The Land Laws (Amendment) Act, (Act No. 28 of 2016) (the “Act”) which came into effect on 21^st September 2016, introduced the requirement for the Cabinet Secretary’s consent in transactions involving controlled land. In the newly introduced section 12A of the Land Act, 2012, controlled land is defined as land which is:-

1. within a zone of twenty-five kilometers from the inland national boundary of Kenya;
2. within the first and second row from high water mark of the Indian Ocean; and
3. any other land as may be declared controlled land under any law or statute.

The Act provides that no transaction in controlled land, including a transfer for a consideration or by way of trusts, gift inter vivos or otherwise to an ineligible person, shall be dealt with without the prior written approval of the Cabinet Secretary. An ineligible person is defined as either:-

1. an individual who is not a Kenyan citizen;
2. 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
3. a body corporate which has non-citizens as shareholders shall be deemed to be a non-citizen.

The effect of this section of the Act is therefore to limit transaction in controlled land by non-citizens. This is seen as a re-introduction of the presidential consent previously required for transaction in the first and second row beach plots. The presidential consent requirement was introduced through a verbal decree of the founding president and was successfully challenged for being unconstitutional in the year 2012. In the case of Mohamed Balala & 11 Others vs Attorney General & 7 Others [2012] Eklr the court held that there was no statutory backing for the said requirement and therefore its implementation was unconstitutional.

However, with the coming into force of the Act, transactions in controlled land (which includes first and second beach row plots) involving “ineligible persons” will be subject to the Cabinet Secretary’s consent. Under the Act, the Cabinet Secretary is required to seek the approval of relevant authorities before approving or denying consent. However there are no specific timelines stipulated within which a decision on the consent application should be issued; nor does the Act provide for appeals against the Cabinet Secretary’s decision.

Although the reason for the re-introduction of the consent requirement is still unclear, the implementation of the section has been suspended following the issuance of conservatory orders pending the hearing and determination of Petition No. 19 of 2016, Malindi Law Society vs Attorney General of Kenya and Another.