Land Ownership and Purchase Rights for Foreigners in Kenya

The exponential growth in the real estate market in Kenya has led to its emergence as one of the most attractive investment avenues. This opportunity has drawn the attention of both citizens and foreigners seeking to benefit from the promise of consistently high returns. Over recent years, an increased number of foreign nationals have expressed interest in buying land in Kenya, either for residence or investment purposes. A common question arises: Can foreigners buy land in Kenya, and what restrictions apply? This article answers this question in detail by exploring the legal provisions of land ownership in Kenya and how foreigners can successfully navigate land purchase and ownership in the country.

Legal Framework for Foreign Land Ownership in Kenya

Before the promulgation of the Kenyan 2010 Constitution, there was no legal clarity on the rights foreign nationals had in land purchase and ownership. This lack of regulation led to the misconception that foreigners could not legally own land in Kenya. As a result, many foreigners resorted to dubious means of land acquisition, such as using third-party nominees and proxies. Predictably, these backdoor methods often led to fraud and disputes during the process of buying land in Kenya.

The 2010 Constitution resolved these issues, providing a clear legal framework for land ownership by foreigners. According to Article 40 of the current Kenyan Constitution, all persons—Kenyan citizens and foreigners alike—have the legal right to land ownership in any part of the country. However, foreign land ownership is subject to specific limitations outlined in Article 65 (1) of the Constitution, the National Land Commission Act, the Registration Act No. 3 of 2012, and the Land Act No. 6 of 2012.

Key Restrictions on Foreign Land Ownership

Leasehold Tenure

Under Article 65 (1) of the Constitution, foreigners can only hold land in Kenya through a leasehold arrangement that does not exceed 99 years. Upon the expiry of this lease agreement, Section 12(7) of the Land Act specifies that the ownership of the land reverts to the Kenyan government. While foreigners can apply for a lease renewal or extension, there is no automatic renewal, unlike the provisions for Kenyan citizens.

Trust Arrangements and Freehold Land

Foreigners cannot hold freehold property under a trust arrangement. If property is held under a trust, the beneficial interest must belong to a Kenyan citizen, and the land will be regarded as being owned by the citizen.

Agricultural Land

Ownership of agricultural land by foreigners is heavily restricted under the Land Control Act. Foreign nationals can only own agricultural land by:

1. Acquiring shares in a public company that owns agricultural land.
2. Receiving an exemption granted by the President under Section 24 of the Act.

Without meeting these conditions, foreigners are prohibited from leasing, charging, exchanging, or selling agricultural or controlled land.

What is Controlled Land?

Controlled land refers to specific areas with strategic importance, including:

1. Land within the first and second row from the high-water mark of the Indian Ocean.
2. Land within a 25-kilometer zone from Kenya’s inland national boundary.
3. Other areas declared as controlled land under Kenyan law.

Foreign nationals, foreign governments, and corporate entities with foreign shareholders are not permitted to own land in controlled areas.

Steps for Buying Land in Kenya as a Foreigner

To ensure a smooth process of buying land in Kenya, foreigners should:

1. Engage the services of a qualified lawyer to navigate the legal requirements.
2. Conduct due diligence to verify the land’s ownership and ensure compliance with local laws.
3. Obtain the necessary approvals from relevant authorities, especially for agricultural or controlled land.
4. Register the leasehold agreement as required by Kenyan law.

Conclusion

Foreigners have the legal right to own land in Kenya, but this is limited to leasehold agreements lasting up to 99 years. Upon expiry, the land ownership reverts to the Kenyan government unless an extension or renewal is granted. Freehold ownership and the acquisition of agricultural or controlled land are subject to strict legal provisions. To avoid disputes or fraud, it is essential for foreigners to seek legal counsel and adhere to the stipulated processes for land ownership in Kenya. You can also seek the services of reputable real estate agents such as Villa Watch Limited for a smooth purchase process