Introduction
The Constitution of Kenya, 2010 guarantees the right to property (real estate) under Article 40. This fundamental right is envisaged in the constitution as follows: every person has the right either individually or in association with others to acquire and own property of any description and in any part of Kenya.
Legal Framework Governing Home Ownership in Kenya
The Constitution of Kenya,2010
This being the supreme law of the land, it provides for the legal framework in land transaction and land ownership. The Constitution has dedicated the entire chapter 5 on Land and Environment. This chapter provides for the classification and categories of land to wit public land, community land and private land. Under the category of private land, it can either be leasehold or freehold in terms of tenure.
It is also important to note that under article 65 the Constitution guarantee non-citizens the right to property and it states that “a person who is not a citizen may hold land on the basis of leasehold tenure only and any such lease, however granted, shall not exceed ninety-nine years. If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than ninety-nine-year lease, the provision shall be regarded as conferring on the person a ninety-nine-year leasehold interest, and no more.
Applicable statutes:
Land Act No. 6 of 2012
This Act together with the regulations thereunder consolidate all the different land systems in Kenya and provides for sustainable administration and management of land and land-based resources. This Act shall apply to all land declared as private, public or community land and it provides for the guiding values and principles of land management and administration and bind all State organs, State officers, public officers and all persons whenever any of them enacts, applies or interprets any provisions of the Act and make or implements public policy decisions relating to land.
Land Registration Act, 2012
This Act governs the registration of interests in all public, private and community land in Kenya.
Community Land Act, 2016
This act provides for the recognition, protection and registration of community land rights as well as management and administration of community land. The act be stores upon County governments the obligation to hold in trust all unregistered community land on behalf of the communities for which it is held.
National Land Commission Act, 2012
This act establishes the National Land Commission and task it with the responsibilities of managing public land on behalf of the national and county governments, advising the national government on a comprehensive programme for the registration of title in land throughout Kenya, to assess tax on land and premiums on immovable property in any area designated by law and to monitor and have oversight responsibilities over land use planning throughout the country among other obligations.
Sectional Properties Act, No. 21 of 2020
This Act provides for the division of buildings into units, ownership of common property of buildings and for the use and management of units and common property.
It is also worth noting that this Act applies only in respect of land held on freehold title or on a leasehold title where the unexpired residue of the term is not less than twenty-one years and there is an intention to confer ownership.
The Act covers the preparation and registration of Sectional Plans and Units in Kenya as well as establishment of a corporation to manage common areas within the developed apartments.
Physical and Land Use Planning Act No. 13 of 2019
This Act provides the framework on matters relating to land use development planning, development control, enforcement and dispute resolution. In a nut shell the Act envisages the principles, procedures and standards for the preparation and implementation of physical and land use development plans at the national, county, urban, rural and cities level and the administration and management of physical and land use planning in Kenya among other objectives.
Environmental Management and Coordination Act, 1999
This Act deals with environmental issues and establishes the National Environment Management Authority (NEMA). This Authority is responsible for exercising general supervision and co-ordination over all matters relating to the environment and is the principal instrument of Government in the implementation of all policies relating to the environment.
Environment and Land Court Act,2011
This Act establishes the Environment and Land Court (ELC) for purposes of facilitating the just, expeditious, proportionate and accessible resolution of disputes relating to land ownership and title.
Land Control Act CAP 302
This Act establishes the Land Control Board for every land control area and task it with the responsibility of overseeing and issuing consent in transactions touching on agricultural land.
Stamp Duty Act (Cap 480)
The Act provides for the levying and managing of stamp duties. It is under this act where stamp duty rate of 4% on transfer of properties within municipalities (cities and major towns) and 2% on transfer of properties outside municipalities (upcountry) are provided.
Income Tax Act (Cap 470)
This Act provides the legal framework for levying and computation of capital gains tax on transfer of property.
The Value Added Tax, 2013
The Act provides for the legal framework for levying of value added tax on the sale, leasing, renting of commercial properties.
Conclusion
The above stated legislations are the key statutes any individual intending to purchase land or apartment needs to understand before embarking on the transaction.
For information contact us on info@mmsadvocates.co.ke or +254748998904