Land under the Constitution of Kenya is classified into public, private, and community land.
Public Land
This is land vested and managed by the state on behalf of citizens. It is mainly where roads, government buildings, and other state property are based. Public land can only be sold or transferred to a foreigner as private land under a leasehold interest through a grant of lease issued by the National Land Commission.
Community Land
This is land vested in community members identified by ethnicity and culture, such as ancestral land and community forests.
Private Land
This is land legally owned by individuals and private entities/legal persons such as companies. The land can be owned privately under freehold or leasehold tenure.
- Freehold interest denotes absolute and perpetual ownership of land, while Leasehold interest means time-restricted ownership of land under a lease agreement, subject to renewal.
- In the Freehold tenure system, a Title Deed or Certificate of Title is issued, and in the Leasehold tenure system, a Certificate of Lease is issued to confirm ownership.
Statutory Restrictions
Non-citizens cannot own freehold land in Kenya. They are only permitted to own land under the leasehold tenure only for a term not exceeding 99 years. Where the foreigner has acquired freehold land, even though a Kenyan-based company, the land is automatically converted to a leasehold interest of 99 years, and where the lease term expires, the land reverts back to the government.
Agricultural land is generally not leased to foreigners. Section 6(1c) of the Land Control Act stipulates that the Land Control Board Consent shall refuse to issue consents where the land is disposed of by way of sale, transfer, lease, exchange or partition to a person who is not a citizen of Kenya or a private company whose members are non-citizens.
Due Diligence
Due diligence refers to investigation and verification done before purchasing or leasing land to reveal any physical or legal issues. Firstly, a foreigner must apply for a KRA PIN before engaging any advocate. Due Diligence is undertaken via the online National Information Management System (Ardhisasa platform) or physically in the land registries through various searches to authenticate the vendor’s ( sellers ) title, existing encumbrances, history of the land dealings, and to also verify the land is under leasehold tenure.
Once the vendor obtains the Land Rent Clearance Certificate. The purchaser pays the purchase price balance and the necessary stamp duty. Lastly, the registration process is conducted on the Ardhisasa platform for properties within Nairobi or physically at various land registries outside Nairobi, after which one is issued a Certificate of Lease with an expiry period of 99years or less, depending on when the same was renewed. For one to engage in the registration process, they have to have a personal Ardhisasa account. To register for the same, one has to have a Kenyan phone number through which their identity will be verified; sometimes one is required to appear physically should the officials find it fit.
Investor Permit
An Investor permit (Class G permit) is given to a foreigner intending to run a business, start a trade or offer consultancy. An investor permit is not required unless the foreigner wants to live in Kenya to run a business.
Foreigners who intend to develop and reside in Kenya to oversee construction directly would need to apply for an investor permit.
Essentially, a foreigner can purchase property without an investor permit in the following ways:
- Purchasing a residential or commercial property strictly under leasehold interest under their personal name but without the intention to develop/invest on it.
- Joint ownership-Foreigners can co-develop or acquire co-ownership of residential apartments or units in Kenya.
- Shareholding in companies- foreigners who purchase land, an apartment, or a villa through a local Kenyan registered Company can only own the property under a leasehold interest, whether they have a majority or minority shareholding in the Kenyan Company.
To purchase a property in Kenya, one simply requires a valid passport for identification and a Kenya Revenue Authority PIN Certificate for tax purposes.
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