Review wayleave law to spur investment

Here are suggestions on how to avoid conflicts and wayleave disputes between county governments and utilities.

First, let us tear that anachronistic law known as the Wayleave Act Cap 292. Our wayleave laws- especially as applied by county governments and municipalities- are archaic, irrational, and anti- private enterprise.

Recently, the CEO of the Communications Authority, Mr David Mugonyi, lamented publicly before a parliamentary committee that county governments were charging expensive wayleave charges for laying fibre optic cables thereby impeding ICT penetration in Kenya.

In Mombasa, the county government is in court with ICT company Jamii Telecoms in a dispute where the regional authority is demanding Sh79 million in arrears for wayleave fees. Intriguingly the dispute includes claims for wayleave not in use.

We must not forget that because the wayleave levy is a pass-through cost for utilities, it is the consumer that ultimately picks the tab in terms of higher tariffs.

It amounts to double taxation. Yet the more pertinent question to ask is the following: what services do consumers get in return for having to carry the burden of wayleave levies?

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Clearly' the wayleave levy is just but an impost that only serves to oil and maintain the huge and inefficient bureaucracies we have created that go by the name county governments.

Indeed' county governments are evolving into large inefficient bureaucracies maintained through predatory taxation.

Just about the only thing happening in this space is the phenomenon of forever expanding workforces.

Take the case of Nairobi County and this is information you can get from the latest report by the Auditor General.

In 2020; Nairobi seconded a total of 5,934 staff to the defunct Nairobi Metropolitan Services (NMS). When the term of NMS ended; it handed back 8,433 staff to the bureaucracy. In the last financial year, the county government recruited 3,834 staff without advertising the jobs.

There is another interesting detail I spotted from the report of the Auditor General. A review of the county’s payroll as at June 2024 revealed that the devolved unit had 338 cars against a fleet of cars of 483 meaning that 145 vehicles did not have drivers.

The reason wayleave laws were introduced was to compensate private individuals in situations where projects lead to physical displacement; loss of shelter; loss of assets and loss of income.

The fees were not introduced to defray the costs of bloated bureaucracies nor to fund the expanding waistlines of governors, MCAs and the myriads of officers and bureaucrats with fancy titles- county directors, chief officers, chief of staff and political adviser.

The Wayleave regime must be reviewed urgently because the present framework does not support investment. One of the largest components of the cost of constructing the standard gauge railway was acquisition of wayleave.

The reason neighbouring Uganda would not allow its crude pipeline to pass through Kenya to the Port of Lamu was the cost of wayleave.

The power transmission company Ketraco has been maintaining budgets running into billions of shillings for wayleave.

In 2020, the cabinet decided that the route of the extension of the SGR from Naivasha would go through Bomet-Kisumu- Yala- Bumula and end up at Malaba. It is an open secret that greedy elites rushed to buy land along the route angling to reap huge rents from wayleave payments.

The most disquieting part of that raid by the Nairobi County government on Kenya Power offices was the barbarous manner in which it was executed. Even if it were the case that City Hall was right in demanding wayleave levies the means should be lawful.

While it is true that no one is above the law when it comes to paying user charges, levies and fees it is equally true that as long as the 2010 Constitution still lives every individual or institution in this country is above the type of terrorism meted on Monday by Nairobi County enforcement staff on Kenya Power employees.

The current wayleave regime imperils us all.

The writer is a former managing editor at The EastAfrican