Introduction
Restricted land refers to the categories of land that are not available for alienation as well as land whose ownership, management and/or control are strictly regulated. It is important for prospective purchasers to undertake thorough due diligence at different relevant national and local authority registries to ensure that the attached conditions are in line with their intended use and development of the land, and whether the land is available for purchase.
Highlights
Restricted land includes Public land held in trust by the National or County Governments. It also refers to gazetted land located in specially protected areas including Forests, Parks Game Reserves, Land next to Water Sources and bodies(Riparian land), Military Installments like the Kenya army, navy and airforce barracks, as well as airports. Others include Roads and road reserves, sewerage, rail and electricity lines
These lands are either unalienable, or have varying conditions of ownership, and these conditions often extend to land surrounding them. For instance, Military bases are inalienable, but land near them are subjected to strict regulations including how tall buildings can be, for national security reasons. There are also novel areas known as Special Economic Zones (EPZ). These are zones demarcated by law for specific purposes like industrial development and their owners have benefits like tax incentives to lease them.
Regulation
There are several regulators with both distinct and overlapping mandates to ensure that prohibited and restricted areas are not encroached. At the municipal level, the County Governments and City Councils are responsible for ensuring that all developments are in line with the town/city/county’s Master Plan, as well as authorized land use. They are empowered to demolish buildings on road reserves and riparian land, or those constructed without permits.
At the National Level, several Acts like the Environment Management and Coordination Act , the Environmental Management and Coordination (water quality) regulations 2006, Surveys Act , the Physical Planning Act, Water Resource Management Act, 2007, the Kenya Defence Forces Act, Kenya Ports Authority Act among others, regulate land ownership and management.
The main bodies charged with the protection of Riparian land are NEMA & WARMA. The National Environmental Management Authority (NEMA) is the government body charged with, among others, ensuring that buildings do not interfere with their surrounding environment. Additionally, the Water Resources Management Authority (WARMA) is charged with the preservation of, and sustainable management of the nation’s rivers, lakes, streams and water catchment areas. Since the inception of both NEMA and WARMA, all developers whose proposed buildings are near forests, rivers, watersheds etc, have been required to first seek their approval before proceeding with construction.
The case of Green
Park Estate
The developers of Green Park Estate began construction in Athi River after receiving approval form both bodies in 2006. It was not until 7 years later that the regulators raised concerns that the estate’s wall is 25 metres upstream and 30 metres downstream from River Athi, which places it on riparian land. After a protracted litigation that saw the matter pass through multiple courts, the Court of Appeal ruled that Green Park Estate was not located on riparian land but on the river’s flood plains. It also noted that the issue could have been raised when approval was sought back in 2006. It proceeded to declare that the development was lawful and directed that the regulators cease any scheduled demolitions.
Why is this Important?
Unlike Green Park Estate, many developers have suffered substantial loss after buying and investing in land located on restricted land including road reserves and riparian land, where no construction is permitted.
In other instances, individuals have lawfully bought land but failed to obtain construction approval from the required authorities, leading to demolitions or hefty fines. Furthermore, some parties end up buying buildings whose developers never obtained the requisite permits.
It is thus important to know which permits/approvals are required before purchasing real property. These could include:
- Approval from the Kenya Railways Corporation for land near railways, SGR
- Approval from the Kenya Airport authorities for land surrounding airports, airstrips
- Kenya Defence Forces approval for land near military installments i.e Eastleigh
- KENHA , KeRRA, or KURRA approval for land located near road reserves.
- The Approval of Kenya Ports Authority for land near beaches, waterways.
- Approval from KWS for land near forests, game parks and game reserves.
