KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Asssociates
3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities The Energy Act provides that a person may develop energy infrastructure on, through, over or under pub- lic, community or private land, subject to compliance with applicable laws governing land use, planning and environmental protection. This establishes the legal foundation for siting energy projects across diverse land categories. An applicant for a generation licence must demon- strate legal rights to the project land, through either ownership or a valid long-term lease or licence. This requirement extends to distributed generation, including solar rooftop projects, where developers must secure access rights from the property owner if they do not own the underlying asset. The Act further recognises the role of the national and county gov- ernments in facilitating land acquisition, reflecting a policy commitment to enabling energy infrastructure development. The acquisition of privately owned land is generally based on a willing buyer–willing seller or lessor–lessee arrangement, with compensation negotiated between parties based on market value and agreed commercial terms. However, the Energy Act imposes procedural requirements, including obtaining prior consent from landowners. Where a landowner cannot be traced, the developer must issue public notices and local announcements, and where necessary deposit com- pensation into a designated fund. Where voluntary acquisition is unsuccessful, the Act empowers the Cabinet Secretary to initiate compulso- ry acquisition in accordance with the Land Act. Com- pulsory acquisition is defined as the State’s power as the acquisition of land for a public purpose, subject to key conditions: • the acquisition must serve a public purpose; • it must involve prompt and just compensation; and • it must comply with procedural fairness, including consultation and due process.
These principles are reinforced by Article 40 of the Constitution, which protects property rights while allowing lawful acquisition for public benefit. The Land Act provides detailed valuation principles. For freehold land, compensation is guided by a land value index, reflecting spatial land values at a given time, while disregarding artificial value increases linked to the intended project or recent speculative improve- ments. For leasehold land, compensation considers the remaining lease term, the value of improvements, and other costs incurred under the lease terms. The Act also allows consideration of additional criteria pre- scribed by regulation. Importantly, constitutional protections extend to occu- pants without formal title, ensuring that individuals in good faith may receive compensation even where they lack registered ownership. This reflects a broader commitment to equitable treatment in land acquisition processes. Further safeguards are provided under the Prevention, Protection and Assistance to Internally Displaced Per- sons and Affected Communities Act, which requires that displacement resulting from development pro- jects be avoided where possible; where unavoidable, it should be justified by compelling public interest and carried out in accordance with legal standards and international obligations, including the Great Lakes Protocol. Planning considerations are also governed by the Physical and Land Use Planning (Development Con- trol for Strategic National Projects) Regulations, which allow for the reservation of public land for strategic projects within national or county spatial plans. Compensation for compulsorily acquired land may take various forms, including: • the allocation of alternative land of equivalent value; • a monetary payment, either lump sum or instal- ments; • the issuance of government bonds; • the grant of development rights; • the allocation of equity shares in public entities; or
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