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?

The ruling is broad as it addresses several sections of the Land Laws (Amendment) Act, which the petitioners sought to declare unconstitutional. Due to space limitations, I will restrict myself to the matter of controlled land. The petitioners argued that the amendments providing for “controlled land” and “ineligible persons” are discriminatory as far as they sought to redefine the meaning of the terms “land” and “persons” as provided under the constitution. They observed that apart from the restrictions on the period for which one can hold land, there weren’t any other restrictions for ownership of land by non-citizens in the constitution.

Malindi ELC Annuls provisions

In rebutting this argument, the respondents explained that the controls introduced under the amendments were intended to ensure that security agencies were aware of any movement of persons or goods in and out of our international borders as accessed through water or land. They explained that the consent required before non-citizens owned land in certain parts of Kenya were therefore meant to facilitate and guarantee the rights and freedoms guaranteed under the constitution.

The court subsequently observed that the amendment has far-reaching implications on the rights to ownership of property. The court was of the view that the exercise of such rights would be greatly limited within the defined “controlled land”. Therefore, it was incumbent upon the State to demonstrate that the limitation is justifiable, and that the societal need outweighs an individual’s right to enjoy the right or freedom to deal with their properties. The court was not satisfied that there was reasonable justification to warrant the provision and therefore issued orders to annul it.

This is a substantive issue. Moreover, land laws undergo intense stakeholder scrutiny before enactment by parliament. Given today’s circumstances where the security environment in some of Kenya’s neighbours is rather fragile, this ruling will most likely be revisited.

Dated 12^th November, 2021