KENYA Law and Practice Contributed by: Mary Waithiegeni Chege, Mary Anne Wachira and Joy Odhiambo, EMSI & Associates
Land Ownership A key restriction on land ownership is that for- eign nationals can only have a leasehold of up to 99 years over non-agricultural land. Prior to the installation of power generation infrastructure, development permission needs to be obtained under the Physical and Land Use Planning Act, and agricultural land needs to be rezoned with a change of user effected from agricultural to industrial purposes (eg, solar power plant). Protection From Expropriation The Constitution of Kenya protects all persons from deprivation of property. It provides that no property of any description shall be compulsorily taken possession of, and that no interest in or right over property of any description shall be compulsorily acquired, except where it is nec- essary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utili- sation of any property in such manner as to pro- mote the public benefit. Compensation should be made promptly and in full. The Constitution provides that courts may grant relief in the form of an order for compensation where it is deter- mined that there has been a denial, violation or infringement of a right or fundamental freedom enshrined in the Bill of Rights, or a threat thereto. These provisions are reiterated in the Foreign Investments Protection Act, which provides that no approved enterprise or any property belong- ing to such enterprise shall be compulsorily tak- en possession of, and no interest in or right over such enterprise or property shall be compulsorily acquired, except in accordance with the relevant law and subject to the prompt payment of full compensation. Finally, the Land Act, 2012 guides the process to be followed for compulsory acquisition and
compensation upon the exercise of due dili- gence, which should include a final survey and the determination of acreage, boundaries, own- ership and value. Notably, the Land Act clarifies that the National Land Commission should make payment of the compensation to all relevant per- sons before taking possession of the land. General Incentives These are contained primarily in the Foreign Investments Protection Act and the Invest- ment Promotion Act. “Investment” is defined to include contributions of local or foreign capital by an investor, including the creation or acqui- sition of business assets by or for a business enterprise, covering the expansion, restructur- ing, improvement or rehabilitation of a business enterprise. Investment Certificate holders are entitled to an easier licensing regime, including: • support from the Kenya Investment Authority for various licence applications, from various national and sub-national governments and agencies; • certain categories of work permits and dependant passes for expatriate staff and their families; and • incentives under the Nairobi International Financial Centre Act, 2017 regime, which include: (a) exemption from any nationalisation or expropriation measures or any restrictions on private ownership; (b) freedom to repatriate profits and realise investments; (c) freedom to recruit and employ staff of their choice on such terms as they wish to agree, subject to work permit provisions and any international treaty obligations entered into by the government of Kenya
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