Explainer: Why you could lose your land to Gov’t if MPs pass new Bill

The ongoing discourse on Finance Bill, 2024 has brought to the forefront a number of other issues that the public has expressed skepticism about, among them the proposal to amend the Land Act of 2012.

The Land Amendment Bill number 2 of 2023 proposes to insert a new clause which will force freehold land owners, property owners who enjoy free ownership for perpetuity and can use the land for any purposes, to pay land rent.

According to the Bill, the Land Act 2012 is amended by inserting the new section immediately after section 54 which states that the owner of any freehold land within the boundaries of any urban area or city shall pay an annual land levy equivalent to the land rent charged on a comparable leasehold property of the same size in the same zone.

Experts however opine that if enacted, the amendments, currently awaiting scheduling for second reading before Parliament, could see hundreds of Kenyans lose their property to the government.

According to Dr. Mwenda Makathimo, the Executive Director of Land Development and Governance Institute (LDGI), this translates to taxing Kenyans for owning land in urban areas.

"This means the government is charging you a tax for owning freehold land which is not government land. That is what this Act will bring. Land you might have inherited from your parents or land that you might have bought is freehold land," he told Citizen TV.

"Imposing this annual levy on land that is freehold property essentially has the effect of converting freehold property into leasehold property and by that, running the risk of dispossessing many Kenyans who may not afford to pay the levy and this includes indigenous people whose lands are ancestral," Eva Makori, Acting Regional Coordinator, International Land Coalition (ILC) Africa added.

The Bill, sponsored by Ruiru Member of Parliament Simon King’ara, could further give the Lands Cabinet Secretary power to acquire land compulsorily whenever the county or the national government determines that there is need to acquire a particular piece of land.

This, Dr. Makathimo believes, will be retrogressive in the long run, adding that the Bill is taking away the power from an independent commission and this could leave Kenyans counting losses should there be need for compulsory acquisitions.

"This brings in more risks; risks that can lead to arbitrary denial of property rights as provided under article 40; arbitrary denial of just compensation in case of compulsory acquisition for public purpose, so therefore the amendment is retrogressive," he said.

"It is returning Kenya to the framework where land was managed and held on behalf of the President before the 2010 Constitution."

"Any amendment should not be contrary to the current title or interest that the person holds. if the Constitution says you have a right to property then that should be protected. If the land law says you have a freehold interest and that interest carries an ultimate or superior title, where you are not paying annual land rate then that should be considered," Marjorie Kivuva, Partner. Tarra Agility Africa, added.

Despite claims by the government through National Assembly Majority Leader Kimani Ichung'wah that there is no such a Bill, Citizen TV has learned that the Bill has gone through all the steps at the National Assembly and is currently at the Senate.