[Source: The Standard]
The re-introduction of compulsory acquisition of land as an option in mitigating complexities associated with wayleaves breathes a new lease of life into the operations of industry players. Implementation of power transmission projects has faced myriad challenges in Kenya for many years.
The government – in a special gazette notice of February 22, 2019, gave the Energy Cabinet Secretary powers to apply to the government agency responsible for the management of the subject land to acquire it compulsorily under the relevant law.
Compulsory acquisition is the power of government to acquire private rights in land without the willing consent of its owner or occupant to benefit society. It is a power possessed in one form or another by governments of all modern nations. Article 6 (1) of the Act says the Government shall make good all damage done, and shall pay compensation to the owner of any tree or crops destroyed or damaged, in the execution of any power conferred by this Act.
In the event of disagreement as to the amount of the compensation to be paid or as to the person entitled to receive compensation, any person interested may apply to the Deputy County Commissioner, who shall award to the person entitled to receive compensation such as he thinks reasonable; and that award, subject to appeal to the County Commissioner, shall be final.
The Deputy County Commissioner will assist in identifying legitimate owners of land but must be guided by other players in the process to get real value of the land in question. Services of a certified land economist must be engaged to carry out competent valuation with utmost objectivity.
The award so far arrived at by the Deputy County Commissioner may be challenged before the County Commissioner whose decision shall then be final.
This will help unlock grey areas in wayleave processing and guarantee completion of projects. Previously, project implementing agencies have had to contend with long standing disputes and many times even court battles over land ownership and wayleaves acquisition.
Though it has come too late when many easements have been signed and colossal sums of money either paid out or due for release to projects affected persons – the move will ease pressure on the company and resources. As Kenya Electricity Transmission Company (Ketraco) we have a mandate to plan, construct, own, operate and maintain high voltage electricity transmission grid and regional power interconnectors.
In carrying out this mandate we have had to grapple with complexities associated with wayleaves acquisition and challenges in survey. This is because of existing pitfalls in the country’s land laws and many times protracted conflicts in ownership and land use along the wayleaves corridor.
Wayleaves allow for erection of power lines. Legislations providing for wayleaves in Kenya are anchored on the Wayleaves Act Cap 292 of the laws of Kenya. As much as wayleaves is fundamental in this utility provision, many challenges are encountered in the acquisition especially in the electric energy public utility sector.
For us, these challenges are made intricate due to nature of land tenure in Kenya, which confers unique rights on private property especially where there are no direct benefits accruing to the landowners. Strategic management tools that we have on our part put in place become important in acquisition of wayleaves from landowners.
Since the statutes upholds private property rights, yet to us (Ketraco) the realisation of the company’s objectives is paramount, then we must avoid situations where the landowners may in future renege on past concession for this right of way.This will be made possible if we undertake due processes such as formulation of long-term strategic plans and prudent implementation practices to embrace stakeholder interests.
It is important that we identify and thoroughly outline/document need and purpose necessitating wayleaves acquisition and the challenges posed in the process. They include open negotiations with the landowners, effective communication skills, adequate compensation rates and overall stakeholder participation. However, for comprehensiveness in formulating policy, recommendations are made for areas needing further research.
The writer is the Managing Director and CEO of Kenya Electricity Transmission Company (KETRACO)
[Source: The Standard]