KENYA: LAW RESTRICTING OWNERSHIP OF LAND IN KENYA BY FOREIGNERS DECLARED UNCONSTITUTIONAL

On 29 October 2021, the Environment and Land Court in Malindi declared an amendment to the Land Act restricting the ownership of land by non-Kenyan citizens as unconstitutional.

Summary of the Petition

The Land Laws (Amendment) Act, 2016 (the “Amendment Act”) sought to amend the provisions of existing statutes affecting land, including the Land Act, 2012, in order to align them with the Constitution.

Section 47 of the Amendment Act barred non-citizens from conducting any dealings in first and second row beach front property and land within twenty five kilometers (25km) from the inland national boundary of Kenya, without the prior written approval of the Cabinet Secretary in charge of the Ministry of Lands and Physical Planning.

The Mombasa Law Society and the Malindi Law Society (the “Petitioners”) filed constitutional petitions challenging the constitutionality of section 47 of the Amendment Act, among other provisions. The Petitioners argued that section 47 was discriminatory and denied landowners their constitutional rights to equitable access to land.

The Court’s decision

The Court was alive to the fact that section 47 of the Amendment Act placed a considerable limitation on the right to ownership of land by foreigners. While noting that indeed the Constitution allows for certain limitations to the right to ownership of land, the Court held that it was incumbent upon the State to demonstrate that the limitation was justifiable, and that the societal need for the restriction outweighed the individual’s right to enjoy the right or freedom to deal with their properties. Ultimately the Court held that the State did not fulfil their obligation to justify why this limitation was necessary and declared section 47 unconstitutional.

What this means for you

The declaration of unconstitutionality of section 47 of the Amendment Act means that non-citizens may enter into transactions involving first and second row beach front property and land within 25km from the inland national boundary of Kenya without requiring the Cabinet Secretary’s written consent.

The Judgment maintains the status quo of ownership of land by foreigners in the country before the passing of the Amendment Act. This means that non-citizens can own property in Kenya and enjoy all legal rights and protections that Kenyan citizens enjoy, subject to the Constitutional restriction that non-citizens can only own leasehold land for a term of not more than 99 years and the statutory restriction in the Land Control Act which bars non-citizens from owning or dealing in agricultural land.