limited scope on just compensation, as it restricts just
compensation to monetary compensation to a large extent. Therefore, if this issue is not
addressed, a great number of people shall not be justly compensated and their right to
property shall be infringed.

1.2.1. RESEARCH OBJECTIVES

The objectives of this study are as follows:

a. To review the laws governing just compensation during the process of compulsory
acquisition in Kenya.
b. To assess the effectiveness of the laws guiding just compensation and the
compliance towards them, in the process of compulsory acquisition in Kenya.
c. To identify the ambiguities, present in defining just compensation in Kenya.
d. To examine the scope of just compensation i.e. what aspects should just
compensation cover apart from the monetary aspect.

24
Rule 4(1), Land (Assessment of Just Compensation) Rules (2017).
25
Rule 4(2), Land (Assessment of Just Compensation) Rules (2017).

4
 e. To identify possible recommendations to achieving a clear definition of what
amounts to just compensation in Kenya.

1.2.2. RESEARCH QUESTIONS

This study seeks to address the following questions:

a. What are the laws that govern just compensation in the process of compulsory
acquisition in Kenya?
b. How effective are the laws governing just compensation during the process of
compulsory acquisition in Kenya, and have these laws been complied with?
c. Are there any ambiguities in defining what amounts to just compensation in the
Kenyan legal framework?
d. Does just compensation only amount to monetary compensation?
e. What are the possible recommendations that can be used to determine what
amounts to just compensation?

1.3. HYPOTHESIS
The definition of what amounts to just compensation during the process of compulsory
acquisition, is limited to monetary compensation under the Kenyan law, and has failed to
include the non-monetary aspects of the same.

1.4. LITERATURE REVIEW

Compulsory acquisition has been identified as a right to acquire land for the purposes of
public benefit and for the common good of the society at large. It follows then that
compensation, which stems from compulsory acquisition, must also seek to achieve the
common good.26

The now repealed Land Acquisition Act, provided as follows, “Where land is acquired
compulsorily under this Part, full compensation shall be paid promptly to all persons
interested in the land".27

The Constitution of Kenya 2010 states that where property is taken by the state, it requires
28
prompt payment in full, of just compensation to the person. The same is also reiterated
in the Land Act of Kenya of 2012, where it states that, there should be full payment and

26
Longo JP, ‘The Concept of Property and The Concept of Compensation on Compulsory acquisition,’ 4.
27
Land Acquisition Act (Cap 295 of 168) (Repealed).
28
Article 40 (3), Constitution of Kenya (2010).

5
just compensation for any damage caused during entry in the process of compulsory
acquisition.29 From the provisions mentioned, the law pre-supposes that there shall be just
compensation where payment has been made. This is also seen in the case of Kanini Farm
Limited v Commissioner of Lands (1996) eKLR, where the court held that just and fair
compensation is the market value of the property.30

In the case of John Kariuki Macharia v Commissioner of Lands, the court stated that the
factors to be considered in determining compensation are the market value of the suit
property, the damage sustained by reason of the acquisition ,actual earnings, reasonable
expenses incidental to change of residence or place of business, and damages resulting from
diminution of the profits of the land between the date of gazettement and the date of taking
actual possession.31

The Land Assessment of Just Compensation rules provide that the National Land
Commission shall determine an award of compensation based on the market value of the
land to be acquired,32 and proceeds to stipulate how the market value shall be determined.33

It is evident from the above analysis, that just compensation under the Kenyan Legal
framework views only monetary compensation as just compensation; this provides a huge
vacuum in law. As shall be seen throughout this study, in order to fully define just
compensation and provide a conclusive scope of what amounts to the same, non-monetary
factors should be considered; doing this shall ensure that there is prevention of infringement
of the right to property provided under the Constitution of Kenya.34

Bonaya G. in her paper, explains that for there to be just compensation, it must precede
monetary value and be encompass non-monetary aspects of the compensation as well.35
She further adds that compensation a victim of compulsory acquisition is to ensure that
one person will not bear a large burden for the benefit of a whole society. 36 Though this
position is correct, the paper does not delve conclusively in to what constitutes non-

29
Section 109, Land Act (Act No 6 of 2012).
30
Kanini Farm Limited v Commissioner of Lands (1996) eKLR.
31
John Kariuki Macharia v Commissioner of Lands (2014) eKLR.
32
Rule 4(1), Land (Assessment of Just Compensation) Rules (2017).
33
Rule 4(2), Land (Assessment of Just Compensation) Rules (2017).
34
Article 40(1), Constitution of Kenya (2010).
35
Bonaya A.G, ‘Compulsory Acquisition and the Right to Property: The Gaps in the Legal Framework,
Practices and Possible Solutions’ Published Dissertation, Strathmore University, Nairobi, 2018,12.
36
Bonaya A.G, ‘Compulsory Acquisition and the Right to Property: The Gaps in the Legal Framework,
Practices and Possible Solutions’ Published Dissertation, Strathmore University, Nairobi, 2018,16.

6
monetary aspects of just compensation. This study shall therefore delve into the non-
monetary aspects that should be encompassed in describing what just compensation should
amount to. The Food and Agriculture Organization of the United Nations in a paper, shows
the necessity of non-monetary compensation by stating that money alone cannot put the
victims whose land was acquired compulsorily back to the position they were before the
acquisition took place.37

A good example of the non-monetary aspect of compensation would be compensation of

the customary aspect of the land. Different parts of land are administered through the
customary land tenure.38 This means that the land is governed by customary practices under
the rule of traditional leaders.39 Such land may include ancestral lands, community lands,
among others. Customary land is mostly recognised as public land held in trust by the
government, and therefore, considered of no value.40 Compensation should therefore
recognise customary land as being of value in itself and thus compensate the customary
rights held within the land. In addition, compensation of customary should take into
consideration the customary laws and practices of that specific land.41

Francis Thorpe writes that every person is entitled to the protection of their property within
a society.42 He states that no property can be taken from an individual without his consent
for public use; however, where the property is indeed taken for public benefit or public use
the person ought to receive reasonable compensation.43 Though the statements made above
hold weight in explaining just compensation, the author does not state what reasonable
compensation is. The lack of clarity of what a reasonable compensation is, opens room for
various self-interpretations of the mentioned text, which will mean that different aspects of
just compensation will not be covered. As will be seen in one of the following chapters,
determining what is reasonable compensation should be guided by different principles,

37
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 23.
38
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 34.
39
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 34.
40
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 34.
41
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 35.
42
Thorpe F., ‘Federal and State Constitutions’ 1909 quoted in Longo JP, ‘The Concept of Property and The
Concept of Compensation on Compulsory acquisition.’ University of Tasmania Law Review,1983,5.
43
Thorpe F., ‘Federal and State Constitutions’ 1909 quoted in Longo JP, ‘The Concept of Property and The
Concept of Compensation on Compulsory acquisition.’ University of Tasmania Law Review,1983,5.

7
which shall be discussed then. By conclusively defining what would be a reasonable
compensation, all aspects of what amounts to just compensation will be covered.

Chelimo SM, in her paper states that one of the challenges faced by traditional communities
is inadequate compensation.44 As has been mentioned earlier, customary land which the
traditional communities stay on, was not recognised as land having value and therefore,
compensation was made only in terms of the improvements made on the land. This shows
that for there to be just compensation, the scope must cover not only individuals, but also
take into consideration, the community occupying the land in question. This view draws its
tenets from the traditional African perspective, that land was owned communally and was
for the benefit of the whole society. This aspect shall form what amounts to the non-
monetary aspects of just compensation within this study.

From the analysis made herein, there is need to ensure the presence of a clear way of
looking at what amounts to just compensation and providing a conclusive definition of just
compensation.

Chelimo S.I, ‘Registration of title to land: A critique of the Land Registration Act no.3 of 2012’ Published
44

LL.M Thesis, University of Nairobi, 2012,

8
1.5. THEORETICAL FRAMEWORK
The study, shall rely on the following theories to justify the need for just compensation:

A. The African Commons

Preponed by Professor Okoth Ogendo, he states that commons as a property system not
only consists of territorial aspect of the land , but also characterised by additional factors,
among which is their permanent availability across generations including the past, present,
and future; and notes that this is the matter in which African resources were and still are
organised to date.45 From this preliminary statement, it is clear that land extends beyond its
physical attributes and extends to characteristics such as ties either communal or ancestral,
to the land in question.

Under the African commons as well, land is considered to the primary source of economic
and social of livelihood for the whole community and individuals as well as the source
where they drive their spiritual foundation from.46 From this description, it is clear that
characteristics of land extend beyond the physical occupation, as some communities have
spiritual and communal ties to that communal land in question. Therefore, for just
compensation to be fully defined, it must take into consideration the fact that land extends
beyond the physical traits, it must consider the different ties present to certain lands such
as communal land, when determining what would be the just compensation.

B. Utilitarian Theory

This theory outlines the concept of the greatest good for the greatest number, by stating that
an action shall be considered one of upholding utilitarianism if it has the ability to benefit
a community (which consists of the total individuals present) more than it can be
detrimental to the same.47 Therefore, for a government action to reflect the principle of
utility, the action must as has been above, have the ability to benefit the interests of the
community and not cause damage to the same.48

45
Okoth-Ogendo HWO, 'The tragic African commons: A century of expropriation, suppression and
subversion' University of Nairobi Law Journal (2003), 107.
46
Okoth-Ogendo HWO, 'The tragic African commons: A century of expropriation, suppression and
subversion’ University of Nairobi Law Journal (2003), 107.
47
Bentham J, ‘Of the Principle of Utility’ in An Introduction to the Principles of Morals and
Legislations(1781 ed), <https://www.utilitarianism.com/jeremy-bentham/index.html#one> , para. VI.
48
Bentham J, ‘Of the Principle of Utility’ in An Introduction to the Principles of Morals and
Legislations(1781 ed), <https://www.utilitarianism.com/jeremy-bentham/index.html#one> , para. VII.

9
Compulsory acquisition is supported by this theory as its main objective is the acquisition
of private property for the benefit of the public i.e. the greatest good for the greatest number,
which is the public 49

For compulsory acquisition to serve the greatest good, it must, during the process, outline
how just compensation should be achieved taking into consideration that compensation is
more than monetary value of the land or property in question, which shall eventually benefit
the interests the victims of compulsory acquisition have in the land.

C. The Eminent Domain Theory

The theory notes that eminent domain encompasses the inherent and necessary power of
government to take land for public purposes.50

The eminent domain is a relationship between the State and the person who gives consent
to the property being compulsorily acquired.51A crucial part to the eminent domain is the
compensation of the individual whose property is being taken. It therefore follows, that the
compensation should reflect the state-person relationship, and therefore, compensation
should be structured in a way that as it progresses the state, it also progresses the
individual.52Progress of the individual will be realised, if the scope of just compensation is
defined in detail.

Additionally, in order to achieve just compensation, compensation should not be viewed as

just a form of payment, but as a necessary integral part of the domain of the state.53 This is
to mean that, as the state provides the necessary avenues through legislation for compulsory
acquisition, it must also integrate into the legislations, a definitive scope of what amounts
to just compensation.

49
Bonaya A.G,’ Compulsory Acquisition and the Right to Property: The Gaps in the Legal Framework,
Practices and Possible Solutions’ Published Dissertation, Strathmore University, Nairobi, 2018,20.
50
Longo JP, ‘The Concept of Property and The Concept of Compensation on Compulsory acquisition.’
University of Tasmania Law Review,1983,3.
51
Longo JP, ‘The Concept of Property and The Concept of Compensation on Compulsory acquisition,’5.
52
Longo JP, ‘The Concept of Property and The Concept of Compensation on Compulsory acquisition,’ 5-6.
53
Longo JP, ‘The Concept of Property and The Concept of Compensation on Compulsory acquisition.’
University of Tasmania Law Review,1983,5.

10
1.6. JUSTIFICATION OF THE STUDY
As has been identified, there is a limited scope of what amounts to just compensation under
the Kenyan Law. Lack of a complete definition thereof, may lead to victims of compulsory
acquisition not being compensated fully and their right to property infringed. Therefore,
this study provides what to consider defining just compensation conclusively.

1.7. RESEARCH DESIGN AND METHODOLOGY

This research uses qualitative research methods that include primary and secondary sources
of data. Desktop research has been involved as well.

The primary sources of data that will be used are domestic legislations i.e. The laws of
Kenya specifically The Constitution of Kenya, The Land Act of Kenya, The National Land
Policy, and the Land Acquisition Act. International jurisprudence shall be relied upon
which include statutes from different jurisdictions such as the Constitution of South Africa
and Common Law cases and principles.

The secondary sources of data that will be relied on are journal articles, scholarly articles,
and books relevant to the subject matter.

Access to the sources referred to, shall be achieved in the following ways:

➢ Use of the Library resources i.e. relevant case books, textbooks, among others.
➢ Desktop review: Use of the computer to access relevant material from different
sources e.g. Kenyan statutes from the Kenya Law Reports.

The information obtained from the data sources, shall be used to provide a detailed
definition of what amounts to just compensation, to identify the gaps present in defining
what is just compensation, to provide guidelines that may be considered during just
compensation and to finally provide possible solutions to filling in the gaps the laws
relating to just compensation.

Comparative studies shall be used; the country that the study shall look into is South Africa,
as it provides conclusive definitions and provides a wide scope pertaining the issue of just
compensation.

11
Analysis of the data:

This shall be the most crucial part of the research methodology which shall be done in the
following manner:

The data collected shall be summarised and interpreted by way of logical reason. After
interpretation, the research shall then determine the pattern or rather the position of how
the issue of just compensation has been handled within the Kenyan Legal System.

1.8. LIMITATIONS:
The challenge facing this study is that access to some material is limited, one may need to
purchase information and some sources of research information may require verified
authority to receive access to them.

1.8.1. CHAPTER BREAKDOWN

CHAPTER 1: INTRODUCTION TO THE STUDY

Chapter one shall focus on the introduction to the topic and the purpose of the study. It will
include the background to the problem, statement of the problem, purpose of the study,
research questions, specific objectives of the study, scope and limitations of the study,
definition of terms and a chapter summary.

CHAPTER 2: THE LEGAL FRAMEWORK REGARDING COMPULSORY

ACQUISITION AND JUST COMPENSATION IN KENYA.

This chapter shall focus on the laws that guide the process of compulsory acquisition and
where just compensation comes in. It shall also look at the effectiveness and compliance to
the laws put in place concerning the same.

This chapter shall look at different case studies involved in the compulsory acquisition
process and how just compensation was affected and in addition, look at how courts have
interpreted the issue of just compensation.

The chapter shall also analyse the limitations and the challenges, the law of compulsory
acquisition faces in determining a detailed definition of what amounts to just compensation.

12
CHAPTER 3: PRINCIPLES GUIDING JUST COMPENSATION

This chapter will focus mainly on the principles that should guide the law in defining what
amounts to just compensation. The chapter shall look at various schools of thought, that
guide the principles themselves.

CHAPTER 4: COMPARATIVE STUDY

This chapter shall investigate the process of just compensation in South Africa as compared
to Kenya. The chapter shall focus on the regimes and principles that the country uses in
defining what is just compensation and what does it entail.

CHAPTER 5: CONCLUSION, FINDINGS AND RECOMMENDATIONS

This chapter shall conclude the dissertation by giving the findings discovered throughout
this study, possible solutions and recommendations that will help in defining what exactly
is just compensation.

13
CHAPTER 2: THE LEGAL FRAMEWORK FOR COMPULSORY
ACQUISITION AND JUST COMPENSATION IN KENYA

Introduction:
To effectively define what just compensation is, the starting point should be discussing how
the present laws and case precedents have viewed compulsory acquisition and more
specifically, the aspect of just compensation after compulsory acquisition occurs.

Therefore, this chapter shall focus on the laws that guide the process of compulsory
acquisition and where just compensation comes in. This will be done by analysing the
different legislations from the pre-2010 Constitution regime and post the promulgation of
the Constitution of Kenya 2010; in addition, it shall look at the effectiveness and
compliance of these laws.

The objective of this chapter is to determine whether there are gaps in the law involving
compulsory acquisition and what amounts to just compensation.

This chapter shall also touch on the different institutions that are involved in compulsory
acquisition and how they operate in matters of just compensation.

Different case studies that involved the compulsory acquisition process and how just
compensation was affected shall be investigated and in addition, look at how courts have
interpreted the issue of just compensation.

2.1. PREVIOUS AND CURRENT LEGAL STATUTES GOVERNING

COMPUSORY ACQUISITION AND JUST MPENSATION:
Over time, Kenyan legislators have drafted and put into force a number of laws that guide
issues to do with land. The following section, shall discuss the laws that have guided the
process of compulsory acquisition in Kenya:

A. PRE- INDEPENDENCE LEGISLATION:

i. Land Acquisition Act of India

The earliest land law to reflect compulsory acquisition, was the Land Acquisition Act of
India which provided that, should it appear to the relevant authorities that the land would
be required for public purpose, a notification to that effect would be published in the

14
Official Gazette.54 The Act further provided under the same section, that upon issuance of
notice, any or specific authorities could enter upon that land and compulsorily acquire it if
they deem it fit for the use that they have planned for.55

The provision for compensation was provided under the same Act, where it stated that the
relevant authority that made the compulsory acquisition, should make payment in full for
all the necessary damage that would be done.56

ii. Crown Lands Ordinance

The Crown Lands Ordinance of 1915 came in after and made the provision stating that all
land belonged to the Queen and was subject to disposal at her will.57 This meant that land
could be acquired at any given time and used according to how the colonial power deemed
fit without seeking the permission or consent of the natives of the land and granted no form
of compensation.

The other effect of the Ordinance was that it extinguished the aspect of communal land and
therefore, land could be taken by the colonial powers at will, without compensating the
tenants of the land, who were mostly different communities58 This was made possible as it
upon extinguishing the communal aspect of land, it meant that the natives could not be
protected by customary law hence their land could be acquired without adhering to the said
customary laws and no form of compensation was made.

iii. Native Lands Trust Ordinance

It was not until 1930, when the issue of compensation for land appropriation was revisited;
which led to the enactment of the Native Lands Trust Ordinance.59 The Ordinance allowed
Natives to be recognised as landowners through being granted leases for a specific period.60
The legal effect of this piece of legislation was that, by virtue of the Natives being land
owners, compensation was made for any native reserves appropriated for public use. The

54
Section 4(1), Land Acquisition Act (Act No.1 of 1894).
55
Section 4(2), Land Acquisition Act (Act No. 1of 1894).
56
Section 5, Land Acquisition Act (Act No 1 of 1894).
57
Karari P, ‘Modus Operandi of Oppressing the “Savages”: The Kenyan British Colonial Experience’25
Nova South Eastern University1,2018,3.
58
Karari P, ‘Modus Operandi of Oppressing the “Savages”: The Kenyan British Colonial Experience’25
Nova South Eastern University1,2018,3.
59
Karari P, ‘Modus Operandi of Oppressing the “Savages”: The Kenyan British Colonial Experience’25
Nova South Eastern University1,2018,4.
60
Karari P, ‘Modus Operandi of Oppressing the “Savages”: The Kenyan British Colonial Experience’25
Nova South Eastern University1,2018,4.

15
Ordinance provided that compensation made was to be made in monetary form i.e.
compensation through money, but did not expound further than that.61 Under one of the
Parliamentary Hansards, the natives were to be compensated in such a manner a white
settler would be compensated if their land was appropriated; this was the first instance of
monetary compensation where compulsory acquisition was involved.62

B. POST- INDEPENDENCE LEGISLATION:

a) Pre-2010 Constitution:
i. Land Acquisition Act of 1968(Repealed)

In 1968, the Land Acquisition Act of Kenya(now repealed) came into force, and served as
the first regional(local) statute, post-independence, to deal with matters concerning
compulsory acquisition in Kenya.63 This Act was the most detailed, in terms of procedure
to deal with matters of compensation. The introductory bit of the Act, noted that the purpose
of the Act was to guide matters to deal with compulsory acquisition of land, for the benefit
of the public.64

A notable feature of the Act was that it introduced the term ‘award’ to refer to compensation
made after compulsory acquisition was done.65The introduction of the term award to refer
to compensation, meant that the Kenyan Legal System recognised the importance of
compensating upon arbitrarily acquiring land.

The Land Acquisition Act provided a detailed process of handling matters to do with
compulsory acquisition. To begin with Sections 3 to 5 of the Act provide the necessary
steps to be taken upon entry level of the process of compulsory acquisition. The starting
point was that where the Minster at that time was satisfied that there was need to acquire
land for public purposes, he was to provide a Gazetted notice, and copies of the same to all
the parties that had an interest in the land.66

The Act went ahead to note that a mere notice would not suffice entry into the land premise
that is meant to be acquired unless two conditions are met: that the owner of the land gives

61
United Kingdom Parliament Hansard Report,20 December 1932,913.
62
United Kingdom Parliament Hansard Report,20 December 1932,911.
63
Preliminary, Land Acquisition Act (Cap 295 of 1968) (Repealed).
64
Preliminary, Land Acquisition Act (Cap 295 of 1968) (Repealed).
65
Section 2, Land Acquisition Act (Cap 295 of 1968) (Repealed).
66
Section 3, Land Acquisition Act (Cap 295 of 1968) (Repealed).

16
consent to entry of the land; if consent was not possible, a notice was meant to be served
upon the occupier of the land, which was meant to be given not less than seven days’ prior,
noting intention to enter the land.67

The first instance of compensation is noted under Section 5 of the Act, which states that
the Commissioner was meant to compensate in full, for any damages resulting from the
entry into the land.68It is important to note that this first compensation done, was only meant
to compensate the damage caused at entry level and not for the entire land.69The Act then
proceeded to state that where the land was acquired compulsorily, full and prompt
compensation was to be made to all the parties that had an interest in that particular land.70

Before compensation was made, a number of requirements had to be met:71

• The Commissioner was meant to lodge a hearing of claims of compensation by any

person claiming interest to the land in question.
• The Commissioner was meant to inquire and ascertain who are the interested parties
to the land.
• The value of the land being acquired had to be determined by the Commissioner.
• If upon confirmation, there was more than one person having interest in the land,
the Commissioner had to determine was the compensation payable to each of the
parties involved.
• Every interested party involved in the land acquisition process i.e. the Public body
which the land is being acquired for and the party claiming interest, had a right to
be heard at an inquiry.

Upon conclusion of the inquiry of compensation, the Commissioner was meant to make a
written award, separately for each of the party that had been determined to have a valid
interest in the land in question.72 The Commissioner was to then give notice to the interested
parties of the award and offer of compensation.73 The Commissioner was to then make
payments of the compensation within reasonable time after issuing the notice of award;74

67
Section 4, Land Acquisition Act (Cap 295 of 1968) (Repealed).
68
Section 5, Land Acquisition Act (Cap 295 of 1968) (Repealed).
69
Section 5, Land Acquisition Act (Cap 295 of 1968) (Repealed).
70
Section 8, Land Acquisition Act (Cap 295 of 1968) (Repealed).
71
Section 9(3), Land Acquisition Act (Cap 295 of 1968) (Repealed).
72
Section 10, Land Acquisition Act (Cap 295 of 1968) (Repealed).
73
Section 11, Land Acquisition Act (Cap 295 of 1968) (Repealed).
74
Section 13(1), Land Acquisition Act (Cap 295 of 1968) (Repealed).

17
This formed what was known as a conclusive award. It is important to note that in some
instances, an award could be deemed invalid through the following circumstances:75

• The Interested party does not consent to the award given

• There is no person with the authority/competence to receive the award.

ii. The National Land Policy on Compulsory Acquisition:

The National Land Policy has notably informed the legal framework concerning
compulsory acquisition, having two drafts of 2007 and the final draft of 2009.76Under the
2007 draft of the Policy, it noted that the established procedures for compulsory acquisition
are either abused or not followed, leading to irregular acquisitions.77 The Policy proposed:

• That, the Government Review the law on compulsory acquisition.

• That, the institutional framework for compulsory acquisition be harmonised to
avoid clashing roles.
• That, a criterion dealing with compulsory acquisition be established, and the need
to ensure that processes and procedures are efficient, transparent, and accountable.
• That, the Government Institute legal and administrative mechanisms for the
exercise of the power of compulsory acquisition by the State through the National
Land Commission.
• That Government should confer pre-emptive rights on the original owners or their
successor in title where the public purpose or interest justifying the compulsory
acquisition fails or ceases.

The final draft of the Policy in 2009, further elaborated on the issue of compulsory
acquisition and compensation in a number of ways:

• By defining it to mean the power of the State to acquire any title or other interest in
land for a public purpose, subject to prompt payment of compensation.78
• By elaborating on the aspect of development control; the policy defines it to mean
the power of the State to regulate property rights in urbanised and rural land, and is

75
Section 13(1), Land Acquisition Act (Cap 295 of 1968) (Repealed).
76
Foreword, National Land Policy, Ministry of Lands, Sessional Paper Number 3, 2009, vii.
77
Article 46, Draft National Land Policy, 2007, 10.
78
Article 45, National Land Policy, Ministry of Lands, Sessional Paper Number 3, 2009,11.

18
 based upon the duty of the State to promote public interest in land use.79The Policy
provides that in matters of development control, the State shall ensure compensation
is made where development control amounts to compulsory acquisition.80
• The Policy noted that there was need for the Land Acquisition Compensation
Tribunal to review its functions to adapt and assert its relevance in matters of
compulsory acquisition and compensation.

b) Post 2010 Constitution of Kenya

i. The Constitution of Kenya (2010)

It was with the taking into account the recommendations of the National Land Policy that
Article 40 of the Constitution promulgated that every person has a right to own property,
either individually or in association with others.81It further provides that the State shall not
deprive any person arbitrarily of their property, unless it concerns public interests; and the
deprivation of the property in question, must be carried out in accordance with the
provisions of the Constitution and an legislation that requires that just compensation be
made in full and as soon as possible.82 The Constitution set the foundation that led to
enactment of other laws that delved into the issue of compulsory acquisition and just
compensation; this is seen where it gives directive that the Parliament is to revise,
consolidate and rationalise existing land laws.83

ii. The Land Act

Just compensation under the Land Act of Kenya is defined as a form of fair compensation
that is assessed and determined through the criteria set out under the Act.84

The aspect of just compensation is then reiterated in The Land Act of Kenya, where the Act
provides that just compensation should first be made for any damages resulting from entry
into the land for inspection;85and upon acquiring the land compulsorily, just compensation
shall be made in full and promptly, to every party that establishes they have a legitimate

79
Article 48, National Land Policy, Ministry of Lands, Sessional Paper Number 3, 2009,12.
80
Article 51(f), National Land Policy, Ministry of Lands, Sessional Paper Number 3, 2009,13.
81
Article 40, Constitution of Kenya 2010).
82
Article 40(3) (b) (i), Constitution of Kenya (2010).
83
Article 68(a), Constitution of Kenya 2010).
84
Section 2, Land Act (Act No 6 of 2012).
85
Section 109, Land Act (Act No 6 of 2012).

19
interest in the property in question.86 The Act then proceeds to provide that compensation
can be done in a number of ways such as; allocating an alternative parcel of land that has
similar value, comparable geographical location and land use to the land compulsorily
acquired, monetary payment among other forms of payment.87

The Act additionally states that payment of compensation shall be made only upon the
exercise of due diligence which shall include a final survey and the determination of
acreage, boundaries, ownership, and value.88

iii. The Land Value (Amendment) Act

The Land Value Index Laws (Amendment)Act of 2019 provides a criterion of what is to be
viewed as just compensation in the Kenyan context. The Act provides that there shall be
a criterion to determine valuation and compensation for free hold, community and lease
hold land.89The Act further provides that there be an amendment to Section 2 of the Land
Act, to introduce the definition of just compensation as being a form of fair compensation
that is assessed and determined through criteria set out under the Act.90

Several requirements are provided by the Act, to be taken into consideration during in
determining what would amount to just compensation:

a. That the compensation be made in good faith;

b. damage sustained or likely to be sustained by persons interested at the time of
the Commission's taking possession of the land by reason of severing the land
from other land;
c. damage genuinely resulting from diminution of the profits of the land between
the date of publication in the Gazette of the notice of intention to acquire the
land;
d. the number of persons in actual occupation of the land for an uninterrupted
period of twelve years immediately before the publication of notice of intention
to acquire the land;
e. improvements done before the date of publication in the Gazette of the notice
of intention to acquire the land;

86
Section 111(1), Land Act (Act No 6 of 2012).
87
Section 111(1B), Land Act (Act No. 6 of 2012).
88
Section 119, Land Act (Act No. 6 of 2012).
89
Section 6, Land Value Index Laws (Amendment) Act (No 15 of 2019).
90
Section 2, Land Value Index Laws (Amendment) Act (No 15 of 2019).

20
 f. damage sustained or likely to be sustained by the occupants of the land at the
time of the Commission's taking possession of the land injuriously affecting
other property, whether movable or immovable or in any other manner affecting
the person's actual earnings;
g. if, in consequence of the acquisition, any of the occupants of the land will be
compelled to change residence or place of business, the payment of reasonable
expenses is to be determined by the Commission.91

iv. Land Assessment of Just Compensation rules

The rules were promulgated by the National Land Commission to give effect to the
provisions of the Land Act, which states that the Commission shall draft rules to regulate
the assessment of just compensation.92 The rules stipulate that the National Land
Commission shall determine the amount to compensate(just compensation)victims of
compulsory acquisition, based on the market value of the land in question.93 Additional
factors to be considered as stipulated by the rules inter alia include reasonable expenses
incidental to the relocation any of the people with interests in the land or persons who will
have to change residence or their place of business due to the acquisition process and,
94
damages resulting as a loss of profits the land yielded between the gazetted date by the
commission of the intention to acquire and the date of actual possession by the National
Land Commission.95

The above provisions show the efforts by the Kenyan Legal System to provide a scope of
what will amount to fair valuation and just compensation in the process of compulsory
acquisition however, it does not fully address all the tenets that are required to define just
compensation. The provisions stated above do not provide the principles that should guide
just compensation, it also heavily places emphasis on the monetary aspect of compensation
whereas the correct position should be striking a balance between the monetary and non-
monetary aspects of compensation

91
Section 6, Land Value Index Laws (Amendment) Act (No 15 of 2019).
92
Section 111(2), Land Act (No 6 of 2012).
93
Rule 4(1), The Land (assessment of Just Compensation) Rules (2017).
94
Rule 3(d), The Land (assessment of Just Compensation) Rules (2017).
95
Rule 3(e), The Land (assessment of Just Compensation) Rules (2017).

21
2.2. ANALYSIS OF THE LEGAL FRAMEWORK
Introduction
Having looked at the legal provisions on compulsory acquisition, and specifically the aspect
of just compensation, the following can be inferred:

a. The Legal provisions over time, have tried to explain in detail how compulsory
acquisition should operate and where compensation is necessary.
b. That, there provisions over time have presented a number of limitations in defining
what just compensation should amount to.

This section of the chapter thus discusses the various limitations that the laws on
compulsory acquisition presents in defining what amounts to just compensation.

The limitations are as follows:

A. Just Compensation has been partially defined

The law has made a notable endeavour to resolve the issue of just compensation by
acknowledging it under the Constitution, 96and addressing the same under various Sections
of the Land Act of Kenya.

The Land Act defines just compensation as a form of fair compensation that is to be decided
through the criteria provided by the provisions of the Act.97 This definition at face value is
rigid, as it limits what amounts to just compensation to the provisions of the Land Act
only, this presents a problem as some important aspects of just compensation which are not
captured within the Act, may not be considered during interpretation of the same, which
may result to the Courts setting inaccurate precedents, when handling matters of just
compensation.

96
Article 40(3) (b) (i), Constitution of Kenya (2010).
97
Section 2, Land Act (Act No 6 0f 2012).

22
 B. Just Compensation has been limited to the scope of financial compensation

This limitation is premised on the argument that just compensation, is not only limited to
financial compensation but is most importantly based on individual preferences, including
the preferences of the person the land is being taken away from. 98 This is to mean that,
paying victims of compulsory acquisition in terms of monetary compensation alone, and
presuming that they have been fully and justly compensated is a wrong argument.

Some losses occurring from occurring from compensation take up non-monetary forms
such as the following:

• Monetary compensation cannot match the loss that one person faces due to the
sentimental attachment they have to the property or to the community where the
land property lies. 99
• It is difficult, for monetary compensation to compensate the spiritual attachment
that communities have to the land they live on.100From the perspective of
Traditional African Communities, land did not was not utilised only for social and
economic benefits, but was also viewed as a medium of binding together the intra
and inter-generational social and spiritual relations; in addition, land among
communities is viewed as to belonging to the living, the dead and the unborn.101
• Monetary compensation, deprives the victims of compulsory acquisition, the
personal choice they have of considering whether to keep the land in question or
perform any other transaction with it.102

Another challenge of limiting just compensation to financial compensation, is that it

excludes the victims of the acquisition from gaining any wealth that the land may generate
in the future;103 for example, when land is acquired for building a railway line or a railway
station, it increases the value of the land from its initial value, as it receives more economic
gain.

98
Wyman MK, ‘The Measure of Just Compensation’41University of California239, 2007,254.
99
Wyman MK, ‘The Measure of Just Compensation’41University of California239, 2007,255.
100
Bonaya A.G,’ Compulsory Acquisition and the Right to Property: The Gaps in the Legal Framework,
Practices and Possible Solutions’ Published Dissertation, Strathmore University, Nairobi, 2018, 10.
101
Kariuki F, Ouma S, Ng’etich R, Property Law, Strathmore University Press, 2016,152.
102
Wyman MK, ‘The Measure of Just Compensation’41University of California239, 2007,255.
103
Wyman MK, ‘The Measure of Just Compensation’41University of California239, 2007,255.

23
In the case of Mike Maina Kamau v Attorney General, the court adopted the following view
on compensation, “…that sum of money which will put the injured party in the same
position as he would have been if he had not sustained the wrong for which he is now
getting his compensation or reparation.”104

Similarly, in the case of Patrick Musimba v National Land Commission & 4 others, the
Court held that for just compensation to be achieved, the victim must receive a price equal
to the monetary loss suffered; and that this can only be realised by referring to the market
value of the land.105

In the Petition case of Erastus Njonjo Mote & 3 others v Attorney General & 2 others, the
Petitioners contended that the Respondents had not co0mpensated them adequately when
their land was compulsorily acquired for purposes of constructing the Northern Bypass,
and sought a re-evaluation of the compensation they had initially received.106 Though the
court dismissed the prayers sought for re-evaluation of the compensation, it was still of the
view that, if valuation was to be done, it should have been from a monetary based
approach.107

C. The Timeframe for Compensation has not been Clearly Defined

Both the Constitution of Kenya and the Land Act, provide that just compensation shall be
made promptly and in full to all parties that have been established to have a legitimate
interest in the land.108 The Land Act additionally adds, that after notice of an award is
given, compensation shall be done promptly by the National Land Commission.109This
presents an issue, as the term ‘promptly’, can be open to self- interpretation by the body
compulsorily acquiring the land and therefore lead to delayed just compensation of the
affected victim(s), as the provisions do not provide a clear or rather specific time frame for
just compensation to occur. The Act further states that The Commission shall, as soon as is
practicable, pay full and just compensation to all persons interested in the land;110this
similarly presents the issue of leaving the time-frame of compensation to self-interpretation

104
Mike Maina Kamau v Attorney General (2017) eKLR.
105
Patrick Musimba v National Land Commission & 4 others (2016) eKLR.
106
Erastus Njonjo Mote & 3 others v Attorney General & 2 others (2017) eKLR.
107
Erastus Njonjo Mote & 3 others v Attorney General & 2 others (2017) eKLR.
108
Section 111, Land Act (Act No. 6 of 2012) and Article 40, Constitution of Kenya (2010).
109
Section 115, Land Act (Act No. 6 of 2012).
110
Section 125(1), Land Act (No. 6 of 2012).

24
by the relevant authorities and thus leading to the delaying of payment to the victims of
compulsory acquisition.

2.3. Case Studies on the Issue of inadequately defining Prompt

Compensation

In a number of cases, the failure of defining the term ‘promptly’ has led to delayed
compensation of the victims whose property had been compulsorily been acquired.

For example, the Standard Gauge Railway case study seen in the case of Africa Gas and
Oil Company Limited v Attorney General & 3 others, where the Kenya Railways
Corporation had compulsorily acquired land for purposes of construction of the Standard
Gauge Railway. Despite the Court ruling in favor of the Applicant and ordering the
Respondent to make compensation, it was reported that many of the victims of the
compulsory acquisition had not been compensated as late as two years after compensation
was to take place.111
In another case study of the construction of the Embakasi-Machakos turn off and Machakos
turn off- Sultan Hamud Road, seen in the case of Mathatani Limited v Commissioner of
Lands, the Petitioner’s land had been compulsorily acquired and compensation was made
four years after the land was appropriated from the petitioner. The Court held that the
compensation that was made to the plaintiff, was not valid as it was not made in accordance
with the provisions of the law.112
From this case, it is clear that the respondent delayed compensation of the land that was
compulsorily acquired by virtue of not having a clear time frame by the law on when
compensation should be made, and therefore led to unjust compensation.

Conclusion
From the analysis made in this chapter, on the legal framework of compulsory acquisition
and more specifically, just compensation, it is clear that the gaps within the law must be
rectified to eliminate ambiguities when it comes to just compensation. The next two
chapters, therefore, shall provide the necessary guiding tools, to provide an expansive scope
of what should amount to just compensation.

111
‘Beja Patrick: Hundreds yet to receive compensation for the Standard Gauge Railway land’ The Standard
Newspaper, 18 January 2016< http://www.standardmedia.co.ke/article/2000188492/hundreds-yet-to-
receive-compensation-for-sgr-land> on 5 December 2019.
112
Mathatani Limited v Commissioner of Lands (2013) eKLR.

25
CHAPTER 3: GUIDING PRINCIPLES AND CONCEPTS TO
CONSIDER WHEN DEFINING JUST COMPENSATION
Introduction

As has been identified in the previous chapters, the legal framework covering compulsory
acquisition, is silent as to what amounts to just compensation. This chapter, therefore, shall
propose principles and concepts that should be considered, in defining what amounts to just
compensation.

The principles discussed herein, shall ensure that the definition of just compensation, also
encompasses the non-monetary aspect within its scope.

The following should be used as a guide in matters of just compensation:

A. PRINCIPLE OF RESTITUTION
The principle of restitution finds it basis in equity. Black’s Law Dictionary defines equity
to mean what is just, conforming to the principles of natural justice, is right, fair and is
correct in consideration of the facts and circumstances of an individual in a particular
case.113 Equity has also been described as focusing of justice to individuals and overriding
set out rules.114

Merriam Webster Dictionary views restitution in two ways namely: the act of restoring
something to its rightful owner or making good (compensation) of or giving an equivalent
for some injury; it also provides restitution to mean legal action having the purpose to bring
about restoration of a previous sate.115

These definitions of terms provided above, help put into perspective, the factors that are/
should be considered when defining the principle of restitution, which are as follows:

a. Where one party is enriched(receives a gain) at the expense of the claimant in

question, the party that has received the gain, the best remedy would be one of an
equitable nature, specifically that of restitution.116

113
Black’s Law Dictionary, 2 ed.
114
Getzler J, Rationalizing Property, Equity & Trusts,1 ed, Lexis Nexis Butterworths, United
Kingndom,2003,85.
115
Meriam Webster Dictionary, 11 ed.
116
Getzler J, Rationalizing Property, Equity & Trusts, 86.

26
 b. Although showing enrichment may be a valid ground for restitution, it may be in
some circumstances, not necessary.117 The mere fact that a wrongdoing occurred
even though enrichment cannot be proven, is a sufficient reason for restitution.118

Relating this principle to just compensation; the State acquiring land from the initial
occupier, can be seen as a form of enrichment by the State i.e. the land acquired by the
State shall be used for development purposes and increase in value at the expense of the
person or people whose land has been possessed .Therefore, just compensation must take
into account that the enrichment of the state is at the expense of the victim of compulsory
acquisition and thus compensation must be done in a manner that is right, fair and considers
every aspect of the facts and circumstances of the person or people in question. This would
therefore mean, that just compensation should also consider the non-monetary aspects that
have been explained in the previous chapters. In addition, where there was wrongful
compulsory acquisition, just compensation should consider the principle of restitution, to
ensure accountability when compensating and eradicate land injustices.

The absence of this principle has been seen in the Kenyan legal framework under the well
documented case of the Ogiek Community in the African Court on Human and Peoples’
Rights(AfCHPR) ; the case notes that the Government of Kenya compulsorily acquired and
forcefully evicted the Ogiek Community from their residence within the Mau forest, in
which was their main source of economic, social, and spiritual livelihood.119 The Court
held that the Government of Kenya had illegally acquired and evicted the Ogiek
Community; and that among the several arguments posed such as the area being a water
catchment area did not alone suffice. 120 Despite the Court granting the judgement in favour
of the Ogiek Community, no form of restitution nor compensation has been documented
since, in any case, recent reports indicate that the Ogiek community is still being forcefully
evicted from their land within the Mau Forests.121

117
Getzler J, Rationalizing Property, Equity & Trusts, 86.
118
Getzler J, Rationalizing Property, Equity & Trusts, 86-87.
119
ACmHPR v Republic of Kenya, ACmHPR Comm.006/2012 (2017).
120
ACmHPR v Republic of Kenya, ACmHPR Comm.006/2012 (2017).
121
Minority Rights Group: Kenya Flouts African Court Judgment, Continues to Evict Ogiek in the Midst of
COVID-19 Pandemic, < https://minorityrights.org/2020/07/17/ogiek-evictions/> on 27 October 2020.

27
Therefore, there is need for the tenets of the principle of restitution be incorporated in the
Kenyan legal framework to ensure that the enrichment of the State does not come at the
expense of the victims whose land has been compulsorily been acquired.

B. PROPERTY IS VALUE-LADEN:
The first principle connotes that property accepts a particular set of values.122This is to
mean that when viewing any form of property, it should be considered as to follow certain
values; for example in Kenya, the Constitution of Kenya provides that land should be
managed in accordance with certain principles such as transparent and cost effect
administration of land, ensuring security of land rights, among others.123Another example
would be as seen in traditional practice, where land was governed by traditional customary
values and practices under the leadership of the traditional leaders.124

This principle notes that it is not enough to view property in the sense of being owned (for
example: I own a piece of land) but should acknowledge that in every property, there exists
a right to that property.125 Therefore, for just compensation to be carried out in the right
manner, it must take into account that the property such as land is not just mere physical
property, but that there are certain rights attached to that land that should be considered; for
example, if the State or any entity that wishes to acquire communal land in Kenya, it making
compensation, the body in question should also consider the rights relating to Communal
land as provided under the Constitution of Kenya.126

Perhaps to expound more on the argument that the value of property such as land, proceeds
beyond the physical aspect i.e. one cannot always equate property with physical things; one
could take note that in Traditional African Communities, land is not just used for economic
gain, but it is a source of spiritual ties, connecting the living with the ancestors as has been
explained in the previous chapters.

It is thus paramount, that for just compensation to be conclusively defined, it must

acknowledge that land exceeds beyond its physical aspect, and therefore must into account

122
McFarlane B, Hopkins N and Nield S., Land Law Text, Cases & Materials, Oxford University Press,
NewYork,2009,32.
123
Article 60, Constitution of Kenya (2010).
124
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies (2009), 34.
125
McFarlane B et al, Land Law Text, Cases & Materials, 33.
126
Article 60, Constitution of Kenya (2010).

28
more than the monetary aspects such as the market value of the land, and ensure the non-
monetary aspects such as the ties the person(s) has towards that land, is also considered.

C. PRINCIPLE OF LEGITIMACY IN PROPERTY

Ben McFarlane et al in their book, describe this principle as to mean that when one claims
a certain piece of property such as land, they have a right to that property in
question.127Having a right to that land, means that one has the right to a certain degree of
control over that property and to that effect, gives the person with the right to that property,
a legitimate claim to that property.128 From the above explanation, one can therefore infer
that a legitimate claim in property can only arise where one has proved that they have a
right in that property in question.

In the Kenyan context therefore, when the State wishes to compulsorily acquire land, it
must establish that they have a legitimate claim under the provisions of Article 40(3) of the
Constitution of Kenya.129 Similarly, the person whose land is being appropriated must show
for purposes of just compensation, which they had a right(s) in the land they were in, so
that these rights, may be considered in awarding of the compensation to them. Some of the
rights may include the right to own property enshrined under the provisions of Article 40
and Article 65 of the Constitution of Kenya.130

D. THE CONCEPT OF SEISIN POSSESSION:

This concept, founded in Common law, states that proprietary rights present in land are
based on physical possession and not so much focusing on the idea of having proof of
ownership such as a title deed.131

Under Common Law, being in physical possession of land created a free hold interest to
the occupier of the land, which meant that the owner had complete control over the land.132

The only way that possession by the actual occupier could be overpowered, was if another
entity had a superior claim to that land.133

127
McFarlane B et al, Land Law Text, Cases & Materials, 33-34.
128
McFarlane B et al, Land Law Text, Cases & Materials, 33-34.
129
Article 40(3) (b) (i), Constitution of Kenya (2010).
130
Article 40 and Article 65, Constitution of Kenya (2010).
131
Gray K. and Gray SF, Land Law, 4ed, Oxford University Press, NewYork,2006,91.
132
Gray and Gray, Land Law,94.
133
Gray and Gray, Land Law,94.

29
In the case of Peaceable d Uncle v Watson, the Court held that it was key for possession to
be proved to serve as evidence to show seisin in a fee simple matter.134

The importance of seisin was seen in the case of London Borough of Harrow v Qazi, where
it was held that even if the person who is in actual possession of the land has no tittle to the
same, they have the right to live peacefully on their property without interference from
anyone except when there is another party that poses a better right to possession.135

Gray and Gray in their book, solidify this point by quoting a section of a speech noting that
a person who is possession even though has no right has a greater right than one a person
who is out of possession and has no right as well.136

Therefore, relating this to just compensation; when defining just compensation, it must take
note of the fact that possession is an important aspect which will influence the form of
compensation will take. When the concept of seissin possession is taken into account, the
State will then have to compensate not only from a monetary perspective but from a
perspective that considers the initial possessor as one who has a right to fair compensation
and receiving their correct due by virtue of having a freehold interest in the land. In simple
terms, the state in considering seisin possession, will compensate the owner of the land as
if they were still the sole proprietor of the land and not as victims of compulsory acquisition.

The concept of seisin possession is also important as it tries to create a balance of interests.
Whereas the initial owner has a common law generated free hold interest as has been seen
above, if the State can prove that they have a better right to possession such as on grounds
of public interest, as has been seen in the London Borough case, then an amicable
agreement can arise between the person whose land has been acquired and the state, which
will lead to just compensation.

Conclusion

From the analysis made above, it is evident that just compensation must borrow from
different concepts and principles that have been well established to define just
compensation conclusively and incorporate further than the monetary aspect of
compensation, the non- monetary aspects as well, in order to have a complete definition.

134
Peaceable d Uncle v Watson (1811).
135
London Borough of Harrow v Qazi (2004) United Kingdom House of Lords.
136
Gray and Gray, Land Law,94.

30
CHAPTER 4: COMPARATIVE ANALYSIS OF JUST
COMPENSATION BETWEEN KENYA AND SOUTH AFRICA

A. Introduction

To properly define just compensation within the Kenyan legal system, it is necessary to
view how it has been interpreted in legal systems of other jurisdictions. This chapter thus,
shall briefly look at how the just compensation is viewed in South Africa and compare it to
the Kenyan legal system, as South Africa offers substantive jurisprudence on the critical
aspects required in achieving the issue of just compensation.

4.1. ANALYSIS OF THE LEGAL FRAMEWORK

The pinnacle of just compensation in South Africa is enshrined in its constitution. It

provides that where land is expropriated, compensation shall be made subject to which, the
amount, time and manner of compensation shall be agreed by the victims whose land was
compulsorily acquired or decided by a competent court.137

It further states compensation shall be done in a just and equitable manner; equitable to
mean that there should be equity between public interests and the interests of those who
have been affected by the expropriation process.138 For there to be just and equitable
compensation, the Constitution of the Republic of South Africa notes that some of the
factors to be considered are as follows:139

• The history of how the property was acquired and how it has been used.
• How the property is being currently used?
• The current market value of the property in question.
• The purpose for acquiring the property.
• The extent of direct state investment and the amount it would cost to make
improvements to the property.

137
Article 25(2) (b), Constitution of The Republic of South Africa (1996).
138
Article 25(3), Constitution of The Republic of South Africa (1996).
139
Article 25(3), Constitution of The Republic of South Africa (1996).

31
Under South African jurisprudence, the courts have held as follows:

In the case of Abraham Lama Wollach N.O.& Another v The Government of the Republic
of South Africa & 3 Others, the court held that the amount of the compensation and the
time and manner of payment must be just and equitable, reflecting an equitable balance
between the public interest and the interest of those affected, and having regard to all
relevant circumstances.140

In the case of Johannes UYS N.O & Another v Msindo Phillemon Msiza & 2 Others, the
court was of the opinion that though determining the market value would be a convenient
starting point for matters of compensation, it would not necessarily achieve equitable and
just compensation; in order to achieve just compensation, other relevant factors should also
hold as much weight as the aspect of market value.141

In the case of Ash and Others v The Department of Land Affairs, the court was of the
opinion that the correct formula to achieving just and equitable compensation would by
determining the market value of the property in question and thereafter adding to or
subtracting from the amount of the market value, as other circumstances may require.142

It is important to note that legal framework of South Africa brings to light key issues
necessary in the process of just compensation. To begin with, in determining the amount
that shall be considered for just compensation, the law requires that the victims of
compulsory acquisition be involved in the determination of the award process. This is
critical, as the victims of the acquisition will be able to outline the non-monetary aspects
of the land they possessed; for example, where a community land is involved, the tenants
of the land will be able to identify non- monetary ties present to the land, such as spiritual
and sentimental ties that the land may possess.

The other critical non- monetary consideration that presents itself from the legal framework
of the South African jurisdiction, is the need to balance the interests of the state and victims
of the process of acquisition. As has been mentioned earlier, just compensation must seek

140
Abraham Lama Wollach N.O.& Another v The Government of the Republic of South Africa & 3 Others
(2018), Land Claims Court of South Africa.
141
Johannes UYS N.O & Another v Msindo Phillemon Msiza & 2 Others (2017), Supreme Court of Appeal
of South Africa.
142
Ash and Others v The Department of Land Affairs (2000), Land Claims Court of South Africa.

32
not to only benefit the state acquiring the land in question but also benefit the victims whose
land has been acquired.

From the analysis made in the Kenyan jurisdiction from the previous chapter, the victims
of compulsory acquisition are not involved in the process of determining what is just
compensation, as that role has been specifically been assigned to the National Land
Commission, therefore poses the danger of omitting significant considerations that the
victims may have, that would form part of the just compensation process.

Additionally, as has been seen with the case studies in the previous chapters, the issue of
not defining what the term promptly means, and not fully defining what is just
compensation, has denied the achievement of balancing the interests of the state and the
victims of acquisition, as the State benefits more from the process, than the victims
themselves therefore causing land injustices and unequitable compensation.

Comparing this to South Africa’s perspective of just compensation, it is notable that South
Africa’s legislation has taken into consideration, more than just the monetary aspect, when
it comes to just compensation. This is seen where the Constitution of the Republic of South
Africa notes aspects of looking the history of the land, balancing public interests versus
the rights of those affected by the expropriation of land and the present and past use of the
land in question.143

B. Conclusion:

It is evident from the analysis made herein, just compensation within the South African
jurisdiction does not limit compensation to the monetary aspect only but other relevant
circumstances hold as much weight and significance in order to achieve just and equitable
compensation. Therefore, it is necessary that the law on just compensation in Kenya be
reviewed in order to ensure that all relevant circumstances i.e. monetary and non-monetary,
are taken into consideration without devaluing or disregarding any of the circumstances
involved or stipulated by the law.

143
Article 25(3), Constitution of The Republic of South Africa (1996).

33
CHAPTER 5: CONCLUSIONS, FINDINGS AND
RECOMMENDATIONS

A. INTRODUCTION

It is evident through the research conducted herein, there have been notable efforts by the
Kenyan legal system to define what amounts to just compensation, however, the monetary
aspect such as the market value inter alia, has been overly emphasised, neglecting the other
relevant factors that should be considered to achieve just compensation.

To briefly summarise the chapters discussed in this study, Wyman in his paper, states that
the end of just compensation is to ensure that each victim of compulsory acquisition is
compensated in a manner such that they would not tell the difference as to whether
compulsory acquisition took place or not.144

To put into further perspective, in the case of Armstrong v United States, the court held that
the purpose of compensation is to prevent the Government from forcing some people to
bear public burdens alone; which should be borne by the entire public in order to promote
justice and fairness. 145

5.1. FINDINGS
The study herein had set out to achieve inter alia the following objectives:

1. To assess the effectiveness of the laws guiding just compensation and the
compliance towards them, in the process of compulsory acquisition in Kenya.

2. To identify the ambiguities, present in defining just compensation in Kenya and

examine the scope of the same i.e. what aspects should just compensation cover
apart from the monetary aspect.

144
Wyman MK, ‘The Measure of Just Compensation,’ 243.
145
Armstrong v United States (1960), United States Supreme Court.

34
Upon completing the objectives set, the following are the findings that the study
produced:

1. That the law in Kenya places excess emphasis on monetary compensation as to

amounting just compensation, in the process of compulsory acquisition. This has
been evidenced the legislations reviewed such as the Land (Assessment of Just
Compensation) Rules among others, which states that the National Land
Commission shall determine an award of compensation based on the market value
of the Land.146 Additionally, case precedents in the Kenyan jurisdiction also seem
to lean towards monetary compensation as to amount to just compensation.

2. That the failure to define just compensation properly has led to land injustices. This
can be evidenced by the case studies herein such as the Standard Railway Gauge
case where it has been reported that the victims of the land that was acquired for the
purposes of the railway, have not yet been compensated as late as two years since
the delivery of the judgement against the State compelling it to compensate the
victims in question.

3. That despite the efforts by the Kenyan Law to define what is just compensation, it
fails to include the non-monetary aspect of the same. This has led to the exclusion
of important aspects critical in deciding matters of just compensation.

4. That during the process of compulsory acquisition and just compensation, there is
lack of a balance of interests. This has been evidenced by the delays in payment of
just compensation by the State upon completion of the process of compulsory
acquisition, for example, in the case of case of Mathatani Limited v Commissioner
of Lands, the Petitioner’s land had been compulsorily acquired and compensation
was made four years after the land was appropriated from the petitioner.147

5. The study additionally put to task the hypothesis, “the definition of what amounts
to just compensation during the process of compulsory acquisition, is limited to
monetary compensation under the Kenyan law, and has failed to include the non-

146
Rule 4(1), Land (Assessment of Just Compensation) Rules (2017).
147
Mathatani Limited v Commissioner of Lands (2013) eKLR.

35
 monetary aspects of the same,” and determined that the hypothesis is true. From the
analysis made through the entire study herein, it has been significantly proven and
evidenced that the Kenyan legal framework has defined just compensation to
largely mean only monetary compensation.

5.2. RECOMMENDATIONS

Having critically analysed and identified the various gaps in the legal system in
conclusively defining just compensation, the study proposes the following
recommendations to solving the issue of conclusively defining just compensation:

1. That when defining just compensation, the Kenyan legal system should consider
the non-monetary aspects involved during compulsory acquisition such as spiritual
attachments of ancestral lands, personal attachments to a community, loss of a
community among others that have been discussed throughout the study.

2. That in defining just compensation, it should consider the significant common law
equitable principles such as restitution and its underlying principles, the concept of
seisin possession and the other principles noted in chapter three of this study. By
incorporating the mentioned principles, it shall be easier to include the non-
monetary aspects of just compensation when defining the same. This will eventually
result to having a more inclusive and fair process that will accommodate the
interests of both the State and the victims of the land that has been acquired
compulsorily.
3. That the amount of compensation to be given to the victims of compulsory
acquisition, be agreed upon by both the victims of the compensation and the entity
acquiring the land in questions this will bring about, as has been discussed in the
previous chapter, balancing of the interest of the victims of compulsory acquisition
and public interests.
4. That the term ‘promptly’ be defined conclusively i.e. that a fixed time frame be
given to state what amounts to promptly. By having a practicable and reasonable
timeframe for compensation, it shall reduce the risk of entities involved in the
process of just compensation and compulsory acquisition on self-interpreting the

36
 time period required to compensate the victims of acquisition and eventually lead
to the reduction of land injustices.

5.3. CONCLUSION

The Study herein embarked to address the issue presented in the statement of the problem
i.e. ‘For just compensation to be fully defined, it must consider that the same precedes
monetary compensation and that the non- monetary aspects are also a key factor in fully
defining the same. The law provides a limited scope on just compensation, as it restricts
just compensation to monetary compensation to a large extent. Therefore, if this issue is
not addressed, a great number of people shall not be justly compensated and their right to
property shall be infringed.’

From the analysis made in the subsequent chapters, one can conclusively state that the issue
presented above has been sufficiently addressed.

It is important, that moving forward, the legal framework concerning just compensation,
be revised to ensure that the gaps within the legal provisions are covered and rectified; to
also ensure that the courts moving forward, set correct precedents and ultimately ensure
that there is fairness and justice within this specific area of law.

In conclusion, the end of just compensation should be as has been stated in the Abraham
Lama Wollach case, compensation that reflects an equitable balance between the public
interests and the interest of those affected.148

148
Abraham Lama Wollach N.O.& Another v The Government of the Republic of South Africa & 3 Others
(2018), Land Claims Court of South Africa.

37
BIBLIOGRAPHY

A. BOOKS

i. Getzler J, Rationalizing Property, Equity & Trusts,1 ed, Lexis Nexis Butterworths,
United Kingndom,2003.

ii. McFarlane B, Hopkins N and Nield S., Land Law Text, Cases & Materials, Oxford
University Press, NewYork,2009.
iii. Gray K. and Gray SF, Land Law, 4ed, Oxford University Press, NewYork,2006.

iv. Bentham J, An Introduction to the Principles of Morals and Legislations,1781ed.

B. THESIS AND DISSERTATIONS

i. Chelimo S.I, ‘Registration of title to land: A critique of the Land Registration Act
no.3 of 2012’ Published LL.M Thesis, University of Nairobi, 2012.

ii. Bonaya A.G, ‘Compulsory Acquisition and the Right to Property: The Gaps in the
Legal Framework, Practices and Possible Solutions’ Published Dissertation,
Strathmore University, Nairobi, 2018.

C. CONFERENCE PAPERS

i. Longo JP, ‘The Concept of Property and The Concept of Compensation on

Compulsory acquisition.’ University of Tasmania Law Review,1983.

ii. Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory
acquisition of land and compensation’ Land Tenure Studies (2009).

iii. Thorpe F., ‘Federal and State Constitutions’ 1909 quoted in Longo JP, ‘The Concept
of Property and The Concept of Compensation on Compulsory acquisition.’
University of Tasmania Law Review,1983.

38
D. JOURNAL ARTICLES
i. Okoth-Ogendo HWO, 'The tragic African commons: A century of expropriation,
suppression and subversion' University of Nairobi Law Journal (2003).

ii. Karari P, ‘Modus Operandi of Oppressing the “Savages”: The Kenyan British
Colonial Experience’25 Nova South Eastern University1,2018.

iii. Wyman MK, ‘The Measure of Just Compensation’41University of California239,

2007.
iv. Kariuki F, Ouma S, Ng’etich R, Property Law, Strathmore University Press, 2016.

E. ONLINE RESOURCES

i. Beja Patrick: Hundreds yet to receive compensation for the Standard Gauge
Railway land’ <http://www.standardmedia.co.ke/article/2000188492/hundreds-
yet-to-receive-compensation-for-sgr-land>\ on 5 December 2019.

ii. Black’s Law Dictionary, 2 ed.

iii. Minority Rights Group: Kenya Flouts African Court Judgment, Continues to Evict
Ogiek in the Midst of COVID-19 Pandemic, <
https://minorityrights.org/2020/07/17/ogiek-evictions/> on 27 October 2020.

39