Economic development as a public purpose in compulsory land acquisition: an investigation

Abstract

Compulsory acquisition is the power of the state to extinguish or acquire any title or other interest in land for a public purpose, subject to prompt payment of compensation. It is thus used to acquire private properties from individuals who are in return justly compensated. The right to acquire an interest in land compulsorily has been recognized since very early times to the sovereign power. Public use has traditionally meant structures open to public but the increasing demand for land for development has led to public use mutating to public purpose which means any measure that conceivably benefits the public. Economic development as a use for compulsory acquisition is relatively new and challenges the public use requirement and thus it faces numerous recurring issues among many unresolved issues. These issues are important in the context of the benefits to 3rd parties. The study’s main goal was to determine to what extent compulsory acquisition may be used in order to facilitate economic development promoted by private entrepreneurs. It had therefore hypothesized that the current definition in Kenya’s constitutional and legal framework would render such acquisitions invalid. The study’s population included Government valuers, City Council of Nairobi valuers and Private sector valuers all within Nairobi. Data obtained from these and other augmenting sources was statistically analyzed. The main finding of the study is that although in other countries economic development as a public purpose had been accepted, in Kenya the constitutional and legal definition has not recognized it deeming it null and void as a use. The study therefore recommends among others a new economic development compulsory acquisition model premised on the Singapore enbloc process. This model will encompass the various modifications and improvements to the current law.