I have identified an appealing beachfront property which I intend to buy to construct a retirement home. However, there was a presidential directive issued decades ago requiring permission from the President before buying such property. Is the directive still in force?
Hannah, Nairobi.
Permission from the President is no longer required before purchasing a seafront property at the Coast following a ruling by the Court of Appeal.
A directive issued by President Jomo Kenyatta in 1970 required buyers of first and second row beach properties to seek a Presidential clearance and consent.
Not long ago, then Court of Appeal judges Milton Makhandia, Hannah Okwengu and Fatuma Sichale ruled that the Presidential consent had no legal basis.
“Neither the new land laws nor the repealed Registered Land Act, Registration of Titles Act nor Land Titles has such provisions (Presidential assent and clearance),” the judges ordered.
Before the case was filed at the Court of Appeal, High Court Judge Mary Kasango had ruled as unconstitutional for the President to vet transactions on beach properties. “Presidential consent is an illegal and discriminatory practice against owners of first and second row beach plots and is therefore null and void,” she ruled.
The orders prohibited the Attorney General and Commissioner of Lands from requiring Presidential consent as a pre-condition to transfer beach plots.
LSK officials, led by then Mombasa branch chair Mohammed Balala, filed the petition at the High Court against the Attorney-General and Commissioner of Lands. Balala argued there was no law to the effect that the President’s permission was required to transact on beach plots.
When delivering the High Court ruling, Justice Kasango said the decree was an appendage of yesteryears, when presidential decrees were law. “The Presidential decree has no place in the Kenyan society today, since it is discriminative in nature,” Justice Kasango said.
Following the High Court ruling, the AG moved to the Court of Appeal which the three-judge Bench dismissed arguing it had been overtaken by events.
Previously, land officials rejected applications to transfer beachfront properties if presidential consent was not obtained.
The property transactions were for decades governed by an array of statutes containing provisions and regulations relating to the acquisition and disposition of interest in land. Conveyancers (property lawyers) had to go through more than five Acts to find which land regime governed the transactions they wanted to engage in.
The laws were revoked after Parliament passed three land laws to provide for a comprehensive registration system.
Ayodo is an Advocate of the High Court of Kenya