KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
• any other criteria which the Commission may prescribe in Regulations in consultation with the Cabinet Secretary and county govern- ments, and with the approval of the National Assembly and the Senate. It is important to note the obligation under Arti- cle 40 of the Constitution, which recognises the rights of untenured occupants and records that provision may be made for compensation to be paid to occupants in good faith of land acquired even where they do not hold title to the land. Another key piece of legislation is the Preven- tion, Protection and Assistance to Internally Dis- placed Persons and Affected Communities Act, which requires the government and any other organisation to prevent internal displacement, including in situations resulting from develop- ment projects. Any displacement and relocation due to development projects is only considered lawful if it is justified by compelling and overrid- ing public interests and is conducted in accord- ance with the Act and the Great Lakes Protocol on Protection and Assistance to Internally Dis- placed Persons, of which Kenya is a signatory. Finally, the Physical and Land Use Planning (Development Control for Strategic National Pro- jects) Regulations provide for instances where public land that is required for strategic national projects by a public body may be reserved. In these circumstances, the reservation of public land is required to be undertaken during or after the preparation of a national physical land use development plan or county physical land use development plan. Compensation to a landowner for compulsorily acquired land can take the following forms:
• the allocation of an alternative parcel of land of equivalent value and comparable geo- graphical location and land use to the land compulsorily acquired; • a monetary payment, either in lump sum or in instalments spread over a period of not more than one year; • the issuance of a government bond; • the grant or transfer of development rights as may be prescribed; • equity shares in a government-owned entity; or • any other lawful compensation. With regards to investments on community land, the provisions of the Community Land Act, 2016 require an agreement to be entered into between the community and the investor negotiated through a free, open consultative process, which shall contain provisions on the obligation to: • conduct an environmental, social, cultural and economic impact assessment; • undertake stakeholder consultations and involve the community; • pay compensation and royalties to the com- munity; and • re-habilitate the land upon completion or abandonment of the project. No agreement between an investor and the community is valid unless it is approved by two thirds of adult members at a community assem- bly meeting called to consider the offer and at which a quorum of two thirds of the adult mem- bers of that community is represented. 3.5 Decommissioning a Generation Facility The Energy Act requires the removal of all infra- structure and the rehabilitation of the land. All decommissioning activities must meet any good
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