Recent developments in relation to land transactions and dealings (UPDATED)

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Historically, foreign investors have had to obtain Presidential Consent to transact in first and second row beach plots along the Kenyan coastline. Recognising that this requirement is unconstitutional, on 29 October 2021 the Environmental and Land Court (the Court) declared that anyone can now buy beach land without seeking such consent.

In Malindi Petition No.19 of 2016 Consolidated with Mombasa Petition No.291 of 2016, the Court addressed two fundamental questions:

  1. Is the Presidential Consent requirement unconstitutional?
  2. Does the Kenyan legal system unfairly discriminate against non-citizens and override their rights and privileges?

The reference to non-citizens includes foreign individuals, foreign governments and foreign political subdivisions, and body corporates with foreign shareholders.

What this means for you

Non-citizens are still restricted from owning land on a freehold basis, but may now proceed to invest in, and own, first and second row beach plots for a leasehold term of 99 years. This will come as a welcome relief to foreign investors seeking to tap into the Kenyan beachfront investment avenue. The 99-year leasehold term does not hinder the ability of non-citizens to invest in land in Kenya since, at the expiry of the leasehold term, non-citizens may apply for renewal or extension of their leases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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