Land Tenure under the 2010 Constitution & Types of Land Transactions in Kenya

Real Estate and Conveyancing, land tenure ,

 

1. Public Land

  • Held by the government in trust for the people (Art. 62).
  • Administered by the National Land Commission (NLC).
  • Disposal can only be done through legislation.
  • Tip for investors: If buying land that was once public, ensure allocation was lawful. Always request the legislation or documents authorizing the allocation.

2. Community Land

  • Vested in communities based on ethnicity, culture, or interest (Art. 63).
  • County governments hold unregistered community land in trust.
  • Any transfer requires two-thirds approval of the community (Community Land Act).
  • Tip: When purchasing, always request the community’s written approval and registration certificate.

3. Private Land

  • Includes freehold and leasehold interests (Art. 64).
  • Ownership confirmed through registration and searches at the Lands Registry.
  • Non-citizens may only hold land on leasehold (max 99 years).
  • Tip: Beyond official searches, conduct a historical search to confirm legitimacy of the vendor’s title.

Types of Land Transactions in Kenya

Transfers

  • Voluntary transfer of ownership (sale, assignment, or conveyance).
  • Subject to conditions on title (e.g., charges, user restrictions).

Transmissions

  • Involuntary transfers (death of proprietor, bankruptcy, company liquidation).
  • Requires supporting legal documents such as grants of representation.

Leases

  • Can be short-term, long-term, periodic, subleases, or sectional titles.
  • Choice depends on purpose (e.g., long-term leases for office spaces, subleases for apartments).

Charges

  • Land used as security for loans or financing.
  • Developers often use this for financing projects, discharging units progressively upon sale.

Practical Due Diligence Tips

  1. Confirm tenure classification (public, community, or private).
  2. Request completion documents: legislation (if public), community approval (if community land), title and clearances (if private).
  3. Conduct both official and historical searches.
  4. Insist on clearance certificates for rates and rent.
  5. Align projects with public interest and planning laws where applicable.

Conclusion & Call to Action

Kenya’s land regime has a complex history shaped by colonial policies, post-independence reforms, and the 2010 Constitution. For investors, developers, and homeowners, understanding tenure and transactions is not optional—it is essential.

At HKM Associates, Advocates, we guide clients through land due diligence, acquisitions, and transactions to ensure security, compliance, and return on investment.

📞 Contact us today for professional support in acquiring land and real estate in Kenya.