LAND HOLDING BY FOREIGNERS IN KENYA: AN AUDIT OF SECTION 9 OF THE LAND CONTROL ACT, CAP. 302

Overview

The Constitution of Kenya, 2010, a transformative charter[1] initiated sweeping changes, among them, land laws.[2] In a ripple effect, an overhaul of the land laws in the year 2012 was occasioned to align the relevant laws with the Constitution.[3] Consequently, Kenyans ended up with the Land Act, 2012, Land Registration Act, 2012 and the Community Land Act, 2016.

The Land Control Act, Cap. 302 among other legislation were not affected by the overhaul of land laws in the year 2012. However, some of the provisions of the Constitution of Kenya, 2010, have a direct implication on this hitherto legislation not repealed or aligned with the new land laws. Nonetheless, for legal certainty, the Constitution provides that laws that were enacted before the effective date shall continue applying with necessary modifications and variations.[4] This updating of legislation is an ongoing exercise falling on the shoulders of Parliament.[5] It is exercised on a need basis, each situation presenting a unique set of circumstances.

Pre-independence Emergence of Land Control in Kenya

As the Colonial Government prepared Kenya for independence, a burning issue that needed address was how to address the transition of customary land tenure (which was communal) to individual land ownership.[6] The Swynnerton Plan proposed the conversion of communal land ownership to an individual one as the latter would provide an indefeasible title.[7] Such a title once registered, would create a land market that would spur economic development through the principle of willing buyer and willing seller.[8]

In order to guide the changes in land transfer, the colonial government set up the Working Party on African Land Tenure (1957 – 1958).[9] The Working Party recommended the enactment of various laws and the relevant law here is the Land Control (Native Lands) Ordinance of 1959.[10] A land market was alien to the African customs. To mitigate this, the Working Party in its report, felt that it was sufficient to give (Land Control) Boards a very wide discretion which would enable them to:-

“…to forbid, for instance, if they so wish, the alienation of land outside the tribe, clan or family group, and also to exercise some restraint over the newly emancipated land owner who wishes to sell his land to the detriment of his family.”[11]

It would appear that the above view obtained up to the early days of independence and all the way to the enactment of the Land Control Act, 1967 which law captured the above view and expanded it.

Land Control Legislation in Independence Kenya

Land Control in independent Kenya, is a concept, as demonstrated above, as dating back to pre-independence. It was informed by the need to regulate transactions in agricultural land for various reasons.[12] These reasons include the subdivision of land into agriculturally uneconomical units,[13] mitigating the danger of landlessness inherent in the unchecked alienation and disposal of land,[14] and keep under control the ownership of land by non-Kenyans (aliens).[15] Ideally, after independence, the import of the Land Control Act, Cap. 302 is to maintain the above mentioned control on agricultural land and make land available to Kenyans. Its predecessor, the Land Control (Native Lands) Ordinance No. 28 of 1959, had the goal of optimizing land use and facilitating large scale farming.[16] Some of these policy and legal considerations endure to date albeit with some modifications and interpretation occasioned by the Constitution of Kenya, 2010 and the legislation’s enacted pursuant to it.[17]

Land Control Legislation after the 2010 Constitution

The Constitution of Kenya, 2010, provides that non-citizens may hold a leasehold interest in land, subject to a ninety nine (99) year lease.[18] This provision represent the new-found status of land ownership in Kenya by foreigners. It is now a constitutional guarantee subject only to limitations under article 24. On the other hand, the Land Control Act provides that the Land Control Board shall refuse consent in any case in which the land or share is to be disposed of by way of sale, transfer, lease, exchange or partition to foreigner.[19] A person in this case is understood in terms of the Constitution[20] and the Land Control Act.[21] The liberalised position under the constitution, is only subject to limitations that may be imposed by parliament pursuant to Article 65 (4) of the Constitution and the general limitation under article 24 of the Constitution. Therefore, this begs the question whether the limitation under section 9 (1) (c) of the Land Control Act will stand scrutiny.

Further, in exercise of its legislative mandate, parliament enacted the Land Act which introduces a new aspect of controlled land.[22] To that effect, land which is within a zone of twenty-five kilometres from the inland national boundary of Kenya[23] or within the first and second row from the high watermark of the Indian Ocean[24] can only be dealt with in relation to an ineligible person (i.e. a foreigner, or government of another country)[25] if the prior consent of the Cabinet Secretary is sought.[26] This provision, adds to the scope of controlled transactions.

The Place of Section 9 of the Land Control Act under the 2010 Constitution

Be that as it may, the import of Section 9 (1) (c) of the Land Control Act, Cap. 302 in light of Article 65 of the Constitution of Kenya, 2010 is an outright contradiction. The former as earlier alluded, provides that the Land Control Board shall refuse consent where dispositions of interest in land is to a person or a company who is not a citizen of Kenya. The Constitution on the other hand, grants non-citizens a lease limited to Ninety Nine (99) years without limitations, save for those that have been imposed by Section 12A of the Land Act.

Thus, the Land Control Act, Cap. 302 retains a clause that limits a right that is guaranteed by the constitution. It is important to appreciate that the Constitution of Kenya, 2010, is the supreme law of the land. Any other law that is in contravention or is inconsistent with its dictates, is a nullity. It is however important to point out that the Constitution provides that certain rights may only be enjoyed by Kenyan citizens.[27] However, foreigners are still entitled to enjoy certain rights i.e. in this case rights to own property subject to a ninety nine (99) year lease.[28] To discriminate a foreigner by clawing back a guarantee in the Constitution through the use of a constitutional guarantee defeats the very aegis of our Constitution.

Conclusion

With the benefit of hindsight, the High Court in the case of KAPI Ltd & another v Pyrethrum Board of Kenya[29] in determining a question whether a foreigner can move court for violation of fundamental rights and freedoms noted that; “[i]f the Constitution were to make such provision, it would be absurd because it would mean a Kenyan living outside Kenya would be subject to like treatment, so that his basic human rights would not be guaranteed.”[30] The Court held that certain fundamental rights and freedoms are universal[31] and can be enjoyed by any person without discriminating between a Kenyan and a foreigner. It is therefore evident from the analysis herein, that section 9 (1) (c) of the Land Control Act, Cap. 302 is an archaic clawback clause reminiscent only of the Repeal Constitution.[32]

Recommendations

To cure this anomaly, there is need to amend the Land Control Act, Cap. 302 to align it with the Constitution of Kenya, 2010. The amendment will rid the Land Control Act of the unnecessary restriction in light of the provisions of Article 65 of the Constitution. The amendment would be to delete the provisions of Section 9 (1) (c) while saving the provisions of Section 12A of the Land Act, 2012. Further, a proviso to section 24 of the Act will be necessary in order to expressly entrench the provisions of Section 65 and thus avoiding unnecessary bureaucracy and reduce the cost of doing business as well as encouraging foreign direct investments in Kenya.

* LLB (UON), PGD (KSL), Certified Secretary (CS), Partner, Kipkenda & Company Advocates, Advocate of the High Court of Kenya.

[1] Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ 14 (1998) South African Journal of Human Rights 146; In the Matter of the Speaker of the Senate & another [2013] eKLR, paragraph 52, the Supreme Court of Kenya stated that ‘Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.

[2] In the Matter of the National Land Commission [2015] eKLR.

[3] Isack M’Inanga Kiebia v Isaya Theuri M’Lintari & another [2015] eKLR, Paragraph 35.

[4] See, Constitution of Kenya, 2010, Sixth Schedule (Article 262) Part 2, Item 7.

[5] See, Constitution of Kenya, 2010, Article 94 (5), “No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.”

[6] Simon Coldham, ‘A Comparative Study of Land Tenure Legislation in Africa’ (1985) Acta Juridica 189.

[7] See, Joel M. Ngugi, ‘Re-Examing the Role of Private Property in Market Democracies: Problematic Ideological Issues Raised by Land Registration’ (2004) 25 Michigan Journal of International Law 467.

[8] Simon Coldham, ‘Land Control in Kenya’ (1978) 22 Journal of African Law 63.

[9] Set up by the Kenyan Government on 11th March, 1957.

[10] See, “Report of Working Party on African Land Tenure in Kenya.” (1959) 3/1 Journal of African Law 2-6.

[11] See, Report of the Working Party on African Land Tenure, 1957-1958 (1958) para. 101.

[12] See, Prof. HWO Okoth Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (Acts Press 1991) page 74.

[13] David Sironga Ole Tukai v Francis Arap Muge and others [2014] eKLR.

[14] Ibid.

[15] Wamukota v Donati [1987] KLR 280 at page 291.

[16] See, Prof. HWO Okoth Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (Acts Press 1991) page 74.

[17] See, generally, Oscar Angote, ‘Land Control Board Consent and the Doctrine of Constructive Trust’ 15 (1) The Law Society of Kenya Journal 63 – 87.

[18] See, Constitution of Kenya, 2010, Article 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.”

[19] Land Control Act, Cap. 302, Section 9 (1) (c).

[20] See, Constitution of Kenya, 2010, Article 65 (3), 260.

[21] Land Control Act, Cap. 302, Section 9 (1) (c) (i) & (ii).

[22] Land Act, No. 6 of 2012, Section 12A

[23] Land Act, No. 6 of 2012, Section 12A (1) (a).

[24] Land Act, No. 6 of 2012, Section 12A (1) (b).

[25] Land Act, No. 6 of 2012, Section 12A (1) (i – iii).

[26] Land Act, No. 6 of 2012, Section 12A (2) & (3).

[27] Kamal Jadva Vekaria v Director General, Kenya Citizens and Foreign Nationals Management Service [2016] eKLR, Paragraph 32; KAPI Ltd & another v Pyrethrum Board of Kenya [2013] eKLR Court held that, ‘However, apart from the rights listed under Article 25, all other rights have their limitations. However, apart from the rights listed under Article 25, all other rights have their limitations. For example a non-Kenyan may not have the same rights under Article 35 on access to information as a Kenyan would have, or the economic rights – Article 43. As respects this case, the applicants’ right to hold land is provided for under Article 65 of the Constitution. If his rights as respects the holding of land within the context of Article 65 are violated, then he has the right, under Article 22 to move the court for enforcement of his rights.’

[28] See the reasoning in KAPI Ltd & another v Pyrethrum Board of Kenya [2013] eKLR. High Court held that ‘Article 20 of the Constitution on application of the Bill of Rights, it is clear, that every person enjoys the rights and fundamental freedoms in the Bill of Rights. It does not limit it to Kenyan citizens alone.’ ‘Similarly, Article 22 of the Constitution on enforcement of the Bill of Rights gives all persons the right to institute court proceedings to enforce their rights.’

[29] [2013] eKLR.

[30] Ibid.

[31] Court noted that Article 2(5) of our Constitution provides that the general rules of International Law shall form part of the Laws of Kenya. It thus proceeded to apply the Universal Declaration of Human Rights, 1948.

[32] See, Morris Kiwinda Mbodenyi & John Osogo Ambani, The New Constitutional Law of Kenya: Principles, Government and Human Rights (LawAfrica, Nairobi 2012) pp. 228 – 231.

BP2O3053(1)
STEPHEN KIPKENDA KIPLAGAT
Senior and Founding Partner, Advocate of the High Court of Kenya

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