Introduction

The recent announcement by East African Portland Cement (EAPC Plc) regarding the regularization and sale of some of its land has sparked a legal debate that goes beyond mere property transactions. EAPC’s decision to regularize and sell its land raises crucial questions about the role of private property rights in Kenya’s development trajectory and the government’s commitment to balancing these rights with the public good. This article delves into the intricate landscape of property rights, public interests, and legal principles within the Kenyan context.

EAPC PLC Case and Government’s Rationale

The EAPC PLC case revolves around the company’s intent to regularize and sell its land, which has broader implications for both the public and the local community. The company’s actions trigger discussions on property rights, eminent domain, and the need to balance the private ownership of land with the greater public good. This context underscores the significance of the legal and ethical considerations surrounding the case.

Legal Principles and Obligations

Under Kenyan law, before initiating any land regularization or sale process, the landowner or relevant authority must publicly announce their intentions. This notification serves to inform interested parties and provide them the opportunity to assert their claims.

The Kenyan Constitution protects the right to property. However, the Constitution also allows the government to acquire private property for public purposes, upon payment of just compensation. This power is known as eminent domain.

The Land Act, 2012, establishes several procedures and safeguards that must be followed in the event that the government wishes to acquire private property for public purposes. For example, the government must first notify the public of its intention to acquire the land. The government must also provide compensation to the landowners and occupiers of the land.

Eminent Domain and Its Application in the EAPC PLC Case

Eminent domain is a legal concept that grants the government the power to acquire private property for public use, provided just compensation is provided to the property owner. In the case of EAPC PLC, the government’s intention to acquire the land constitutes an exercise of eminent domain. To proceed legally, the government must establish the land’s necessity for a public purpose and its willingness to provide fair compensation to EAPC. This underscores the critical role of legality and fairness in land acquisition.

EAPC PLC has fulfilled the legal requirement of public notification by issuing a notice on October 11, 2023. The notice provides details of the process and the timeframe for filing claims. Interested parties have been granted a two-week window, from October 11 to 24, 2023, to file their claims. This process allows individuals to assert their rights and interests in the land.

In the event that unclaimed portions remain after the notice period, EAPC PLC will competitively offer these portions to the general public. This step aligns with the legal principle of ensuring that the sale process is transparent and fair. It is worth noting that on October 9, 2023, a Machakos High Court declared EAPC PLC the legitimate owner of the land in question, emphasizing that those who had settled on it had done so illegally. This court declaration is a significant legal step that supports EAPC PLC’s actions

The Role of the National Land Commission (NLC)

The National Land Commission (NLC) plays a vital role in land regularization and sale processes. Established under the Land Act of 2012, the NLC is tasked with resolving land disputes and overseeing government land management policies. In any government acquisition of land from EAPC, the NLC is expected to contribute its expertise and oversight, ensuring that the process adheres to legal and ethical standards, thereby safeguarding the rights of all parties involved.

The Role of the Courts and the Government

The courts play a vital role in protecting property rights. In the event that a person believes that their property rights have been violated, they can file a lawsuit in court. The courts have the power to issue orders to protect property rights and to award compensation to victims of property rights violations. The government also plays an important role in mediating land disputes and protecting property rights. The government can establish land tribunals and other mechanisms to resolve land disputes peacefully. The government can also provide legal assistance to people who cannot afford to hire lawyers to represent them in land disputes.

EPZs and Government Rationale for Expansion

Export Processing Zones (EPZs) are designated areas where companies can import raw materials and components duty-free and tax-free while exporting finished goods without tax or duty obligations. In the case of the government’s decision to expand the EPZ at the expense of Portland Cement’s land, the rationale primarily revolves around attracting foreign investment, creating jobs, boosting export earnings, and contributing to Kenya’s economic growth.

Conclusion

The EAPC PLC case highlights the complex and nuanced relationship between property rights, public interest, and legal principles in Kenya. To strike a balance between these competing interests, Kenya must adopt a nuanced approach that considers the specific circumstances of each

case. This approach should be grounded in a clear understanding of the legal principles governing land acquisition and use, as well as the potential social, economic, and environmental implications of land-related decisions.

In the case of the EAPC PLC case, the government must carefully weigh the potential benefits of expanding the EPZ against the potential costs to the company and the local community. The government must also ensure that the land acquisition process is conducted in a fair and transparent manner and that the company and the affected communities are adequately compensated for any losses they may incur. Balancing property rights, public interest, and legal principles is essential for promoting sustainable and equitable development in Kenya.