KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
erator must demonstrate rights of access to the property owner’s rooftop if it is not the owner. The Energy Act recognises that, for purposes of promoting energy investments, the national and county governments should facilitate the acqui- sition of land for energy infrastructure develop- ment. The acquisition of surface rights over land that is privately owned is based on a willing buyer/ lessee–willing seller/lessor basis. Parties negoti- ate the compensation based on existing market rates, subject to such premiums or discounts as they may deem necessary. The Energy Act requires any person intending to develop any energy infrastructure to seek the prior consent of the landowner, and to place a public advertisement and announcements on local radio stations if the landowner cannot be traced. If the owner of the land still cannot be traced, the licensee is then obliged to deposit the compensation for such land into a special compensation fund. The Cabinet Secretary is empowered under the Energy Act to apply for the compulsory acqui- sition of land in compliance with the Land Act where it is demonstrated that a licence holder reasonably requires such land for the purposes of constructing or operating energy infrastruc- ture and has failed to acquire it by agreement after reasonable attempts to do so. To this end, the Energy (Electricity Licensing) Regulations require the applicant to state whether there will be a requirement for the compulsory acquisition of land to be given through the licence. The Land Act defines “compulsory acquisition” as the power of the State to deprive or acquire any title or other interest in land for a public pur-
pose, subject to the prompt payment of com- pensation. The three main pre-conditions that have to be met for compulsory acquisition to be justified by a state are that: • the expropriation has to be for a public pur- pose; • the government has to pay just compensa- tion; and • the acquiring authority has to abide by the principle of free, prior and informed consent. The Land Act provides the criteria for assessing value for compulsorily acquired freehold land with reference to the “land value index”, which it describes as an analytical representation showing the spatial distribution of land values in a given geographical area at a specific time. An increase in land value is to be disregarded for various reasons, including where it is occa- sioned by the intended use of development of the land to be acquired, if the improvement to the land was made within two years prior to the date of publication of the notice of intention to acquire the land or was done after the date of publication. With regard to leasehold land, the Land Act requires following matters to be taken into con- sideration: • the value of the land based on the unexpired term of the lease calculated on the basis of a land value index developed for that purpose in consultation with county governments and approved by the National Assembly and the Senate; • the value of developments or improvements on the land and any other cost incurred on the basis of the terms and conditions of the grant; and
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