Private Land

 

Land owned by an individual citizen is classified as private land. Such land may be owned as freehold land or as leasehold land. Chapter Five - Land and Environment, Part 1 - Land, Article 64, excerpts:

64. Private land consists of — (a) registered land held by any person under any freehold tenure; (b) land held by any person under leasehold tenure; .......

Non-citizens may hold land ownership in Kenya under a title of leasehold tenure only, and for a maximum term of 99 years without exception. This Constitutional provision in land ownership is part of the people's determination to make a break with their pre- and post-independence past where the political elite facilitated unfettered acquisition of land by well-connected foreigners and their businesses, irrespective of how noble the foreigners' cause may be:

65. (1) 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.
(2) If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.

In an effort to effect the provisions of Sub-Article (2) above, the National Land Commission NLC did ask in June of 2013 that all foreigners in the country with interest in land, to submit to the Commission all documents of ownership, lease, or allotment in their possession. This is important because the New Constitution nullified all land ownership lease term periods by foreigners and placed a ceiling of 99 years. Many such leases had 999 years lease periods.

Private ownership of land by a legal entity such as a company, or organisation is also permitted under the Constitution of Kenya 2010's Article 65 (3) which has clearly defined the circumstances under which such a body may own land in Kenya.

(3) For purposes of this Article— (a) a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; .......

Further, trust ownership of private land is possible under the Constitution:

(3) For purposes of this Article— ....... (b) property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.

When we recall that the Constitution of Kenya 2010 is strong on individual rights, it has, as expected, ensured that the right to own land will be protected:

60. (1) Land in Kenya shall be held, ....... in ....... accordance with the following principles— (b) security of land rights;

Furthermore affirmative action to children and women is equally strong in the spirit and letter of the Constitution in which these groups of (marginalised) people were granted clear and inalienable rights to ownership of land - in light of the fact that customary laws and traditions generally were unfavourable to them, and to women in particular, including the married:

60. (1) Land in Kenya shall be held, ....... in ....... accordance with the following principles— (f) elimination of gender discrimination in law, customs and practices related to land and property in land; .......

68. Parliament shall (c) enact legislation (iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; .......

Ownership of private land does not bequeath the owner unregulated right to the use of that land. As we will see under the sections on Land Use and Land Management, the Constitution requires that comprehensive laws be in place to govern access, use and management of all land in Kenya. 

 

 

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