Well, the short answer is Yes! Non- Kenyans are allowed by law to legally purchase, convey, and own land in Kenya. The Constitution, however, restricts that ownership to the leasehold of a period of 99 years.
“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 the acquisition of an 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 the 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”
Real estate is the best investment on earth, with Kenya being a prime investment location for both citizens and foreigners.
Real estate continues to prove this with high returns repeatedly. There however continues to be a lot of confusion on whether non-citizens can legally buy commercial, residential, or even speculative real estate properties on their own names, their company, or a family trust.
This article seeks to clearly elaborate on some of these issues. It seeks to inform on;
- How non-citizens can buy land in Kenya,
- How they can hold it- on freehold or leasehold, an
- How long they can hold the piece of land they seek to purchase.
How non-citizens are able to buy and own land in Kenya
The 2010 Kenyan constitution, the Land Acts (6/2012), and the Land Registration Act (3/2012) all clearly provide for how non- Kenyan citizens can legally buy and own land in Kenya.
Article 65 (1) of the Constitution states, ” 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”
However, unlike Kenyan citizen, foreigners can only own land on a leasehold of up to 99 years. This limitation is provided for in the Constitution (2010) and the Land Control Act (Cap 302).
What this therefore means is that, if a foreigner purchases a piece of land on a freehold, the title on the land is automatically assumed to be on a leasehold of 99 years. This is provided for in Article 8(1) of the Constitution (2010).
After the expiry of a leasehold title, the current owner is given priority for allocation of the land by the land commission unless the national government or the county government requires the land for public reasons.
Limitations on land ownership by non-citizen in Kenya
Kenya is a democracy, working in the confines of a written constitution that clearly dictates and gives legal right to foreigners to buy and hold land in Kenya. The ownership is however limited to a leasehold tenure not exceeding ninety-nine years, that can then be renewed after it expires.
As a foreigner, you need to know that when someone claims to offer land documents that purport to confer a tenure of more than 99 years, you are being duped, by law you will be deemed to hold them on a lease of only 99 years. Be smart.
When seeking to buy land with a company, those with more than one foreign shareholders are regarded as being a foreign company and cannot, therefore, own freehold land.
Foreign companies – those with more than one foreign shareholder- can, however, own the land on a leasehold and pay an extremely low rent (peppercorn rent) on it to the government.
The final limitation on foreigners owning land in Kenya is that they cannot own first-row beach plots and agricultural land unless explicitly allowed by the president through a notice in the Kenyan Gazette.
What are the requirements for buying land in Kenya as a foreigner
Many foreign nationals continue to rent, lease and acquire immovable properties in Kenya. Majority of them, however, continue to be duped into believing that they cannot own land in their name unless they form partnerships with the locals.
This is one of the things that has led to an increase in nasty court cases and many of them being duped in land dealings.
Requirements for foreigners to legally buy land in Kenya are as follows:
1. Own as an Individual
A foreigner or a non –Kenyan citizen is defined by law as a person belonging to or owing allegiance to a different country.
2. Own with a trust
Trust on the other hand is a legal arrangement where a person known as a trustee holds property as his or her own for the benefit of another individual.
As is the case with foreign individual, the same limitation on ownership also applies to trusts whose beneficiaries are not Kenyan citizens.
3. Own with a company
By law, a company is a separate entity from those forming it. The Kenyan constitution provided for these legal entities to buy and own land in their name.
A foreign company – with more than one foreign shareholder – can only own land in Kenya on a leasehold of not more than 99 years.
How to avoid being duped
The land is a sensitive issue in Kenya; many foreigners continue to be duped into questionable land dealing. As a foreigner, you can cushion yourself and your family from all this by seeking the services of a competent legal professional.
A competent lawyer will be able to guide you in all the steps provided by law and what requirements you need to legally buy and own land in Kenya. In such a case, he or she can also offer legal representation in the event of a dispute.
Note, however, that lots of effort should be directed at identifying a lawyer that has your interest at heart.
