Those keen may have taken note of a public notice by the Director of Physical Planning on the Kenyatta University land in August. It announced the completion of the preparation of a local physical and land use development plan for the public university’s land seeking to leave the institution with about 550 acres.
About 147 acres would go towards the Kenyatta University Teaching, Referral and Research Hospital, 30 acres to the World Health Organisation offices, 15 acres to the Ministry of Health and 10 acres to the Africa Centres for Disease Control and Prevention. The balance, 185 acres, would go to the nearby Kamae Informal Settlement Group.
This matter burst into the public domain during the polarising campaigns for the August 9 General Election. The Law Society of Kenya (LSK) subsequently petitioned the Environment and Land Court for orders blocking the subdivision, alienation and/or interference with the ownership and possession of the university land.
The court delivered a ruling on August 12, dismissing the application. The 56-page ruling and the proposed re-planning of the university land provide useful information and lessons.
The Constitution defines public land to include land that is lawfully held, used or occupied by any State organ, except where such land is under a private lease. Importantly, the Land Act provides that public land identified for allocation by the National Land Commission should not include land which is reserved for security, education, research and other strategic public uses.
This essentially implies that land under State organs such as universities is not available for allocation by the land commission on behalf of the national or county governments, unless such organs voluntarily surrender the land. Therefore, any orders from the national or county governments calling for the allocation of public land under any university would be ultra vires.
However, the Universities Act vests the university council with powers to deal with its immovable property as the institution may determine from time to time. The Kenyatta University Charter accordingly gives the council powers to deal with its land, including its disposal, in the interest of the university and the public.
The court noted that the university council met on July 15 and approved the replanning of the university land for reallocation, arguing that this would result in the establishment of auxiliary institutions and services that would augment the university’s academic and research programmes.
It further noted that the exercise would secure the university’s collegial enjoyment of its property with the neighbouring Kamae Settlement. With such evidence, and without controverting evidence that the university council was in office illegally, the court dismissed the LSK petition.
Key lesson here? State organs entrusted to make decisions over public land and assets must beware of their latitude, and do so in the best interests of their institutions and public.
The writer is a consultant on land governance.