The Constitution of Kenya, 2010 provides that all Land in Kenya belongs to the people of Kenya collectively as a nation, as well as to communities and individuals. As such, ownership of land by foreigners is subject to the provisions of the Constitution and other laws regulating Land Ownership in Kenya.
The Constitution of Kenya provides that non-citizens can only own land on a Leasehold basis for a maximum period of Ninety-Nine (99) years. Foreigners can acquire a Leasehold interest in land either from the government or from Private Individuals or Companies.
In the event that a Kenyan citizen sells the freehold interest to a foreigner and the freehold tenure is converted to Leasehold the property cannot be converted again to freehold tenure after the expiry of the leasehold term. Even where a foreigner acquires or holds a freehold title, the interest acquired is deemed to be a 99-year leasehold, the conversion is automatic and requires no further formalities to be operational.
After the expiry of the Leasehold term the foreigner can apply for a renewal of the Lease term or an extension of Lease. Unlike citizens, foreigners do not enjoy an automatic right of renewal or extension of a lease on expiry. Upon expiry, termination or extinction of a lease granted to a foreigner, the land shall vest in the government.
There are however certain restrictions imposed to foreigners who seek to own Land in Kenya. The Constitution restricts a non-citizen from owning freehold property under a trust and provides that any property held in trust shall be regarded as being held by a citizen only if all the beneficial interest of the trust is held by people who are citizens.
Furthermore, the Land Control Act restricts the ownership by non-citizens of agricultural land or land within land control areas. According to the Land Control Act (Cap 302) Laws of Kenya, agricultural land or land in land control areas is defined as land situate outside a municipality, township, market, or land designated by the Minister of Lands as being subject to the Act’s protection.The Act 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.However, the Land Control Act does not prohibit the trading of shares in public companies that own agricultural land. Consequently, a foreign investor can acquire ownership of agricultural land indirectly by purchasing shares in a public company that owns such land.
In summary, foreigners can own:
- Leasehold property and can apply for Lease Renewal.
- Apply for an exemption to own freehold property and once approved, this is published in the Kenya Gazette.
- Own agricultural land indirectly through owning shares in a public company that owns agricultural land.
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