Provision on controlled land

Only last month, this column highlighted the legal provision requiring that transactions for properties that are within 25 kilometers from Kenya’s inland borders or the first and second rows of the high water mark of the Indian Ocean obtain consent from the Lands Cabinet Secretary. According to the provision, non-citizens, without such consent, could not transact on such properties. Kenya is not alone on this. The Province of Alberta, Canada, also operates provisions to control land ownership by non-citizens.

But our courts have now outlawed the provision. A ruling by the Environment and Land Court sitting in Malindi has proclaimed it unconstitutional. While making orders on the consolidated petitions 19 and 291 of 2016 by the Malindi and Mombasa Law Societies respectively, the Court declared that the amendments introduced to the Land Act through the Land Laws (Amendment) Act 2016 to control land transactions are unconstitutional. These orders, among others issued in response to the consolidated petitions, were issued on 29^th October 2021. The Attorney General, the National Assembly and the National Land Commission were the respondents. What were the arguments?

Strategic locations

The land market cliché of “willing seller-willing buyer” doesn’t always hold true. For good reasons. Those who have been to our Indian Ocean seashore must have noticed how easily motor boats from the high seas can access our coastline, giving those aboard entry into mainland Kenya. Similarly, most of our international boundaries are rather open, save for the policed zones next to the formal border control posts. It’s so between us and Ethiopia, Uganda and even Tanzania. Those next to these international boundaries know this. In fact, border communities may not even know when they cross these boundaries as they move animals in search of pasture, or even visit their kin.

But ponder over eventualities where those with covert plans were able to not just enter, but also purchase property, near our international boundaries, and set operational bases. With such strategic territorial advantage, they’d move in and out at will, posing avoidable security threats. Informed by this possibility, policy and legal drafters embedded pre-emptive provisions in law. Therefore, not just anyone is free to purchase, or even transact, on land within some specified areas, deemed controlled.

STANDARD ON SUNDAY: September 8, 2013, Pgs 27,

Is Jubilee using title deeds as political bait to bag the Coast?

Updated Sunday, September 8th 2013 at 10:11 GMT +3

President Uhuru Kenyatta presents land papers to a Kwale resident on Monday.  [PHOTO: FILE/ STANDARD]

By JACOB NG’ETICH

KENYA: The week-long exercise to issue 66,000 title deeds at the Coast presided over by President Uhuru Kenyatta has been clouded by high octane politics.

In a previous discussion, I discussed the “invisible bumps” associated with property purchase. In the detail, l highlighted how some rogue urban land dealers embark on the sale of sub-plots from subdivision schemes for quick money without minding to seek approval from the relevant Local Authorities and the Commissioner of Lands as required by statute. But not all land owners, estate agents and developers fall in this category. Many go to great efforts to seek such approvals. However, such well meaning developers have usually met with considerable, at times insurmountable bureaucracy, institutional inefficiency and rent seeking. In situations like these, their applications for subdivision approval have gone unapproved for inordinately long, forcing some to commence sales of sub-plots to mitigate initial costs.

I always wonder how many purchasers get to mind the “invisible bumps” as they place deposits for properties advertised through neat subdivision layouts to be found in newspaper pages and the offices of some property agents. I am sure most of us have seen them. In fact, some shrewd dealers even emboss “sold out” over some of the plot numbers to create the impression of scarcity and entice quick sales. This plays on our psychology, making one get the impression that the scheme is good and all plots would soon be taken up unless one expedited deposits.