Infrastructure way leaves, reserves and corridors

A presentation to

INSTITUTION OF ENGINEERS OF KENYA ‘‘Innovative Engineering Solutions for Counties Industrialization”

By Salome L. Munubi and Hosea Ndung’u 9 th May 2013 Tom Mboya Labour College, Kisumu 1

Infrastracture Wayleaves, Reserves and Corridors

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BRIEF INTRODUCTION INFRASTRUCTURE DEVELOPMENT THE NEW LAND LAWS PROPERTY RIGHTS WAYLEAVES AND EASMENTS LAND LAW-CONVEYANCY CHALLENGES IN MAINTENANCE OF WAYLWEAVE CORRIDORS THE NATIONAL LAND POLICY ISSUES IN THE REFORMS CONCLUSION

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  KETRACO is a state corporation incorporated on 2 2004 on Energy nd December, 2008 under the Company's Act, Cap 486 pursuant to the Sessional Paper No. 4 of Its mandate is to design, construct, operate and maintain new high voltage transmission line infrastructure Infrastracture Wayleaves, Reserves and Corridors 3

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1950’s to 2008: 3,300km KETRACO to do 8,316km • • • There will be need to develop: 3,715km of 400kV T/Lines 2,824km of 220kV T/ Lines 1,777km of 132kV T/ Lines The total arithmetic cost of the transmission system expansion cost is $1.55 billion. Infrastracture Wayleaves, Reserves and Corridors 5

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The capacity was 1,205MW in 2009 forecast to rise to 15,065MW in 2030. Candidate generation resources considered in the system expansion plan include geothermal, hydro, coal,

oil-fired and nuclear plants as well as imports from the neighbouring countries

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• • • • • • Indicates the total installed capacity will be obtained from: 27% from Geothermal 24% from Nuclear plants, 24% from Coal Plants 13% from Imports 6% from Hydro plants, 7% from MSD plants, Gas Turbine and Wind The net present value of the system expansion cost over the 20 year amounts to $10.15 million. Infrastracture Wayleaves, Reserves and Corridors 8

 Infrastructure development is a set of interconnected structural frameworks necessary for a robust economy  Social infrastructure development refers to basic social amenities such as schools and hospitals Infrastructure development determines a country or region's development level  Definition - "the physical components of interrelated systems providing commodities and services essential to enable, sustain, or enhance societal living conditions."  It refers to the technical structures supporting an economy such as roads, bridges, water supply, sewers, electrical grids and telecommunication infrastructure. Constitutional reference  Functionally, infrastructure facilitates production of goods and services and distribution of the finished products to markets. Infrastracture Wayleaves, Reserves and Corridors 9

 To achieve infrastructure development targets outlined in the vision 2030 using efficient and sustainable approaches within optimal project costing.

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Prescription for siting of convectional infrastructure development projects.

       Shortest length, hence least capital cost.

Accessibility for easy construction and maintenance Requirement of future loads or expansion plans Separation distance from parallel infrastructure facilities (power lines, pipelines, railway lines) Avoiding of protected and conservation areas (forests, wild life sanctuaries and cultural heritage).

Cost of securing and clearing right of way (ROW).

Maintaining technical and statutory distances from Airports, Airstrips and Helipads Infrastracture Wayleaves, Reserves and Corridors 11

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THE LAND ACT (No. 6 of 2012) (Repealed)

  The way leaves Act (Cap 292) The Land Acquisition Act (295) 

The Land Registration Act (No 3 of 2012) (Repealed)

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The Indian Transfer of Property Act 1882 The Government Lands Act (Cap 280) The Registration of Titles Act(Cap 281) The Land Titles Act (Cap 282) and; The Registered Land Act (cap 300) It is proposed to enact a Community Land Act 

The National Land Commission Act (No. 5 of 2012)

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NATIONAL VALUES AND GOVERNANCE POLICY (Art. 10 of the Constitution)

 The guiding principles of land Administration set out in section 4 of the Land Act, 2012 are in consonance with Art 10 specifically (2) (b) and (c) of the Constitution.

 Section 4 of the Land Act outlines the following guiding values and Principles: › Equitable access to land › Security of Land Rights › Elimination of gender discrimination › Transparency › Cost effective Administration › › Public participation Non-discrimination › Alternative Dispute Resolution mechanisms Infrastracture Wayleaves, Reserves and Corridors 13

LAND AS A RESOURCE

 Land is the basic element of economy synonymous with existence of people out of its usage.

     Social perspective . Economic perspective.

Political perspective Legal perspective Technological perspective   In Kenya land is the socio-economic platform of Land Reforms in the promulgated Constitution 2010

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Land for Co-ownership deemed as held by parties as joint tenants Infrastracture Wayleaves, Reserves and Corridors 14

 What is a Way leave and Easement?

Permanent Easements

 The alternative to a way leave is an easement (also known as a Deed of Grant of easement).

 This allows grantors to opt for a one-off capital sum, giving us the rights to keep our equipment in situ in perpetuity and to have access to the land for inspecting, maintaining, replacing or removing the equipment.

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Corridors Wayleaves Infrastracture Wayleaves, Reserves and Corridors Reserves 16

Outright purchase Negotiation by principle of good faith by both parties.

MISCHIEF:

 Abuse of discretion in compulsorily acquiring land  Inadequate compensation –The NLC as a remedy?

 Compulsory acquisition power remains vested in the State [Art. 40].

 Notices, compensation and Pre-emptive rights 107 to 133.

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o What is Land Law and Conveyance?

Challenges in Way leave Acquisition

    Leases about to expire Co-Ownership Tenancy in common. Capacity     Artificial Persons, Corporations, Co-operatives Charitable trustees (Churches, Schools) and personal representatives – perpetual succession Group representative entities e.g. Ranches Customary Land in New Constitutions Infrastracture Wayleaves, Reserves and Corridors 18

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Encroachment on

Pipeline – fire and deaths – Sinai case • Electricity lines –vandalism and economic sabotage • High-rise building near airports – Syokimau case • Dam riparian – Flooding • Roads- Illegal bus stops Infrastracture Wayleaves, Reserves and Corridors 19

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       Constitutional issues..

Land tenure issues.

Land use management issues.

Land administration issues;.

Principles of equity and equivalence

Equivalence Balance of interests Flexibility Infrastracture Wayleaves, Reserves and Corridors 26

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New concept – Geo-referencing

 What is geo-referencing?

 What is the effect of geo-referencing?

  Process of conveyance Acceptance of change in conveyance Infrastracture Wayleaves, Reserves and Corridors 28

CHAPTER FIVE ON LAND AND ENVIRONMENT Constitutional Articles That Informed The Content Of The New Land Laws

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Article 60 [Principles of land policy] Article 61 [Classification of land] Article 62 [Public land] Article 63 [Community land] Article 64 [Private land] Article 65 [Landholding by non-citizens] Article 66 [Regulation of land use and property] Article 67 [National Land Commission] Article 68 [Legislation on land]

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