Kenyan laws on Foreign Ownership of Land

Ownership of Land by Foreigners in Kenya 

       

The Kenyan Constitution and the Lands Act (Act No. 6 of 2012) and the Land Registration Act (Act No. 3 of 2012) provide that foreigners or non-citizens can only own land under a leasehold tenure not exceeding ninety nine (99) years.  In other words, it is only Kenyan citizens who can hold land on freehold tenure basis.  

Chapter 5 of the Kenyan Constitution is that make provisions of Land and Environment. Under Article 65(1) the Constitution, ‘person who is not a citizen may hold land on basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety nine years.’ Under subsection (2) thereof, if any provision in any agreement, deed, instrument or any other document of whatever nature which purports to confer a non-citizen an interest in land greater than a ninety nine (99) year lease, ‘the provision shall be regarded as conferring on the person a ninety (99) year leasehold interest, and no more’.    

Under sub-article (3) thereof:

• a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and
• property held in trust shall be regarded as being held by a citizen only if all the beneficial interest of the trust is held by people who are citizens.

In effect, private companies whose shares are not wholly owned by Kenyan citizens cannot own freehold land.  Moreover, a trust cannot be form to obviate this requirement.  

The Kenya Constitution was promulgated on 28^th August, 2010 (the effective date).

Under Article 8(1) in the Sixth Schedule to the Constitution, on the effective date, any freehold interest in land in Kenya held by a person who was not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the state shall grant to the person a ninety nine (99) years at a peppercorn rent.

This means that from the effective date, any freehold land or absolute proprietorship held by a foreigner was truncated to a ninety nine (99) years lease with a rent of a peppercorn.  The Government will in future call for the surrender for leasehold titles for more than 99 years or freeholds held by foreigners for truncation to 99 years with effect from the effective date. 

Under sub-article 2 thereof, on the effective date, any other interest in land in Kenya greater than a ninety nine (99) year lease held by a non-citizen shall be converted to a ninety nine (99) year lease.    This covers the 999 years leases that were initially granted to the white settlers under the Crown Land Ordinance of 1902 and 1915 as well as lease for flats or apartment over such properties.    

 Under section 13 of the Land Act, if a leasehold title expires by effluxion of time, the Land Commission shall offer to the immediate past leasehold owner thereof pre-emptive rights to be allocated the land provided that such lessee is a Kenya citizen and that the land is not required by the national or the county government for public purposes. This provision implies that a non-citizen cannot be granted an extension of lease after expiration of the ninety (99) years leasehold interest.  

It should also be noted that, under the Land Control  Act (Chapter 302 of the Laws) of Kenya, a non-citizen can only own agricultural land if it is an initial grant from the Government or after obtaining a presidential exemption  to acquire the land under section 24 thereof. It should be noted that a public company registered in Kenya is not affected by this restriction even where some of its shareholders are foreigners.  However, for a private company to own agricultural land in Kenya, except in the cases stated before, all of its shareholders must be Kenyan citizens.  

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The Salient Features of the Proposed Traffic (Amendment) Act, 2012

The Salient Features of the Proposed Traffic (Amendment) Act, 2012 

Please note that there is a proposal to amend the Traffic Act through the Traffic (Amendment) Act, 2012.   The amendment bill has already been proved by the Cabinet and is awaiting debate in Parliament.

Objects of the Amendment Bill  

The objects of the proposed new regulations are as follows:-

(i)      To amend the Traffic Act (Cap.403) to vest ownership of motor identification plates on the Kenya Revenue Authority and to require surrender of the plates to the Registrar of Motor Vehicles once a motor vehicle is transferred from one person to another.

(ii)      To enhance the penalties for various traffic offences in order to deter commission of those offences and consequently minimize loss of lives on Kenyan roads.

(iii)    To abolish the Traffic Police Department in order to vest enforcement of traffic laws and regulations on all police officers.

Key Highlights of the Traffic Rules 

(a)      The Administrative Unit of the Kenya Police Service known as the Traffic Department would be scrapped and all police officer will be mandated to enforce traffic rules and regulations. 

(b)        All motor registration number plates will be owned by the Kenya Revenue Authority (KRA).

(c)       In light of (b) above, if the ownership of a vehicles changes, the registration number plates must be surrendered to the registrar of motor vehicles.  Failure to comply with this rules will attract a fine not exceeding Kenya Shillings Thirty Thousand (KShs. 30,000/-) on conviction.

(d)       An identification number plate shall become invalid if the insurance cover of a motor vehicle to which it relates expires and is not renewed within thirty (30) days from its expiry date.  Owners of the offending vehicles shall be required to surrender the identification number plates to KRA in failure therefore be liable for criminal sanctions.

(e)       All licensed motor vehicle drivers shall be required to undergone mandatory eye tests every three (3) years, and a medical practitioner's report will need to be presented to KRA when one is applying for the renewal of the licence.   Anyone who fails to comply with this requirement will be disqualified from holding a driving licence for at a period not exceeding three (3) years.

(f)          Driving under the influence of any substance would attract a penalty of ten (10) years in jail or a minimum of Kenya Shillings Five Hundred Thousand (KShs.500,000/-) fine, or both.

(g)        Causing death through reckless or dangerous driving shall be a gross criminal offence and on conviction, the courts will be at liberty to convict offenders to life imprisonment.  

(h)         Unauthorised driving of a public service vehicle shall attract a penalty of ten (10) years in jail or a minimum of Kenya Shillings Five Hundred Thousand (KShs. 500 000/-)  in fine, or both.

(i)       Overlapping, driving on pavements and pedestrian walkways or using petrol stations to avoid traffic shall land an offender a jail term of at least three (3) months on conviction or a fine of at least Kenya Shillings Thirty Thousand (KShs. 30 000/-), or both such imprisonment term and fine.

(j)         In case of violation of the prescribed speed limits, on conviction, an offender shall be liable to have their licence cancelled for at least three years.

(k)        The yearly licences have been scrapped and all licences shall be issued for a term of three (3) years.

(l)       The Inspector General of Police shall be required to designate areas where police are allowed to erect roadblocks.

(m)      There will be road signs erected next to traffic signs showing the prescribed speed limits.

(n)      Passenger Service Vehicles’ (PSV) drivers and conductors would be required to wear badges and blue and maroon coloured uniforms respectively.  In addition, the PSV drivers would be required to do a compulsory competence test every two (2) years.

(o)      All Motorcycles riders shall be required to take out a third party insurance policy and must wear helmets and reflector jackets.  Riders shall not be allowed to allow ferry more than one (1) passenger at a time.

It is expected that when the new regulations are enacted in to law, they will help in streamlining the transport sector and reduce road carnage in Kenyan roads.

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Copyrights Protection under Kenyan Laws

The Copyright Act, (Act No. 12 of 2001), is the main legislation dealing with administrative and enforcement structures and mechanisms for copyright protection and related rights in Kenya.  It came into force on 1st February, 2003.
The main features of the Copyright Act, inter alia, include:-

1.  The Establishment of the Kenya Copyright Board (Kecobo), which is the body mandated with the overall administration and enforcements of copyright as well as the related rights.  Kecobo has copyright inspectors and special prosecutor who are mandated to investigate and prosecute copyright infringement cases.
2.  Moreover, Kecobo has introduced the anti piracy security device which are used to identify the legitimate products especially in the audio and audio-visual works. This provision is intended to help in the identification of works.  Trading in works without the anti piracy security device amounts to an offence.  Kecobo is also mandated to licence and supervise the activities of the collective management societies (also known as the Reprographic Rights Organisation) provided for in the Act. These include, the Music copyright Society of Kenya (MCSK) which is a body mandated to collect royalties in public performance and broadcasting on behalf of its members and distribute the same to members.  These also include Kenya Reprographic Rights Organization (KOPIKEN), which seeks to protect and promote authors and publishers of literary works. Kecobo works with other related government agencies like the Kenya Revenue Authority and the Anti- Counterfeit Agency to ensure proper systems are put in place for copyright and related rights protection.  
3.  The Act grants the owner of copyrighted work exclusive economic and moral rights over the works. These include exclusive rights of the reproduction or distribution of copyrights rights for any economic gain, exclusive rights of communication or broadcasting of the work to the public, and exclusive rights to import and export the copyrighted work.
4.  The Act has both civil and criminal remedies and sanctions for the enforcement of copyright and related rights. Thus, the owner of copyrighted work is mandated by the Act to institute civil suit for a claim of compensatory damages against the offender for illegal reproduction or use of the work. Under the criminal sanctions, copyright is infringed where one is found in possession of at least two counterfeit copies of the copyrighted work.    The word “copy” in the Act is defined to mean a reproduction of a work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means.   
5. There are specific provisions for Anton Piller (search and seizure) orders in order to ensure protection of evidence and where the offender is likely to abscond.
6. The Act outlaws activities that are likely to encourage counterfeiting and piracy such as circumvention of technological devices used to protect copyright rights or the removal of rights management systems.

The maximum fine payable under the Act is Kenya Shillings 800 000/= (about US$ 10 000) and a maximum jail term of 10 years.

The Act provides for the following exemptions- also known as “fair dealing’:
Utilization of copyrighted works for purposes of scientific research, private use, review or reporting of current events subject to acknowledgement of the source;The inclusion of a collection of literary or musical works of not more that two passages from the work in question for use in registered school or university;
Reproduction or a work by or under the direction or control of the government or by public libraries, non-commercial documentation centres and scientific institutions for public use;
Computer programmes can be reproduced for purposes of correction or error, for back-up and for customisation or for purpose that is not prohibited under any licence or agreement whereby the person is permitted to use the programme or software.

Categories of copyright works to be registered by Kecobo include:

•     Musical;
•     Audio Visual;
•     Literary like charts tables and computer programmes;
•     Artistic;  
•     Sound recording ;and
•     Broadcasts.

Please note that literary, musical or artistic works is eligible for copyright protection if it meets the following conditions:-

(a) The work must be original;
(b) The work must be in written, recorded or in material form (that is, it      should neither be oral nor verbal in nature).

The Procedure for the Copyright Registration in Kenya
Only original literary, artistic, musical, audio visual works, sound recordings and broadcasts are eligible for copyright protection.

For any of the above works to be eligible for registration:

1. The work must of original authorship that is, not copied from somebody else.  
2. Application for registration must be in the prescribed form which can be obtained from Kecobo. The  applicant will be required to fill in  his name, physical and postal addresses and the category of the works- either literally, artistic, musical or audio visual.;
3. The applicable must attach two copies of the works, where applicable, to the application;
4. The work must be in tangible form including digital form e.g., books, cassettes, CD, flash disc, VCD,CD or DVCD; and
5. The duly completed application form must be witnessed by a commissioner for oaths and accompanied by the required fees of about KShs. 600/-.

A agent employed to register work  will be require to produce identification documents as well as letter of authority to act as agent from the original owner of the work.

On receipt of the application, Kecobo may, after making such inquiry as it may deem fit, enter the particulars of the work in a Copyright Register.The Certificate of Registration will then be issued to the author after registration.
The whole process takes about one month to two months.
Copyright protects work for duration of fifty (50) years after the death of the author. After this period, anybody is free to reproduce it without permission from the author or publisher. In case of joint authorship, fifty (50) years aforesaid counts from the date of death of the last author. 
The sound recordings and broadcasts are protected for 50 years after the end of the year in which the recording was made, or the broadcast took place, respectively.
Kenya also a signatory to the following treaties on copyright rights protection:

•     The Berne Convention, 1886;
•     The Rome Convention, 1961;
•     WIPO Performances and Phonogrammes Treaty, 1996;
•     WIPO Copyright Treaty, 2001; and
•     The Trade Related Aspect of Intellectual Property (TRIPS), 1994.