In 1970, the then President Jomo Kenyatta issued a presidential decree prohibiting the sale and purchase of 1st and 2nd rows of beach plots on the Indian Ocean and land within a zone of 25 kilometres from the inland national boundaries of Kenya without consent from the President.
This position would obtain for over 42 years until it was declared illegal by the High Court in Mohamed Balala and 11 others Vs. The Attorney General and 7 others (2012). The Court found the presidential consent to be an illegal and discriminative practice and prohibitory orders were issued against officers who set presidential consent as a precondition before transferring land located on the 1st and 2nd row beach plot to foreigners. On appeal to the Court of Appeal, the appellate court upheld the decision in their 2014 ruling stating that:
“Neither the Registered Land Act, Registration of Titles Act nor the Land Titles Act, now all repealed, nor even the current land law regime has such provisions. Nor is there any statute or legal basis for requiring such consent.”
In 2016, and in an apparent attempt to reintroduce the requirement for consent for beach plots, Parliament enacted the Land Laws (Amendment) Act, 2016 (No. 28 of 2016) which sought to bring a myriad of changes to the land laws. These amendments were assented to by the President on 31st August, 2016 and came into effect on 21st September, 2016.
One of the key changes introduced by the amendments was introduction of section 12A to the Land Act.
This new section introduced the concept of “controlled land” and “ineligible persons”. The term “controlled land” was defined to mean land which is either (i) within a zone of twenty-five kilometres from the inland national boundary of Kenya; (ii) within the first and second row from high water mark of the Indian Ocean, or (iii) any other land as may be declared controlled land under any law or statute. An “ineligible person” was defined as (i) an individual who is not a Kenyan citizen; (ii) the government of a country other than Kenya or a political subdivision of a country other than Kenya, or any agency of such government or political subdivision, or (iii) a body corporate which has non-citizens as shareholders shall be deemed to be a noncitizen.
The section prohibited transactions in controlled land to an ineligible person without the prior written approval of the Cabinet Secretary.
Later in the year, the Malindi Law Society through Petition No. 19 of 2016, Malindi Law Society vs Attorney General of Kenya and Another petitioned the High Court challenging the constitutionality of section 12A of the Land Act. They were granted interim conservatory orders staying the application of section 12A, pending full hearing and determination of the petition. We await the determination of the Petition to see the direction this will take but in the meantime the consent of the Cabinet Secretary is not required.