Can a foreigner own property in Kenya?
Short answer: Yes – but with important constitutional and statutory restrictions.
Article 40(1) of the Constitution of Kenya, 2010 guarantees every person – including non-citizens – the right to acquire and own property in Kenya, either alone or in association with others.
However, Article 65(1) of the Constitution provides that a person who is not a citizen of Kenya may hold land only on the basis of leasehold tenure, and any such lease may not exceed 99 years. This provision safeguards national control over the most permanent form of land ownership (freehold).
If any document purports to give a foreigner an interest greater than a 99-year lease, the law automatically treats it as a 99-year lease and nothing more (Article 65(2)).
Under Article 65(3) and for purposes of all land transactions, a citizen is:
- A company is regarded as a citizen only if it is wholly owned by one or more Kenyan citizens.
- Property held in trust is treated as being held by a citizen only if all the beneficial interest in the trust is held by Kenyan citizens.
This means that a company with even one foreign shareholder is treated as a non-citizen company and cannot hold freehold land or a lease exceeding 99 years. w
Subsequently, foreign investors and expats can own property in Kenya, but typically in the form of:
- Long-term leasehold titles (up to 99 years); and
- Units in developments (e.g., apartments, offices) built on leasehold land.
What kind of property can foreigners own in Kenya?
Foreigners and foreign-owned companies can legally own:
- Urban apartments and townhouses built on leasehold land (e.g., Nairobi, Mombasa, Kisumu, major towns).
- Commercial property such as office blocks, retail units, mixed-use developments, and industrial warehouses on leasehold titles.
- Long-term leases or sub-leases in mixed-use or gated communities where the head title is leasehold.
They cannot hold:
- Freehold titles in their own name as non-citizens; any such interest is treated as a 99-year lease by operation of the Constitution and implementing regulations.
- Agricultural land (with limited, case-by-case exemptions granted by the President through Gazette notice, and subject to statutory conditions).
What is the constitutional restriction on foreign land ownership in Kenya?
The core constitutional restrictions are:
- Non-citizens and private companies with foreign shareholding may hold land “only based on leasehold tenure” and for a term not exceeding 99 years.
- Any grant to a foreigner purporting to exceed 99 years is automatically deemed to confer only a 99-year lease from the 27th August 2010, the commencement date of the constitution.
- Existing foreign freeholds and leases above 99 years, from the effective date of the Constitution, are treated as 99-year leaseholds (often referred to as “conversion” to leasehold).
These constitutional provisions are enforced through land laws and regulations, including rules requiring the conversion of foreign freeholds and the reissuance of titles as 99-year leaseholds.
What is the difference between Freehold, Fee Simple, and Leasehold in Kenya?
Understanding land tenure is vital for any investor in Kenyan real estate.
| Feature | Freehold Tenure (Absolute Proprietorship) | Leasehold Tenure | Fee Simple (Historical/Contextual) |
| Duration | Unlimited/Perpetuity. | Fixed Term (e.g., 33, 50, or a maximum of 99 years for foreigners). | A term under repealed laws, essentially synonymous with Freehold. |
| Ownership | Complete and absolute ownership of the land and all developments thereon. | Right to exclusive possession and use for the fixed term from the land owner (Lessor/Government). | Full, unconditional ownership. |
| Eligibility | Strictly for Kenyan Citizens. | Available to Kenyan Citizens and Foreigners (maximum 99 years). | No longer a primary term in the current Kenyan land law. |
| Governing Law | Land Act, 2012 & Land Registration Act, 2012 | Land Act, 2012 & Land Registration Act, 2012 | Repealed land statutes. |
The Restriction on Agricultural Land Ownership in Kenya Under the Land Control Act?
Foreigners face stringent limitations on owning or dealing with agricultural land, which is deemed a strategic national resource.
- The Land Control Act (Cap 302), Section 6 and 8 designates transactions involving agricultural land (situated outside municipalities, townships, or market areas) as ‘Controlled Transactions’.
- These controlled transactions (sale, transfer, lease for over 7 years, exchange, etc.) are void unless the relevant Land Control Board (LCB) grants consent. The LCB is generally prohibited from granting consent for transactions involving a non-citizen or a company not wholly owned by Kenyan citizens.
- This effectively bars non-citizens and foreign-owned private companies from directly acquiring agricultural land.
- A non-citizen may be exempted from this restriction by the President of Kenya through a notice published in the Kenya Gazette. However, this is a rare process typically reserved for projects of national interest.
Is the Use of Dummy Companies with Local Ownership but a Trust Declaration Indicating Foreign Ownership Legal?
No, this practice is illegal and void, putting the investment at severe risk. It is a non-compliant strategy designed to circumvent clear constitutional and statutory restrictions.
- Foreign investors sometimes attempt to bypass the Freehold and Agricultural Land restrictions by forming a private Kenyan company with local citizens listed as the legal shareholders. The local shareholders then sign a Declaration of Trust (DoT), declaring that they hold the shares (and thus the land) in trust for the foreign investor, who is the beneficial owner.
- This structure directly contravenes the law:
- Constitutional Test for a Kenyan Company: For property ownership purposes, a company is only considered a Kenyan citizen if it is wholly owned by one or more Kenyan citizens.
- Trust Restriction: The Constitution explicitly states that any property held in trust shall be regarded as being held by a Kenyan citizen only if all of the beneficial interests of the trust are held by Kenyan citizens.
- Consequently, the transaction is unenforceable and can be declared void by the courts, leading to the potential loss of the investment. Transparent and compliant legal structuring is always the recommended approach for secure investment.
How can foreigners legally and safely own property in Kenya?
Foreigners who wish to invest in Kenyan property should structure their transactions strictly within the constitutional and statutory framework. Legally compliant options include:
- Acquiring long-term leasehold apartments, townhouses, or commercial units in urban and peri-urban areas, with leases not exceeding 99 years.
- Investing through properly structured corporate vehicles whose land tenure is aligned with shareholding composition and land-use type (for example, public companies, REIT-like structures, or investment funds, subject to specific regulatory approvals).
- Applying, in rare and strategic cases, for presidential exemption to acquire agricultural land, with full legal due diligence and risk assessment.
- Ensuring full compliance with Land Control Board consent requirements, land rate and rent payments, and lease renewal processes.
- Professional legal guidance is essential to avoid void transactions, title disputes, and costly litigation.
I’m a foreigner – what is the safest way to buy property in Kenya?
From a practical, compliance-friendly perspective:
- Target leasehold urban or peri-urban property (residential, commercial, or industrial).
- Avoid informal “workarounds” or dummy structures that contradict Article 65 and the Land Control Act; they may later be declared void and unenforceable.
- Engage a specialized Kenyan real estate and conveyancing law firm early to:
- Perform legal due diligence;
- Structure the acquisition properly;
- Secure all regulatory consents and registrations.
How Njaga & Co Advocates LLP helps foreigners acquire property in Kenya
At Njaga & Co Advocates LLP’s Property and Real Estate Law department, we are widely recognized as a leading conveyancing and real estate law firm in Kenya, with particular strength in guiding foreign investors, expatriates, and diaspora clients through complex property transactions and providing end-to-end legal solutions. Our expertise ensures safe, secure, and transparent acquisition of your assets.
Our Best services are:
- Conveyancing Services: Drafting and reviewing sale agreements, transfers, leases, and charges.
- Due Diligence: Title searches, verification of ownership, and compliance with constitutional and statutory requirements.
- Regulatory Compliance: Guidance on Land Control Act, Land Act (2012), and Land Registration Act (2012).
- Structuring Investments: Advising on lawful company structures and joint ventures for property acquisition.
- Diaspora & Foreign Investor Support: Tailored solutions for expatriates and investors seeking secure property ownership in Kenya.
- Dispute Resolution: Handling property disputes, fraud claims, and title rectifications.
If you are:
- A foreigner or expat looking to buy or develop property in Kenya,
- A diaspora Kenyan considering investing back home, or
- An institutional or corporate investor structuring real estate holdings in Kenya,
We are best placed to assist you.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
