Tatu City, county row shines spotlight on planning laws

The raging standoff between the Kiambu County Government and Tatu City over stalled approval of a development masterplan has raised questions on the current legal structure around private entities surrendering land for public use. 

Stakeholders have poked holes in the demands by the Kimani Wamatangi-led devolved unit, saying the buck stops with the Lands Cabinet Secretary.

The status of Tatu City as a Special Economic Zone (SEZ) also adds to the complexity of the matter.

While Tatu City through its Chief Operating Officer Preston Mendenhall insists that the demand to cede 10 per cent of its land to the county government for the building of public amenities and the governor’s residence has no legal or constitutional basis, Mr Wamatangi cites Sections 55 and 58 of the Physical and Land Use Planning Act, 2019 and 2021, and subsequent regulations.

“The law mandates private developers allocate land for public facilities such as schools, hospitals, fire stations, recreational areas, police stations, playgrounds and other public utilities. That is what we are demanding from Tatu City,” said Wamatangi in a recent statement.

The fight between the Kiambu County Government and Tatu City has raised several issues, including what amounts to public use of surrendered land, and does the governor’s residence fall in this category? It also raises the question of just how special are SEZs and what is the correct percentage or acreage of land that should be ceded for public use. Also, does the land to be ceded extend to private developers, and is the current legislation explicit and adequate on land to be surrendered?

The Architectural Association of Kenya (AAK) has weighed in on the matter, noting that the issue of surrender has been misused and abused in the planning permitting process not only in Kiambu County but also in other devolved units.

“The lack of clear guidelines on what constitutes surrender and how it should be carried out remains a particularly grey area open to abuse by corrupt and overzealous county officials,” said AAK President Florence Nyole on the matter after Tatu City, a 5000-acre mixed-use development within Kiambu County, accused the county government of extortion over the pending approval of its masterplan.

Ms Nyole argues that the 10 per cent surrender requested by the Kiambu County Government has no legal backing in the current policy and legislative framework. She described this demand as an “abuse and unfortunate.”

She said any attempts by the county to demand and relentlessly pursue the surrender of land by the developer leaves the county government exposed and defenceless to accusations of corruption and abuse of office.

“The Physical and Land Use Planning Act, 2019 provides for the planning of land and the public lands identified through such planning to be secured by registering them under the county treasury. Any other attempt to extort, coerce, or negotiate any surrender outside of such established norms is, therefore, illegal,” she said. Ms Nyole said the county government is notorious for delaying the approval process for developers, referencing the discontinuing of the Electronic Development Management System by the current administration on claims of corrupted data and system errors. The Kenya Institute of Planners (KIP), for its part, opines that the approval of Tatu City’s development masterplan is under the mandate of the Lands Cabinet Secretary. This is on the premise that Tatu City is a SEZ via a Gazette notice of May 23, 2017, which is still in force.

“However, in the approval of such a plan the Cabinet Secretary is obligated to seek comments from the County Government of Kiambu where Tatu City is located,” said KIP President Fawcett Komollo.

In a letter dated July 12, 2024, addressed to the Principal Secretary in the State Department for Investment Promotion Abubakar Hassan, Tatu City COO, Mr Mendenhall, maintained that the Kiambu County Government has no legal basis to request for surrender of the parcels free of charge. Mr Mendenhall states that the said land under Tatu City is private land and such, cannot be surrendered for free as the county demands. 

“Private land ownership is protected. The State and the County Government by extension cannot deprive ownership unless it is done through a compulsory acquisition process in accordance with the law. Therefore, the fundamental right to own land is protected at all times,” he said in the letter. 

Institution of Surveyors of Kenya (ISK) President Eric Nyadimo said in a statement dated July 18, 2024 that the request by the county government to have Tatu City cede a portion of the land for a governor’s residence is un-procedural and outside of planning approval provisions.

“The Land Act is clear that in the event that land is required by the government for a public purpose, then the compulsory acquisition process must follow, meaning that the land must first be acquired through an elaborate just process with equitable compensation to the landowner,” he said.