SECTION 47 OF THE LAND LAWS (AMENDMENT ACT) 2016 DECLARED UNCONSTITUTIONAL IN MALINDI LAW SOCIETY & 12 OTHERS V ATTORNEY GENERAL & 2 OTHERS, CONSOLIDATED PETITION NUMBERS 19 & 291 OF 2016.

The President HE Uhuru Kenyatta on 31st August 2016, assented to law the Land Laws (Amendment) Bill 2015 to amend the Laws relating to land so as to align them with the Constitution, to give effect to Articles 68(c) (i) and 67 (2) (e) of the Constitution, to provide for procedures on eviction from land, and for connected purposes.
One of the more troubling amendments was Section 47. That Section 47 of the Land Laws (Amendment) Act had amended Section 12 of the Land Act and introduced the concept of controlled land, defined as land which is:

1. within a zone of twenty-five kilometers from the inland national boundary of Kenya;
2. within the first and second row from high water mark of the Indian Ocean, and
3. any other land as could be declared controlled under any statute.

Under section 47(2) of the Amendments, no transaction in controlled land, could be dealt with without the prior approval of the Cabinet Secretary (“the CS”). The CS was further required to seek the approval of the relevant authorities before sanctioning any transaction.

The import of this was to introduce new regulatory burdens on non-citizens with land interests particularly at the coastal strip whenever they sought to deal in their land, for example by way of charging or subleasing the same. With the slow nature of bureaucratic processes in Kenya, this had the potential of disrupting business owners’ ability to obtain funds from lenders occasioning further damage to the hospitality sector and the economy of the coastal region generally which are mostly run by non-citizens.

the amendment was seen as an unjustified infringement on land ownership rights as guaranteed under Article 40 of the Constitution which provides for the protection of rights to property. The amendment was premised as “operationalizing” Article 65 of the Constitution which bars non-citizens from holding land other than on leasehold basis, which in any event cannot be for a period that exceeds 99 years. However, under the article the only limitation to non-citizens’ ownership rights had to do with duration and not location.

By a Petition dated and filed on 6th October 2016, the Malindi Law Society in Malindi Law Society & 12 others v Attorney General & 2 others, Consolidated Petition Numbers 19 & 291 of 2016 sought orders against the

Honourable Attorney General and the National Assembly as follows: –

• A declaration that Sections 2 on the definition of Court, Section 38, 47, 48 and 98 of the Land Laws (Amendment) Act, 2016 are unconstitutional, null and void.
• Costs of the petition; and Any such other Order(s) as this Honourable Court shall deem just.

The Court held that the exercise of the ownership right to property would be greatly limited within the defined controlled land and it was therefore incumbent upon the State to demonstrate that the limitation was justifiable, and that the societal need therefore outweighed the individuals’ right to enjoy the right or freedom to deal with their properties, even in cases where the individual in question is a non-citizen. There was no reasonable justification to warrant section 47.

In conclusion, this decision has provided relief to non-citizen property owners and lenders alike in the sense that, the uncertainty created by the Amendment had meant that lenders were unsure if they could continue to charge lands at the coastal strip or whether the proprietors would be able to continue servicing the existing lending facilities without the ability to further charge or otherwise dispose of.