kevinsavage
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- KCr.
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common concern for foreign investors looking to put down roots in Kenya is whether they can own and deal with property in the country. The simple answer is yes, non-citizens can own property in Kenya and enjoy all legal rights and protections that Kenyan citizens enjoy, however they are subject to restrictions with regard to the kind of tenure they can hold in land and are also prevented from owning or dealing with agricultural land. In Kunde Road Residents' Welfare Association Versus Deshun Properties Company Limited & Four Others (ELC PETITION NO. 1433 OF 2013) Justice Gacheru observed that,
“...The Constitution at Article 40 guarantees ownership of land in Kenya by any person. Granted, this provision is not absolute as it is subject to Article 65 thereof which restricts land to be held by noncitizens only as leasehold of a term of 99 years and no more. Article 65(2) of the Constitution, in my view, envisages a situation where non-citizens can enter into transactions for acquisition of interest in land that is freehold. Indeed there is no law that prohibits non-citizens from acquiring and owning freehold land, the Constitution however restricts that ownership to leasehold of a period of 99 years. It is therefore my finding that the transfer of the property in question, though the interest therein being freehold to the 1st Respondent being a non-citizen is not illegal as alleged. The bottom line is that the 1st Respondent has acquired 99 year leasehold interest...”
The restrictions on ownership of land by foreigners are contained in Kenya's Constitution and in the Land Control Act. We explore the restrictions contained in these two
“...The Constitution at Article 40 guarantees ownership of land in Kenya by any person. Granted, this provision is not absolute as it is subject to Article 65 thereof which restricts land to be held by noncitizens only as leasehold of a term of 99 years and no more. Article 65(2) of the Constitution, in my view, envisages a situation where non-citizens can enter into transactions for acquisition of interest in land that is freehold. Indeed there is no law that prohibits non-citizens from acquiring and owning freehold land, the Constitution however restricts that ownership to leasehold of a period of 99 years. It is therefore my finding that the transfer of the property in question, though the interest therein being freehold to the 1st Respondent being a non-citizen is not illegal as alleged. The bottom line is that the 1st Respondent has acquired 99 year leasehold interest...”
The restrictions on ownership of land by foreigners are contained in Kenya's Constitution and in the Land Control Act. We explore the restrictions contained in these two