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What to know about property laws in Kenya

Definition of land

Under Article 260 of the constitution of Kenya, land is defined as

  1. Any body of water on or under the surface
  2. The surface of the earth and the subsurface rock
  3. Natural resources which are on or under the surface

Freehold and leasehold land

A freehold land is where a person has complete interest on the land and the holder has absolute ownership of the land for life. The family of the owner can succeed the owner so long as the family lineage exists. The title for the freehold land has no restrictions to the occupation or use.

A leasehold land is where the interest in the land is limited to a specific period where the holder pays a fee or rent to the lessor and does not give the holder absolute ownership.

Real property and personal property

Real property is the one which is fixed permanently to one location. It includes land, structures built on the land, anything that grows on the land, and those that exist under the face of the land.

The new land laws of Kenya

Public land

Under article 62 of the constitution, public land is defined as land, which is occupied by a state organ, land, which is transferred to the State, land which has no any identified heir, forests, minerals, national parks, reserves, water catchment areas like seas, rivers, lakes any land which is not classified as private land or community land .public land is reserved for public use and it is held by the government for the citizens.

Community land

Under article 63 of the constitution community land is defined as land, which is lawfully registered under a group of representatives, or belongs to a group of people with the same ethnicity.

Private land

Under article 64 of the constitution of Kenya, private land is the land, which is registered and held by an individual under freehold occupation.

Highlights of the key changes of land laws

Ownership of land by non-Kenyan citizens – non-citizens can only hold land for a period of 99 years under a leasehold tenure and they cannot hold freehold property.

Spousal rights

The land registration act under section 93 provides that a spouse will attain an interest in the other partners land if the spouse contributes by effort, or other means to the production, improvement, and maintenance of land. The interest shall be known if it is registered against the title of the land.

Consent of spouse required for disposition of land

The land registration act under section 93 provides that when a spouse who owns a land or a house and it is registered under their name personally and wants to sell the land the buyer must ask for the consent of the other partner.

Protection of tenants unlawfully evicted

A tenant will be relieved from paying rent if the tenant is evicted contrary to the terms of his lease.

Different systems of registration of titles

Under the old land law, the Registered Land Act, the Registration of Titles Act, the Land Titles Act, and the Government Lands Act issued title deed but under the new land act only the Registered Land Act and the Registration Titles Act are valid to issue the title deeds.

Non-eviction of a purchaser in possession

The new law states that when a buyer takes ownership of the land before completing the sale process the seller can only regain ownership peacefully or through a court order.

Formation of an environment and land court

The land court and environment will setup a jurisdiction to regulate and hear the disputes related to the land.