Columnists

Why property deals next to borders must get minister’s nod

busia

The Busia one-stop border post at the Kenya-Uganda crossing. FILE PHOTO | ISAAC WALE | NMG

The land market cliché of “willing seller-willing buyer” doesn’t always hold true. For good reasons. Those who have been to our Indian Ocean seashore must have noticed how easily motorboats from the high seas can access our coastline, giving those aboard entry into mainland Kenya.

Similarly, most of our international boundaries are rather open, save for the policed zones next to the formal border control posts. It’s so between us and Ethiopia, Uganda and even Tanzania.

Border communities may not even know when they cross these boundaries as they move animals in search of pasture, or even visit their kin.

But ponder over eventualities where those with covert plans were able to not just enter, but also purchase property, near our international boundaries, and set operational bases. With such strategic territorial advantage, they’d move in and out at will, posing avoidable security threats.

Informed by this possibility, policy and legal drafters embedded pre-emptive provisions in the law. Therefore, not just anyone is free to purchase, or even transact, on land within some specified areas, deemed controlled.

This is an aspect that should interest conveyancing lawyers and real estate movers. Lack of depth may box them into circumstances that frustrate lucrative transactions.

Section 47 of the Land Laws (Amendment) Act of 2016, in amending Section 12 of the original Land Act of 2012, provides that controlled land is land either within 25km from any inland boundary of Kenya, or land within the first or second row from the high water mark of the Indian Ocean, or any other land that may be declared controlled.

Having defined controlled land to be so, the law proceeds to provide that no land transactions, including transfer to an ineligible person, shall be processed without the prior approval of the Cabinet Secretary responsible for Lands.

And this approval must be in writing. In making a decision on whether or not to approve a transaction over controlled land, the Cabinet Secretary is required to seek the approval of relevant authorities. Within this context, it’s easy to deduce that, among others, our security agencies would be consulted.

SIMPLE TECHNICALITY

So, who is an ineligible person in the above context? The law provides that ineligible persons are individuals who are not citizens of Kenya, or governments of a country other than Kenya, or the political subdivisions of a country other than Kenya, or agents of such countries or subdivisions.

Ineligible persons also include body corporates with shareholders who are non-citizens. So all such entities cannot have dealings on the land specified above unless there’s prior approval.

In practice, though, unless there’s disclosure, it’s difficult for lawyers and real estate movers, or even land registry officials, to easily identify transactions presented for dealings over controlled land.

But the law provides no reprieve for ignorance. So it behoves us to beware and observe this simple technicality.

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