The Basics Of Buying And Selling Land Part 1

Land is a very valuable long term asset which is unfortunately not treated as such especially when it comes to land transactions. Unlike other commodities, the purchase of land is not a simple exchange of goods for money but instead it is a complex dance which has to be done with patience, research and sufficient information. Land is one of the few assets that constantly increases in value yet it does not change in size for the simple reason that land is finite, it is limited in supply and yet the population continues to grow and with it demand. A recent book published in Kenya revealed a disturbing statistic that 8 out of 10 Kenyans are conned when buying land in Kenya. This is primarily because a lot of people make assumptions, fail to do sufficient research and generally lack information as to the legal processes and procedure for land acquisition, ownership and transfer of land. Not to worry, the purpose of this article is to equip you with sufficient knowledge before you make that big step. First we will address what you need to know when considering buying or selling land and then address the legal procedure for acquiring land in Kenya.

What do you need to know when considering buying or selling land?

Just like with any new venture, first time buyers or sellers of land can find the process quite challenging and overwhelming. This makes them easy prey for con-men who take advantage of the seemingly complex procedures. Any first time buyer needs to first understand the applicable law in the land transaction process. The Constitution of Kenya guarantees every person the right to own land in Kenya. It is important to learn that this right to own property is not an absolute right and just like any law it has some limitations. For example Kenyan citizens can acquire land freely while foreigners can only acquire land on leasehold (which will be defined shortly.

It is important to understand types of land and land use in Kenya. The Constitution has classified three types of land which are public, private and community land. Public land is land owned and registered to the state and includes unclaimed inheritance, any unclaimed land and wasteland, parks and game reserves, sanctuaries, all rivers and lakes, any minerals or mineral oil, the sea and the sea bed as well as forests. 

Community land is based on communal ownership and is assigned to a group of people belonging to the same ethnic background. A lot of properties in Kajiado, for instance, are communal properties.

Private land is owned by individuals like you and I and gives the right of holding land in two forms. The first system gives a person absolute ownership of the land for life including their descendants which in legal terms is called freehold tenure or absolute proprietorship. While the second system restricts ownership to a specified period of time governed by a document called a lease and hence referred to as leasehold tenure in legal terms. The maximum period a lease can last is 99 years after which it reverts back to the government (a good example would be the famous Delamere farm). Another interesting fact is that absolute ownership of land is only applicable to Kenyan citizens while foreigners can only own land under a lease. (Tanui, 2021)

This information is useful as one can only purchase private land as community and government land have special conditions for acquisition or allocation. Land can also be restricted in terms of its use depending on the zone. Some lands are restricted for commercial use, residential or agricultural. A buyer should ensure the land they intend to purchase is in a zone which permits their intended use. While changing use is permissible, it may save one the headache of engaging in that process if the property’s use us already changed to what they would like.

Would you buy an item without first seeing it? The answer is obviously no and thus the same should go for land transactions. Every buyer should visit the land they intend to buy to verify its existence, its physical conditions, and any activities that may be surround the land such as encroachment of the boundaries or presence of squatters. While it may sound absurd, it may be advisable to visit the land during the rainy season — this is after all the best way to verify the land’s water flow and retention and the soil intake of the water. Many lands that are prone to floods or landslides are usually sold during the dry season to attempt to hide this fact. Of great import is also speaking to the neighbours since they know whether the land has serious conflicts, cases in court or whether someone else has tried to purchase the land. 

Stay tuned on this very important topic.

Research by 

Maurine Kerich.