The Effect and Purpose of Article 65 of The Constitution of Kenya & Analysis of Malindi Law Society vs the Attorney General & Another (2021) eKLR.
To quote Justice Nyamu in Richard Nduati Kariuki vs. Honourable Leonard Nduati Kariuki& Another  2 KLR 356, the constitution is a living document. It is a house with many rooms, windows and doors. It is conservative enough to protect the past but flexible enough to advocate new issues and the future.”
For the past 5 years the High Court in Malindi Law Society vs the Attorney General & Another (2021) eKLR was faced with a Constitutional petition challenging the validity and constitutionality of sections 38, 48, 61 and 98 of the Land Laws (Amendment) Act.
Finally, on 29th October 2021, a three Judge Bench of the High Court concluded the matter and made a determination declaring inter alia that foreigners have no pre-emptive rights over leasehold lands and that the concept of “controlled land” brought by section 47 of the Land Laws (Amendment) Act (hereinafter called “the Amendment Act”) was unconstitutional.
The Malindi Law Society filed a Petition dated 6th October 2016 after the President assented to the Land Laws (Amendment) Bill 2015 on 31st August 2016. The Bill sought to amend various laws relating to land. In the petition, numerous issues such as lack of public participation, discrimination and property rights were argued by the Petitioner who sought to invalidate the Amendment Act.
One of the Petitioners’ main allegations was that the effect of the amendments sought by Section 38 of the Amendment Act would be akin to amending the Constitution through the back door and therefore trample on various rights, privileges and obligations acquired by land owners. Other arguments raised by the Petitioners were that the provisions of sections 47 and 48 of the Amendment Act were discriminatory since other than the Constitutional restrictions as to the period a non-citizen can hold land, there was no other restriction for ownership of land by non-citizens.
The Petitioners challenged the lack of pre-emptive rights by foreigners by alleging that the Respondents attempted to amend and redefine the protection of the right to property as provided under Article 40 (1) and 60 of the Constitution.
The Petition was opposed by the Respondents who stated that before the Bill received the presidential assent, it had gone through the necessary parliamentary processes and there was adequate public participation. The Respondent further argued that the right to property is not absolute and that ownership of land by foreigners are subject to the regulatory parameters which the Amendment Act sought to address. On the aspect of controlled lands, the Respondent contended that it was essential to define certain controlled lands due to the security issues revolving around the movement of people and goods in and out of Kenya’s international borders.
In view of the facts and circumstances of the case and the submissions advanced by the parties, the High Court analyzed various issues but the substance of the petition was on the constitutionality of Sections 38, 47, 61 and 98 of the Land Laws (Amendment) Act and the concept of pre-emptive rights by non-citizens over leasehold land.
D. Decision and Reasoning of the Court
On whether Parliament can enact any laws relating to land upon expiry of the time envisaged under Article 68 (c) (i)-(vii) of the Constitution, the Court noted that the National Land Commission Act, 2012 and the Land Act, 2012 came into operation in 2012, within the prescribed Constitutional time frame. The Court further held that there is no provision in law which bars Parliament from amending statutes that it had previously enacted, from time to time.
Pertaining to the amendments sought to be brought by section 38 of the Amendment Act, on the issue of investigating historical land injustices by the NLC, the Court held that the said amendment sought to give effect to Article 67 (2) of the Constitution which aimed at investigating injustices against Kenyans and not the non-citizens hence the said amendment was constitutional.
With respect to the amendments under section 47 (2) of the Amendment Act, the Court held that the introduced concept of controlled lands had far reaching implications on ownership rights to property and there was no reasonable justification for the said provisions on property rights. The said amendment sought to give the Cabinet Secretary power to approve transactions over the defined controlled lands. On this basis the Court held that the said section was unconstitutional.
With respect to section 48 of the Amendment Act which denies foreigners pre-emptive rights over leasehold land, the Court indicated that Article 65 of the Constitution limited the rights of non-citizens to hold land on the basis of leasehold tenure of 99 years only. From the above premise, it was the Court’s conclusion that the lack of pre-emption rights by non-citizens is reasonable and justifiable.
The overarching theme in this petition was that unlike Kenyan citizens, foreigners don’t have pre-emptive rights over leasehold lands held by them. Such limitation on their rights is constitutional and within the legislative prerogative of parliament.
One the other hand, the concept of controlled lands which would interfere with Kenyans’ property rights was unconstitutional, null and void.
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