Land for a Kenyan School as a Foreign Investor: Leasehold Limits and Planning Permission

A school is a land-hungry business: classrooms, play areas, boarding or transport space, and a building the county will allow children to occupy. For a foreign investor, the first legal question is not the curriculum or the school licence. It is whether the investor, or the company it controls, is allowed to hold the land at all. This article sets out the rules on land for a school in Kenya as at 24 October 2026 and how a project can be structured around them.

Land for a school in Kenya: leasehold only, for up to 99 years

Article 65(1) of the Constitution says a person who is not a citizen may hold land only on leasehold, and the lease must not exceed 99 years. Article 65(3) treats a body corporate as a citizen only if it is wholly owned by citizens. In practice, a company with any foreign shareholder is not a citizen for this purpose. A foreign-owned school operator, or a Kenyan company with even a minority foreign shareholder, therefore cannot hold freehold land and cannot hold a lease beyond 99 years. Our article on foreign ownership of a school in Kenya explains how the same rule interacts with the ownership of the operating company.

Controlled land: an extra approval near the border and the coast

Section 12A of the Land Act, 2012 (as shown in the Kenya Law consolidation dated 4 November 2025) defines “controlled land” as land within 25 kilometres of the inland national boundary, land within the first and second row from the high water mark of the Indian Ocean, and any other land declared controlled under a law. An “ineligible person” includes an individual who is not a Kenyan citizen, a foreign government, and a body corporate that has non-citizens as shareholders, which is deemed a non-citizen. Section 12A(2) says no transaction in controlled land, including a transfer for consideration or by gift, to an ineligible person may be dealt with without the prior written approval of the Cabinet Secretary. A school site in Mombasa, Kilifi, Kwale or a border town should be checked against this definition before any money moves.

Public land and lease expiry

If the site is public land allocated through the National Land Commission, two provisions matter. Section 12(6) of the Land Act says that when a lease granted to a non-citizen expires, terminates or is extinguished, the interests and rights in the land revert to the national or county government. Section 13(1)(a) gives the lessee a pre-emptive right to allocation of the land on expiry only where the lessee is a Kenyan citizen. A foreign-owned school on public land should therefore assume it has no renewal right, and should price its investment over the lease term. Our guide to public-private partnerships for foreign developers covers the public land route in more detail.

Structuring the land holding

• Lease from a Kenyan owner. The operating company takes a registered lease of up to 99 years from a private owner. This is the simplest compliant route, and the lease term, user clause, renewal option and rent review should be negotiated deliberately.
• Kenyan landholding company. A wholly Kenyan-owned company holds the land and leases it to the foreign-owned school operator. This works only where the Kenyan ownership is real. In our view, nominee arrangements used to disguise foreign ownership invite challenge under Article 65 and put the investment at risk.
• Align the lease with the school registration. A private school’s registration is provisional first, so a lease should survive a refusal or delay without trapping the operator in rent for an unusable building.

Planning permission and the school licence

The land has to be lawful for the use. Section 57 of the Physical and Land Use Planning Act, 2019 says a person shall not carry out development within a county without a development permission granted by the county executive committee member. Starting without permission is an offence carrying a fine of up to KES 500,000, imprisonment of up to two months, or both, and the county may require the land to be restored. The Third Schedule lists change of user, building plans and the siting of education institutions among the matters of development control.

The Basic Education Act, 2013 adds its own gate. Section 50(2)(c) says no private school shall be registered if its premises, or any part of them, are unsuitable for a school, and section 52(1)(d) requires a private school to maintain premises that meet occupational health and safety regulations and building standards. A site that cannot obtain a change of user for a school will not support a registration application, so the planning enquiry belongs in the land due diligence, not after it. The Basic Education Bill, 2026 would keep this approach: clause 26(1)(c) requires suitable premises to accommodate the number, age, gender and security of learners. The Bill was at First Reading in August 2026, so it is not law.

A due diligence checklist

• Official search to confirm the title, the owner and any charges.
• Check whether the land is controlled land or public land.
• Confirm the zoning and user, and the change of user route if needed.
• Confirm the lease term is within Article 65 and the user clause permits a school.
• Check access, utilities and building approvals for existing structures.
• Record the Kenyan or foreign ownership of every shareholder in the holding chain.

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.