WHO IS ELIGIBLE TO OWN LAND IN KENYA
The constitution of Kenya 2010 under chapter 5 clearly stipulates the organs that are entitled to own land. All land in Kenya belongs to the people of Kenya collectively as a nation, communities and as individuals. Land in Kenya is classified as public, community or Private. Articles (62) (63) and (64) of the constitution plainly distinguishes the classifications land ownership.
PUBLIC LAND CONSISTS OF THE FOLLOWING
(a) land which at the effective date was alienated government land as defined by an Act of Parliament in force at the effective date;
(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
(c) land transferred to the State by way of sale, reversion or surrender;
(d) land in respect of which no individual or community ownership can be established by any legal process;
(e) land in respect of which no heir can be identified by any legal process;
(f) all minerals and mineral oils as defined by law;
(g) government forests other than forests to which Article 63(2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
(h) all roads and thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the high and low water marks;
(m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament–
(i) In force at the effective date; or
(ii) enacted after the effective date.
COMMUNITY LAND CONSISTS OF THE FOLLOWING
(1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.
(2) Community land consists of–
(a) land lawfully registered in the name of group representatives under the provisions of any law;
(b) land lawfully transferred to a specific community by any process of law;
(c) any other land declared to be community land by an Act of Parliament; and
(d) land that is–
(i) Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines
(ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities;
(iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).
PRIVATE LAND CONSISTS OF THE FOLLOWING
(a) Registered land held by any person under any freehold tenure;
(b) Land held by any person under leasehold tenure; and
(c) any other land declared private land under an Act of Parliament.
CAN A NON-CITIZEN OWN LAND IN KENYA?
Kenya enjoys an open economy and therefore attracts Foreign Direct Investors in the Kenyan economic space. It is therefore necessary for the investors to setup their physical operating space within the Kenyan boundaries for ease of operations. The land question then arises, is it possible to own land in Kenya as a non-citizen? The answer is yes, you can actually be a proprietor of land or any real estate property in Kenya. A person who is a non-citizen may hold land on the basis of lease tenure only and any such lease shall not exceed ninety nine year. The lease is however renewable in accordance with the law. There are however certain limitations on land ownership for non-citizens. Foreigners are withheld by law from owning agricultural land.