Building in Kenya: A Legal Guide for Property Developers
You came to Kenya to build and sell, not to spend three years in the Environment and Land Court.
Every foreign developer in Kenya is trying to do five things:
- Buy land with a title that holds up.
- Own it through a structure that head office and the bank will accept.
- Get approvals without delay or compliance risk.
- Sell units to buyers whose banks will lend.
- Get the profit home.
Kenyan law shapes all five. Here is what you need to know about each, and where a good advocate earns the fee.
1. Buy land with a title that holds up
Title fraud is Kenya’s oldest property scam: forged deeds, double allocations, land sold by people who never owned it. A confident seller and a nicely printed title deed prove very little. The register tells the truth.
Before you pay a deposit, we:
- Run an official search at the Lands Registry (on Ardhisasa for Nairobi titles) to confirm the owner, the tenure, the years left on the lease, and any charges, cautions or restrictions.
- Check the ground: boundaries, acreage, approved land use, and that the plot is not road reserve, riparian land or public land.
- Verify the seller: a CR12 and board resolution for a company; spousal consent where the property is matrimonial.
- Confirm the land is not agricultural. Under the Land Control Act, consent must be refused for transfers to non-citizens or to companies with foreign shareholders. Without consent the deal is void. That cheap plot “just outside town” is often agricultural land.
- Protect your money: rates and land rent clearances first, and your deposit held by advocates as stakeholders, never handed straight to the seller.
Only then do we move to consents, valuation, stamp duty and registration.
2. Own it through a structure that survives scrutiny
Under Article 65 of the Constitution, a non-citizen may hold land only on leasehold, for no more than 99 years. A grant of a longer term is not void; it is automatically read down to 99 years.
Two points catch developers out:
- Your Kenyan company may count as a foreigner. A company is treated as a citizen only if it is wholly owned by Kenyan citizens. One Chinese shareholder is enough to make it a non-citizen for land purposes.
- Years left matter more than the paper. A lease with 40 years remaining is a 40-year asset, and banks and buyers will price it that way.
You may be advised to put the land in the name of a Kenyan “friend”, driver or paper shareholder. Do not. The nominee becomes the legal owner. If they die, divorce, fall into debt or change their mind, your project becomes their estate’s, spouse’s or creditors’ business. Arrangements built to get around Article 65 also risk being unenforceable when you most need them.
There are lawful options, such as a holding company that takes a leasehold, or a joint venture with a properly drafted shareholders’ agreement. The right one depends on your financing and your exit. Your bank and your head office’s auditors will ask how you hold the land, so the answer should be ready before they do.
3. Get approvals without delay or compliance risk
Before you break ground you will typically need:
- Development permission from the county government under the Physical and Land Use Planning Act, 2019, plus a change of user where the plot is zoned for something else.
- An EIA licence from NEMA for most developments of any scale.
- NCA registration of your contractor and of the project with the National Construction Authority.
Applications stall on incomplete files more often than on anything else. A complete, lawful application is the fastest kind, and the only kind your head office’s compliance team wants to see. We work alongside your architect, planner and environmental consultant so nothing goes in half-done.
4. Sell units your buyers’ banks will finance
Kenyan buyers rarely pay cash. Their banks lend against a title, so a unit with a clear path to its own title sells faster. A unit without one sells at a discount, if it sells at all.
- Sectional titles. Under the Sectional Properties Act, 2020, each apartment gets its own certificate of lease or title. Since May 2021 the Lands Ministry no longer registers long-term leases supported only by architectural drawings, so plan for a registered sectional plan.
- The 21-year rule. A sectional plan can only be registered over freehold land, or leasehold land with at least 21 years left on the parent title.
- Off-plan sales. Use agreements with clear completion dates and delay clauses, and with deposits held in escrow or by advocates as stakeholders. It protects buyers, and it protects your reputation when a delay hits.
5. Get the profit home
Kenya has no exchange controls. Sale proceeds and profits can be sent abroad through commercial banks once taxes are paid and the paperwork is in order. What reaches home depends on the costs and taxes you planned for at the start:
| Cost | Who pays | Rate |
|---|---|---|
| Stamp duty | Buyer | 4% of value (urban), 2% (rural) |
| Capital gains tax | Seller | 15% of the gain |
| Legal fees | Each party | Set by the Advocates (Remuneration) Order, scaled to value |
| Valuation, search and registration fees | Buyer | Fixed and scale fees |
| Rates and land rent arrears | Seller, cleared before transfer | As assessed |
The table covers buying the land. Selling finished units is different: a developer selling units as part of its business is generally taxed on the profit as business income, not under capital gains tax, and tax applies again when profits leave Kenya. Structure decides how much of the margin survives, so settle it before the first purchase, not after the last sale.
Working with Nina & Misaro Advocates
We act for developers and investors from the first site visit to the last sectional title. Working with us means:
- One advocate on your matter from due diligence to final registration.
- Written updates at every stage, with plain-language summaries your head office can act on.
- Signing from abroad made simple. We prepare the powers of attorney and board resolutions your directors in China need. Our principal is a Notary Public and Commissioner for Oaths, so documents can be witnessed and certified in Nairobi.
- Fees agreed in writing upfront, in line with the Advocates (Remuneration) Order.
- Language of business: English.
Sandra Nina Opiyo, Advocate of the High Court of Kenya (admitted 2018), Certified Secretary, Notary Public and Commissioner for Oaths.
Start with one title number
Send us the title number of a plot you are considering. We will tell you what the register shows and what to ask the seller next.
- Office: 90 JGO, 2nd Floor, James Gichuru Road, Lavington, Nairobi
- Hours: by appointment
- WeChat: ninamisaro_law (or scan our QR code)
- Phone / WhatsApp: +254 715 916 458
- Email: ninamisaroadvocates@outlook.com
This article is general information on Kenyan law as at October 2026. It is not legal advice. Please seek advice on your specific transaction.
Legal references
- Constitution of Kenya, 2010, Article 65 and Sixth Schedule, section 8
- Land Control Act (Cap. 302)
- Land Registration Act, 2012 and Land Act, 2012
- Sectional Properties Act, 2020
- Physical and Land Use Planning Act, 2019
- Environmental Management and Co-ordination Act (Cap. 387)