Controlled Versus Uncontrolled Land in Kenya: What Buyers and Sellers Need to Know

Not every land deal in Kenya can simply be signed and registered. Where land is agricultural land in a land control area, a sale, lease, charge or similar dealing needs the consent of a Land Control Board. This article explains controlled land in Kenya, how it differs from uncontrolled land, how consent is obtained and what happens if the parties proceed without it.

The Legal Framework

The Land Control Act (Cap. 302) is an Act “to provide for controlling transactions in agricultural land”. Section 3 lets the Cabinet Secretary apply the Act to an area by Gazette notice, creating a land control area, and section 5 establishes a land control board for each area or division. Section 6 lists the transactions that need consent. The Act is the latest in force; the version on Kenya Law is the revision as at 31 December 2022.

What Counts as Agricultural Land

Section 2 defines agricultural land as land that is not within a municipality or township, an area that was a township or trading centre at any time after 1 July 1952, or a market. Land in the Nairobi Area or any municipality, township or urban centre can still be declared agricultural land by the Cabinet Secretary by Gazette notice. The definition excludes land that, because of a condition or covenant in its title or a limit imposed by law, may not be used for agriculture or must be used for a non-agricultural purpose.

A parcel’s status is therefore not always obvious from its location. Land on the edge of a growing town may or may not be controlled, depending on its history, its title and whether it lies within a designated land control area. Check the title and ask the local land control board in writing before money changes hands.

Transactions That Need Consent

Under section 6(1), each of the following is void for all purposes unless the land control board for the area has consented:

• the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with agricultural land in a land control area (the Act defines “mortgage” to include a charge);
• the division of such land into two or more parcels held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 apply; and
• the issue, sale, transfer, mortgage or other disposal of or dealing with any share in a private company or co-operative society that owns agricultural land in a land control area.

Section 6(2) confirms that declaring a trust of such land is a dealing for these purposes.

Applying for Consent

Section 8(1) requires the application, in the prescribed form, to be made to the appropriate land control board within six months of the making of the agreement for the controlled transaction. The High Court may extend that period where it considers there is sufficient reason. The board either gives or refuses consent, and subject to the appeal rights its decision is final and cannot be questioned in any court (section 8(2)).

Section 9(1) tells the board to consider the effect on the economic development of the land and on standards of good husbandry. It acts on the principle that consent should generally be refused where, for example, the transferee is unlikely to farm or develop the land well, already has sufficient agricultural land, or where the terms, including the price, are markedly unfair to one party. The board must refuse consent where the land is to be sold, transferred, leased, exchanged or partitioned to a person who is not a Kenyan citizen, a private company or co-operative society all of whose members are citizens, group representatives, or a state corporation.

Refusal and Appeals

If the board refuses consent, the applicant may appeal to the provincial land control appeals board within thirty days of the decision being delivered or posted (section 11), and from there to the central land control appeals board within a further thirty days (section 13). If the appeals fail or time runs out, the agreement becomes void (section 9(2)).

Consequences of Proceeding Without Consent

The consequence is stark. A controlled transaction without consent is void for all purposes, not merely voidable. The registrar must refuse to register an instrument effecting a controlled transaction unless satisfied that any required consent has been given or that none is required (section 20(1)). Money paid under a transaction that becomes void is recoverable as a debt from the person to whom it was paid (section 7). A person who pays or receives money, or enters or remains in possession of land, in furtherance of an avoided transaction commits an offence (section 22). Lenders therefore ask for proof of consent before accepting agricultural land as security.

Exemptions

Section 6(3) removes two categories from the consent requirement: transmission of land under a will or on intestacy, unless the transmission would divide the land into two or more parcels held under separate titles, and transactions to which the Government or the Settlement Fund Trustees is a party (or, for Trust land, a county council). Under section 24, the President may by Gazette notice exempt particular land, shares, transactions or persons, and under section 23 may prohibit controlled transactions altogether.

Uncontrolled Land

Land that is not agricultural land, or that is not within a land control area, is uncontrolled. Dealings in it follow the ordinary conveyancing process without a consent step, which is one reason urban transactions usually complete faster than rural ones. The classification can change as areas are gazetted, so confirm the position at the time of the transaction.

Frequently asked questions

This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.