THE CONSTITUTIONAL QUESTION OF LAND HOLDING BY NON-CITIZENS IN KENYA

  • Factual Background

The non-citizens held freehold interests in land in Kenya before the passage of the Constitution of Kenya 2010. The Constitution 2010 decreed that upon promulgation, the freehold interests held by non-citizens would revert to the state upon which the State would instantly issue 99 year leases at a peppercorn rent.

However despite the conversion in title the State has, almost two years later, failed to issue any leasehold titles to non-citizens as contemplated by the Constitution. The state has largely been silent on this issue notwithstanding the fact that the freehold titles stood revoked upon the date of promulgation.

To aggravate the situation, the Land Bills are silent on the matter. The result is that legitimate property owners are left without any legal protection of their property.

 

  • Emerging Issues Under Article 65
  • Are non-citizen freehold proprietors in Kenya entitled to 99 year leasehold grants upon promulgation?

 

  • Is the failure to issue the leasehold grant more than two years later unconstitutional?

 

 

  • Does the action breach any provision of the Bill of Rights?

 

  • What remedies do non-citizens have to protect their property?

 

 

  • Brief Answers

Are non-citizen freehold proprietors in Kenya entitled to 99 year leasehold grants upon promulgation?

Yes, under Section 65 of the Constitution, non-citizens are entitled to hold property albeit a 99 year old leasehold. It is an incorrect notion for anyone to assume that non-citizens are not allowed to hold any land in Kenya.

 

Is the failure to issue the leasehold grant more than two years later unconstitutional?

 

Yes. Paragraph 8 of the Sixth Schedule obliged the state to grant 99 year leases in place of freeholds held by non-citizens upon promulgation. The omission breaches this express constitutional decree.

 

Does the action breach any provision of the Bill of Rights?

 

Yes. The long running omission is in breach of the Bill of Rights and property rights under Articles 19, 20, 27(4) 40 and 47 of the Constitution.

 

What remedies do non-citizens have to protect their property?

 

The affected property owners can move under Article 23 of the Constitution and seek the remedies for breach of fundamental freedoms; injunctions, judicial review orders (mandamus, certiorari and prohibition)

 

  • Legal Position

Article 65 of the Constitution allows non-citizens to hold land in Kenya, limited to 99 year leases. Article 65(2), as read with Paragraph 8 of the Sixth Schedule gives the provision retrospective effect so that all existing freeholds automatically reverted to the State in consideration for the immediate grant of a 99 year lease at a peppercorn (nominal) rent. The conversion would have automatic effect on the effective date.

The Constitution of Kenya 2010 was promulgated and became effective on 27th August 2010. The conversion of the Petitioners freehold interest to a leasehold interest therefore automatically took place on 27th August 2010.

However, the State through the Ministry of Lands has declined, neglected or failed to grant non-citizens a 99 year lease as assured by the Constitution. The omissions extend close to two years beyond the effective date and continue.

Additionally the State has breached the express terms of Article 65 as read with Paragraph 8 of the Sixth Schedule. The omission defies the Constitutional order expressed in Paragraph 8 of the Sixth Schedule that required the State to instantly substitute non-citizen’s freehold grants for 99 year leasehold grants for a peppercorn rent.

The State’s inaction is therefore openly unconstitutional. Every person is obliged under Article 3(1) to respect, uphold and defend the Constitution. As a matter of fact, Article 1(4) invalidates any acts or omissions which contravene the Constitution. The States omission amounts to constitutional contempt.

Moreover Article 68(c) (ii) obliges Parliament to make further provisions on how land can be converted from one category to another. The Land Bills omit to provide for how freehold interests held by non-citizens will be converted to leaseholds.

The result of these omissions is that non-citizens’ rights are left in a vacuum without any legal protection.  This is in breach of Article 19, 20, 40 and 47 of the Constitution.

The transgression does not stop with the Constitution of Kenya. Indeed Articles 2(5) and (6) of the Constitution of Kenya warrant the application of customary international law as well as treaties ratified by Kenya. The State is party to a number of international human rights conventions.

 

Relevant International Human Rights Law Provisions on the Right to Property

 

In this regard the failure, refusal or omission to issue the 99 year leases is in breach of Article 17 of the  Universal Declaration of Human Rights (1948) to which Kenya is a party. The article declares that “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.” (Emphasis ours).

 

The inaction is an arbitrary deprivation of property since the State has failed or refused to grant the 99 year leases with the result that legitimate property owners are not certain what kind of interest, if any, they hold over their property.

 

Likewise the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) has the most detailed property clause, including conditions for permissible State interference:

No migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under the legislation in force in the State of employment, the assets of a migrant worker or a member of his or her family are expropriated in whole or in part, the person concerned shall have the right to fair and adequate compensation. (Art. 15)

Equally Article 16 of the International Covenant on Civil and Political Rights (1966) affords all, without any discrimination, the equal protection of the law. In this respect, the law prohibits any discrimination and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Emphasis ours).

The same is reiterated in Article 2 of the International Covenant on Economic, Social and Cultural Rights (1976).

The First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, commonly referred to as the European Convention on Human Rights (ECHR) at Article 1 recognizes that:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The American Convention on Human Rights (ACHR) upholds the right of everyone to the “use and enjoyment of his property” and lays down the possibility of subordinating this right to the interest of society, while at the same time specifying the restrictions on State actions (Article 21).

At the same time Article 14 of the African Charter on Human and Peoples’ Rights (1981) guarantees the right to property and outlines the public need and general interest of the community as legitimate grounds for limiting the right. The encroachment on the right must also be in “accordance with the provisions of appropriate laws” (emphasis ours).

Customary International Law

It is a well recognized rule in international law that the property of non-citizens cannot be taken, whether for public purposes or not, without adequate compensation (Iran-United States Claims Tribunal). The state omissions amount to expropriation of foreigner’s property without compensation against the rules of customary international law. Article 2(5) of the Constitution of Kenya incorporates general rules of international law as part of the laws of Kenya.

It is well settled that expropriation occurs when the “effect of the measures taken by the state deprive the owner of the title, possession or access to the benefit and economic use of his property’’ (Santa Elena v Costa Rica (1926) Series A, No. 7,PCIJ; see also Papamichalopoulos v. Greece (1993) Series A, No. 260, ECHR at page 15).

Remedies

The Constitution at Articles 22 and 23 provide the remedies for the breach of fundamental rights, in this case, the Petitioner’s property rights under Article 19, 20, 40, 47 as read together with Article 65 and Paragraph 8 of the Sixth Schedule.

 

The High Court is empowered to issue orders including; a declaration of rights, an injunction, an order for compensation and an order for judicial review.

 

  1. Constitutional Petition

 

The affected landowners ought to speedily file a constitutional petition for determination of the constitutional questions set at Section (a) above. The grounds will be that the omission to grant the leasehold violates the Constitution as discussed. The filing of the petition should have a suspensive effect on the enactment process of the land bills, any transactions on the suit lands and the grant of title on the land to any third parties.

 

  1. Lobbying

With appropriate instructions, we are able to lobby the relevant authorities to not only fast track the process of issuing the grants but also consider the non-citizens’ interest in the Draft Land Bills. If all else fails then on behalf of the interested parties we would be able to get a court order stopping any process of legislating the Land laws until the non-citizens issues has been adequately catered for. We must say at this point that an extension has been granted for 60 days before the Bill can become law.

 

 

 

  1. Preservation of the Freehold Titles

Though the titles have in theory converted, non-citizens acting within the existing gap could transfer the freehold interests to trusts for the benefit of or companies incorporated with citizens.

The move however has its inherent legal as well as fiscal risks. In any case the conversion has already occurred and the courts might be unwilling to adjudicate subsequent disputes along this line in favour of the property owners.

 

 

CONCLUSION

 

The most preferred remedy at the moment is lobbying the Government to consider your rights and to include the issue in the Land Bill. If after lobbying the results are still not favourable then we can get relevant court orders stopping the entire process and forcing the authorities to consider the non-citizen issue.

 

Suffice it to say, from the definition of non-citizen, many state corporations, listed companies and trusts are affected. We do not expect the Government to have a discriminatory application of the Constitution. We look forward to hearing from you and do not hesitate to contact us should you require any further clarifications on the way forward.

Section 8 of the Sixth Schedule

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