RESTRICTION OF OWNERSHIP OF LAND IN KENYA BY FOREIGNERS DECLARED UNCONSTITIONAL

The Land Control Act Cap 302restricts the ownership by non-citizens of agricultural land or land within land control areas. This land, in general terms, is land that is situated outside a municipality, a township, or a market or land that the Minister of Lands designates as being controlled and subject to the protections in the act. The Act in Section 9 as read with Section 6 provides that any dealing in agricultural land or controlled land the purported effect of which is to sell, transfer, lease, charge, partition or exchange land with a non-citizen is void for all intents and purposes. A non-citizen may however have been exempted from the provisions of this Act by the President of Kenya.

The main issue in relation to foreigners owning land in Kenya was stated in the case of Malindi Law Society v Attorney General & Another (2021) eKLR as, ‘Whether Section 47 of the Land Laws (Amendment) Act unconstitutionally limits the right of the Petitioners and is hence unconstitutional?’

Section 47 of the Land Laws (Amendment) Act defines an ineligible person as being one who is not a Kenyan citizen; or the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such government or political subdivision; or a body corporate which has non-citizens as shareholders. Section 47 amended Section 12 of the Land Act and introduced the concept of ‘controlled land’ to mean land in Kenya which is; Within a zone 25 kilometres from the inland boundary of Kenya; within the 1st and 2nd row from the high water mark of the Indian Ocean and any other land as may be declared controlled under any statute.

No transaction is allowed in controlled land by ineligible persons, including the transfer for consideration may be dealt without the prior approval of the Cabinet Secretary. It was the courts view that Section 47 has infringed on the ownership rights to property.

The rationale of the court was that the exercise of the rights to property would be limited to a great extent within the definition of controlled land. It was the court’s view that it was incumbent upon the state to demonstrate a justifiable need to limit the right, and that the societal need outweighs the individual right to deal with properties. The court expressed its unsatisfaction of the material presented in relation to reasonable justification to warrant the provision and thus Section 47 of the Land Laws (Amendment) Act was declared unconstitutional and void.

The court made a declaration that the Amendments sought to be introduced under Section 12 of the Land Act by Section 47 of the Land Laws (Amendment) Act are unconstitutional, null and void. The Petition partly succeeded and partly failed. This is because there was a declaration by the court that Sections 38, 48, 61 and 98 of the Land Laws (Amendment) Act 2016 that respectively relate to historical land injustice, notification of the lessee before the expiration of the tenure are valid. Also, selling or possession of land under informal charge and the occupation of private, community or public land did not violate any Constitutional Article and that they were valid.

In conclusion, a declaration by the court that Section 47 of the Land Laws (Amendment) Act means that non-citizens may enter into transactions that involve first row and second row beach property as well as land within 25 kilometres from the inland national boundary of Kenya without the requirement of the Cabinet Secretary’s written consent.

The judgement however, maintained the current status that non-citizens can own only own leasehold land for a term that does not exceed 99 years. It also maintained the status that non-citizens cannot own or deal in agricultural land.

Article by: Wendy KuyohFor more information on foreigners owning land in Kenya and any other land related transactions, feel free to reach out to info@mmsadvocates.co.ke

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