How to Challenge Inadequate Compulsory Acquisition Compensation in Kenya

The Kenya Constitution requires that compulsory acquisition compensation be "just and full." In practice, the National Land Commission's compensation assessments are often below market value. Affected landowners have legal rights to challenge inadequate compensation.

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The Constitutional Standard

Article 40(3) of the Kenya Constitution provides that the state must pay "just compensation" for any compulsory acquisition. Article 40(7) adds that the compensation must be "prompt, just, and full."

"Full compensation" has been interpreted by Kenya courts to include:

The market value of the land at the date of acquisition. Solatium — an additional percentage (typically 15% in Kenya practice) for the compulsory nature of the acquisition. Loss of improvements on the land (crops, buildings, structures). Any consequential losses directly attributable to the acquisition.

A compensation award that fails to include any of these components may be below the constitutional standard.

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The Inquiry Process

When the NLC initiates compulsory acquisition:

Section 112 of the Land Act 2012 requires the NLC to conduct a formal inquiry before completing the acquisition.

At the inquiry:

You can present your own valuation. You can challenge the NLC's assessment. You can object to the acquisition itself on specific grounds.

Missing the inquiry is costly. Appearing at the inquiry and submitting your evidence positions you for a higher award and for a challenge if the award is inadequate.

If you are not notified of the inquiry (as sometimes happens), you can request to be heard late, provided you act quickly.

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Grounds for Challenging the Compensation Award

The valuation is based on an incorrect date. Compensation is assessed at market value as of the acquisition date. If the NLC uses an earlier valuation, the amount is lower than it should be.

The valuation undervalues the land. An ISK-registered valuer's report showing a higher market value provides evidence for a challenge.

Improvements were not included. Crops, buildings, and other improvements on the land should be separately valued.

Consequential losses were excluded. If the acquisition requires you to move a business, disrupts access to adjacent land, or causes other measurable losses, these are potentially compensable.

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The Challenge Process

Step 1: File an objection with the NLC.

If you believe the compensation award is inadequate, file a formal objection with the NLC. Include your own professional valuation and the specific grounds of your objection.

Step 2: ELC reference.

If the NLC does not increase the award satisfactorily, the matter can be referred to the Environment and Land Court. Section 130 of the Land Act provides for the court to assess compensation independently.

The court can award more than the NLC's assessment if it finds the NLC's valuation was inadequate.

Step 3: The award does not need to be accepted to be challenged.

Accepting a partial payment on account does not necessarily waive your right to challenge the full compensation amount. However, confirm this position with your advocate — the documentation of any acceptance matters.

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What Documentation to Prepare

Your own professional valuation from an ISK-registered valuer, specifically addressing:

Market value as of the acquisition date. Improvements on the land and their value. Any access or consequential loss impact.

Your title deed and proof of ownership.

Records of any land rates, improvements, or development investments.

Records of any income from the land (rental, agricultural productivity).

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This article is for general information only. It does not constitute legal advice. If your land is being compulsorily acquired, consult a qualified Kenya advocate immediately.