Kindiki assures residents of compensation ahead of Sh7b Nithi Bridge project

The Kenyan government's KSh 7 billion Nithi Bridge realignment project has brought to the fore critical aspects of compulsory land acquisition and compensation under Kenyan law. Deputy President Kithure Kindiki's assurance of compensation to affected landowners underscores the constitutional and statutory obligations governing such acquisitions. This article examines the legal framework, primarily the Constitution of Kenya, 2010, the Land Act, 2012, and the National Land Commission Act, 2012, which mandate prompt and just compensation for private land acquired for public purposes. It also delves into the National Land Commission's role, the procedural requirements, and recent judicial pronouncements, including the controversial 'early entry' provisions, highlighting the delicate balance between public interest infrastructure development and the protection of individual property rights.

The proposed KSh 7 billion Nithi Bridge realignment project in Kenya, aimed at enhancing road safety and improving connectivity along the Makutano-Embu-Meru (A9) Road, has necessitated the compulsory acquisition of private land. This development has placed the spotlight on the intricate legal framework governing land acquisition and compensation in Kenya, a matter of significant public and legal interest. Deputy President Kithure Kindiki's recent assurance to residents of Nithi regarding compensation for their land signals the government's commitment to adhere to the established legal procedures, even as the project moves forward.

This article provides a comprehensive overview of the legal principles and procedural requirements for compulsory land acquisition in Kenya, with a specific focus on the Nithi Bridge project. It will explore the constitutional underpinnings of property rights, the statutory mechanisms for acquisition and compensation, the role of the National Land Commission (NLC), and the implications for affected landowners. The discussion aims to clarify the rights and obligations of both the State and private citizens in such large-scale infrastructure developments, offering insights for legal practitioners navigating this complex area of law.

The power of the State to compulsorily acquire private land for public purposes, often referred to as eminent domain, is a fundamental aspect of governance, balanced by constitutional safeguards for property owners. In Kenya, this power is enshrined in Article 40 of the Constitution of Kenya, 2010, which protects the right to property but permits its deprivation if it is for a public purpose or in the public interest, and is carried out in accordance with the Constitution and any Act of Parliament. Crucially, Article 40(3) mandates prompt payment in full of just compensation to the affected person and guarantees access to a court of law.

The operationalisation of these constitutional principles is primarily detailed in the Land Act, 2012 (Act No. 6 of 2012), particularly Part VIII (Sections 107 to 133), and the National Land Commission Act, 2012 (Act No. 5 of 2012). The National Land Commission (NLC) is the independent constitutional body mandated to manage public land on behalf of national and county governments and to administer the compulsory acquisition process. Its functions include initiating investigations into land injustices, recommending national land policy, and ensuring sustainable land management. The Land Act further elaborates on the step-by-step procedure, from the initial notice of intention to acquire to the assessment and payment of compensation, ensuring transparency and due process.

The compulsory acquisition process, as outlined in the Land Act, 2012, begins with a formal request from the acquiring authority (e.g., Kenya National Highways Authority for the Nithi Bridge project) to the NLC, specifying the public purpose. The NLC then publishes a notice of intention to acquire in the Kenya Gazette and a newspaper of wide national circulation, informing all interested parties. This is followed by preliminary inquiries to ascertain ownership and interests, and subsequently, compensation hearings. The NLC has recently published names of over 100 landowners affected by the Nithi Bridge project and invited them for compensation hearings, signaling adherence to this process.

A significant point of contention and legal scrutiny often arises concerning the promptness and justness of compensation. The Land Act and the Land (Assessment of Just Compensation) Rules, 2017, stipulate that compensation should reflect the market value of the land at the time of acquisition, including any developments, damages, disturbances, and reasonable costs incurred. However, the Nithi Bridge project has introduced the application of Section 120(2) of the Land Act, which permits the NLC to take early possession of land 15 days after the notice of intention to acquire, even before compensation is fully paid, in cases of urgent necessity where delay would be contrary to public interest. This provision, while facilitating critical infrastructure projects, has raised concerns among some residents who expected full compensation before surrendering their land, as indicated by President Ruto's earlier assurances.

Judicial pronouncements have consistently emphasized strict adherence to the procedural requirements of compulsory acquisition. The High Court in *Patrick Musimba v National Land Commission & 4 Others [2016] eKLR* underscored the overarching right to prompt and just compensation and the importance of following due process. More recently, the Court of Appeal, in a landmark ruling concerning the Ruaraka Land Case (July 2026), declared a KSh 1.5 billion compensation payment illegal, null, and void, on the grounds that the government cannot compulsorily acquire land it already owns. This ruling reinforces the principle that compulsory acquisition must be for land genuinely required for public use and not already vested in the State, providing a critical check on the NLC's powers and safeguarding against fraudulent claims. The Nithi Bridge project, therefore, operates within a legal landscape that demands both procedural correctness and substantive fairness in compensation.

The Nithi Bridge project exemplifies the ongoing tension between the State's imperative for infrastructure development and the constitutional protection of individual property rights. While the government's commitment to compensating affected landowners is a positive step, the invocation of 'early entry' provisions under Section 120(2) of the Land Act, 2012, highlights the practical challenges and potential for dispute in urgent public projects. Practitioners must advise clients on their rights to prompt and just compensation, including the market value of land and improvements, and the right to challenge inadequate awards through the Environment and Land Court.

Moving forward, it is crucial for the NLC and acquiring authorities to ensure maximum transparency and public participation throughout the acquisition process, particularly in valuation and disbursement of funds. The recent Ruaraka Land Case serves as a stark reminder that any deviation from legal principles, such as attempting to acquire land already owned by the State, will be met with judicial scrutiny. Legal professionals should remain vigilant in monitoring the implementation of these projects, advocating for their clients' rights, and ensuring that the principles of justice and fairness, as enshrined in the Constitution and the Land Act, are upheld in all compulsory land acquisition proceedings.