CONVEYANCING NOTES

The Land Act 2012

Section 2 – Interpretation
 A charge means any interest in land securing payment of money or money’s worth, or the fulfilment of
any condition, and includes a sub charge and the instrument creating a charge,
Including:
a. An informal charge, which is a written and witnessed undertaking the clear intention of which is to
charge the chargor’s land, with the repayment of money or moneys worth obtained from the
charge.
b. A customary charge is a type of informal charge whose undertaking has been observed by a group
of people for an indefinite amount of time and is considered as legally binding to such people.

 Compulsory Acquisition - means the power of the State to deprive or acquire any title or other interest
in land for a public purpose subject to prompt payment of compensation

 Co-tenancy - means the ownership of land by two or more persons in undivided shares and includes
joint tenancy or tenancy in common.

 An easement means a non-possessory interest in another’s land that allows the holder to use the land
to a particular extent, to require the proprietor to undertake an act in relation to the land, or to restrict
the proprietors use to a certain extent. And shall not include a profit.

 Freehold means, the unlimited right to use and dispose of land in perpetuity, subject to the rights of
others and regulations by Government.

 A lease means the granting, with or without consideration, by the proprietor of the exclusive right to
possession of their land, and includes the instrument making the grant, the right so granted and any
sublease, but does not include an agreement for lease.

 Lessor – Person granting the lease

 Lessee - Person to whom the lease is granted

 Licence – Means permission given by the Commission (public land) or a proprietor (private land)
permitting the licensee to perform an act on the land or in respect of a lease that would otherwise
amount to trespass but does not include an easement or profit.

 Restrictive agreement - means an agreement by one owner of land restricting the building on, or the
use, or other enjoyment of land for the benefit of the owner under a land or neighbouring land and
includes a restrictive covenant.

 Transfer - means the passing of land, a lease or a charge from one party to another by an act of the
parties and not by operation of the law and includes the instrument by which such passing is effected.

 Transmission - means the passing of land, a lease or a charge from one person to another by operation
of law on death or insolvency or otherwise howsoever and includes the compulsory acquisition of land
under any written law.

Section 4 – Guiding Values & Principles

The guiding values and principles shall apply to public officers when:
a. Enacting, applying and interpreting the Act
 b. Making or implementing policy decisions
The guiding principles are:

a. E - Equitable access to land

b. S – Security of land rights
c. P – Sustainable and productive management of land resources
d. T – Transparent and cost-effective administration of land
e. C – Conservation and protection of ecologically sensitive areas
f. E – Elimination of gender discrimination
g. A - Participation, accountability and democratic decision making
h. T – Technical and financial sustainability
i. A – Alternative Dispute Resolution mechanisms

Section 5 – Forms of Tenure

There shall be the following land tenure systems:
a. Freehold
b. Leasehold
c. All other partial interests including but not limited to easements
d. Customary land rights, where consistent with the Constitution

There shall be equal recognition and enforcement of rights arising from all tenures and there shall be non-
discrimination in ownership of, and access to land in all tenure systems.

Section 7 – Methods of Acquisition of Land Titles

a. A – Allocation
b. A – Land Adjudication Process
c. C – Compulsory Acquisition
d. P – Prescription
e. S – Settlement Programs
f. T – Transmissions
g. T – Transfers
h. L – Long term leases (over 21 years)
i. O – Any other means provided for by Act of Parliament

Due diligence –
search,
correspondence and
survey file perusals,
inspection of property/site visits,
perusal of land reports,
authentication of titles and identity documents

Completion documents –
rates clearance,
rent clearance,
consents - LCB consent,
spousal consent,
land commissioner’s consent,
chargee’s consent,
KCAA consent

GENERAL CONDITIONS RELATING TO PUBLIC LAND

Section 23 – Implied Covenants and Conditions by Grantor or Lessor
Unless otherwise stated in the lease agreement there is an implied condition that:
a. The grantor or lessor has full power to grant the land or lease
b. The grantee upon payment of the rent and fulfilment of the conditions of the grant shall enjoy full
and quiet possession of the land.

Section 24 – Implied Covenants and Conditions by Grantee or Lessee

The following conditions or covenants shall be inferred upon the grant of lease or licence to public land:
a. Pay rent and royalties
b. Pay all taxes, duties, charges, assessments, or outgoings

Section 27 – Obligations of Children

A child shall be capable of holding title to land through a trustee, and such child shall be liable to the same
extent as an adult with regards with to the child’s liabilities and obligations towards the land.

PART V – ADMINISTRATION & MANAGEMENT OF PRIVATE LAND

Section 38 – Regaining Possession of Land after concluding a Contract for Sale of Land
No suit concerning a the disposition of an interest in land shall be brought unless the contract upon which
it is founded:
a. Was in writing
b. Was signed by the parties
c. Was attested to by at least one witness for each party, who were present at the signing of the
contract.

Section 39 – Vendor’s Right to Regain Possession

Where a purchaser has taken possession of the property, under a contract for sale of land, the vendor may
opt to rescind the contract for sale where there has been a breach by: -
a. Re-taking possession of the land peaceably or
b. Obtaining an order to retake possession

Section 40 – Damages for Breach of Contract

Vendor shall have the right to claim damages and mesne profits due to a breach of contract for the sale of
land.
Any implied or express term in a contract that conflicts this section will be inoperative.

Section 41 – Procedure for Obtaining Order for Possession

A vendor wishing to obtain an order for possession shall serve the purchaser with a notice containing:
a. N – The nature and extent of the breach complained of
b. A – Whether the vendor considers that the breach is remediable by the purchaser doing or
desisting from doing certain actions, or through some form of compensation or both. Provided the
time to remedy be no less that 30 days.
c. P – Whether the vendor considers the breach is remediable by payment of a sum of money owing
under the contract.
d. C – Consequences of failure to remedy
e. O – If the vendor considers the breach irremediable, they can obtain orders from the Court for
possession.
f. T -Whether the vendor considers that the purchaser can remedy the complaint within the time
period provided for.

Where a notice served under this section does not comply with the procedure and requirements set out
above:
 a. It shall not be invalid as long as the message and purport is clear
b. It shall not absolve the purchaser of the consequences of failure to respond to the notice

Section 42 – Relief Against Rescission for Contract for Sale of Land

Where a vendor has served the notice to regain possession under s41, and has peacefully regained
possession or sought an order to do so, the Purchaser may apply to the Court for relief against rescission of
the Contract for Sale of Land:
a. In the proceedings for an order for possession
b. In proceedings brought by a purchaser

Where the vendor has peacefully entered the land, the purchaser shall make such application within 90
days.

TRANSFERS
Section 43 – Transfer
Transfer includes a conveyance, assignment, transfer of land, transfer of lease or other instrument used in
the disposition of an interest in land by way of transfer.

A proprietor may transfer land, a lease or charge, with or without consideration, by an instrument in the
prescribed form.

Transfer shall be complete by the registration of the transferee as the proprietor of land, a lease or charge.

The transferee of a charge may require the chargor to execute the transfer for the purpose of
acknowledging the amount due under the charge at the date of execution of the transfer.

Section 44 – Transfer to Take Effect Immediately

A transfer may not be expressed to take effect at a future date or on the occurrence of some future event
or on the fulfilment of any condition at a future date.

Section 45 – Transfer of Leases

Upon the transfer of the lease there is an implied condition:
a. On the part of the transferor that the rent, agreements and conditions of the lease have been paid,
performed and observed, up to the date specified in the transfer, and if no date is specified up to
the date of the transfer.
b. On the part of the transferee, an agreement to pay the said rent, as from the date specified and to
perform and observe all necessary agreements and conditions.

Section 46 – Effect of transfer on agreement in leases

A transfer from a lessor or from a lessee shall possess all the rights, and be subject to all the liabilities, of
the lessor or lessee, expressed or implied in the lease, or arising or which have arisen thereunder, and the
transferee shall cease to be under any obligation or possessed of any rights in respect of the lease subject
to subsection (2).

Section 47 Transfer subject to charge

In every transfer of land or a lease subject to a charge, there shall be an implied agreement by the
transferee with the transferor to pay the interest, where applicable, secured by the charge.

CLIENT INTERVIEWS/OBTAINING INSTRUCTIONS

Facts to be obtained from the seller:
a. D – A description of the property being sold including its current use.
 b. E – The name and address of the estate agents
c. A – The address of the property being sold
d. N – The client’s full name, address, telephone number, fax number and email address.
e. B – Details of the buyer.
f. P – The agreed sale price and a note of any additional items included in that price.
g. C – Details of any conditions attaching to the sale, such as whether there is a time schedule which
must be complied with or a dependent purchase.
h. T – The whereabouts of the title deeds. Without these it is not possible to prepare a draft contract.
If the title deeds are not in the seller’s possession and there is no mortgage, then they may have
been deposited with the seller’s bank or with another firm of solicitors.

Where the property is mortgaged, the deeds will be deposited with the mortgagee and the account
number should be obtained from the seller. The deeds to a property held by a mortgagee will be released
subject to an undertaking given by the conveyancer that they will be returned to the mortgagee on
demand or the mortgage will be redeemed. In those circumstances, when the lender chooses to be
separately represented, the title deeds will not be released to the borrower’s legal advisers, but copies
supplied instead.

Facts to be obtained from the buyer:

a. N – The client’s full name (and what he or she prefers to be called), address, telephone number, fax
number and email address.
b. A – The name and address of the seller and of the estate agents.
c. D – Whether any preliminary deposit has been paid to the estate agents and, if so, how much.
Payment of a preliminary deposit is merely a gesture of good faith, and does not constitute a
binding contract.
d. A – Address of the property together with a description of the property, its current use and its
proposed use, and any peculiarities such as footpaths which go across it or tenancies to which it is
subject.
e. V – In whose name is the property to be vested? It should be noted that the maximum number of
people in which the legal estate of a property can be vested is four.
f. F – It is important that the buyer has considered how the purchase of the property is to be
financed. Usually this will be by mortgage. Application for a mortgage advance from a building
society requires a written application together with a payment of a valuation fee. After the property
has been valued and the borrower’s means checked, then if the building society is satisfied it will
make an offer which, in some cases, requires express acceptance by the borrower. Instructions will
also be sent to the legal advisers.
g. P – The agreed price which may be apportioned as between the legal estate and the contents of the
property. This is important to ascertain for stamp duty purposes.
h. D – A target date for completion in general terms.

DUTIES OF ADVOCATES
Advocate for the Vendor
The duty of the advocate acting for the vendor is to obtain full information that relate to:
N -names of the parties
P -full particulars of the property
P – the price
D – whether any deposit is required
E – details of encumbrances
V – whether the property is vacant
C – expected date of completion,
S – prepare the sale agreement,
T – obtain original title document from vendor,
T – approve transfer,
E – procure execution of transfer,
R – receive and account for the proceeds of the sale to vendor,
R – obtain rates, rent clearances, consents where required,
D – obtain discharge of charge where necessary.
T – It is the responsibility of the vendor to deduce title to the property.
P – Where the property is to be used as a security to secure a loan, from a financial institution, the duties
of the advocate of the vendor is to obtain a professional undertaking either from the advocate of the
purchaser or from the advocate of the lender.

Advocate for the purchaser or lender

In some cases, an advocate may act for both the purchaser and the lender. In those instances, the duties of
the advocate is to obtain information on:
F – finances taxes
C – legal costs and expenses of the conveyance,
S – scrutinizing of title documents,
I – investigation of title,
A – approving sale agreement,
C – preparing a charge,
T – preparation of transfer and engrossing the same,
E – confirm execution and attestation,
S – stamping and lodging of documents where necessary,
P – obtaining and paying the purchase price to the vendor‘s advocates,
P – giving a professional undertaking and
C – obtain all requisite consent, clearances and
T – original title from the seller upon professional undertaking.

D – The lender’s advocate has a duty to draft the charge and send it to the borrowers advocate for perusal
and approval.
I – The lender’s advocate should ensure all important covenants are included and confirm that the
borrower has obtained independent legal advice. Independent legal advice should be sought from a
qualified advocate. Because land transaction in Kenya is commonly fraught with fraud, the advocate for the
purchaser must exercise due diligent to discover any defect that may affect the title.

Advocate Acting for Lender and Purchaser

In King Woolen Mills and Another –vs– Kaplan and Stratton Advocates, the respondent firm of advocates
had acted in a mortgage transaction for the lenders during the negotiations and the preparation of the
loan agreement and security documents. Thereafter, the firm had acted as the common advocate for both
the lender and the borrower.  The firm had prepared the loan agreement, the guarantee, the debenture
and the legal charge on behalf of both parties and also furnished the requisite legal opinion

Subsequently, the borrower had defaulted on repayment and had questioned the validity of the security
documents. Subsequently, the firm had purported to enforce the said security and the appellant sought a
grant of injunction to stop the firm.  The Court of Appeal held that since the firm was aware that there was
likely to arise a conflict between the lender and the borrower, and since having acted for both parties they
were in a position to be privy to information pertaining to the appellant’s case, they would not purport to
enforce the said securities to the prejudice of the appellants

The case of King Woolen Mills & Anor vs. Kaplan & Stratton Advocates illustrates a scenario where the
Defendant acted for both the borrower and the lender in a borrowing transaction and a conflict of interest
was created as information that was privileged was disclosed to an adversarial party being represented by
the same advocate. In the above-stated case, court stated:

“…. Once a retainer is established, the general principle is that an advocate should not accept instructions
to act…where there is a conflict of interest…”

The information acquired which is confidential by reason of a fiduciary relationship between the opponent
client and the common advocate will place the former client at a disadvantage or worse still the privileged
information may be used against the client.

PROFFESSIONAL UNDERTAKINGS
The draft LSK Code of Conduct and Ethics for Advocates defines an undertaking as a formal
promise whose effect is to make the person giving it responsible for the fulfillment of the obligations in
respect to which it is given.

An Advocate’s undertaking is a personal promise as well as a professional and legal obligation. It is based
on the concept of the legal profession as an honorable profession and the expectation that an honorable
person will keep (honor) his/her word.

Section 14 of the Advocates (Professional Conduct) Regulations states categorically that an

advocate shall not:
1. give any undertaking to another advocate or any other person knowing that he or she has no
authority or means of satisfying the undertaking; and
2. knowingly breach the terms of an undertaking

In practice, these are mostly used in Conveyancing transactions where the Purchaser releases the balance
of the purchase price to their advocate pending completion of the Vendor’s obligations / duties. The
advocate acting for the Purchaser is supposed to ‘hold’ the money and only release it upon receipt of the
completion documents form the Vendor’s advocates and successful registration of the Conveyance in
favour of the Purchaser. The advocate therefore plays the role of a trustworthy middleman to ensure that
the Vendor actually meets their obligations in the Conveyance while the buyer actually meets their
financial obligations and that no one dupes the other.

An interesting point to note is that where an advocate fails to honour his undertaking, it is not an excuse
that his client failed to place him in funds. This was the Court’s holding in the case of Kenya Re-
insurance Corporation v. V.E. Muguku Muriu. In most instances practically, banks will not agree to
deposit funds with their advocates to issue an undertaking which then puts the advocate between a rock
and a hard place.

Failure to honour a professional undertaking is evidence of professional misconduct and disciplinary action
can be taken against the defaulting advocate where the Tribunal may, in accordance with
Section 60(4) of the Advocates Act order:
(a) that such advocate be admonished;
(b) that such advocate be suspended from practice for a specified period not exceeding five years; or
€ that the name of such advocate be struck off the Roll; or
(d) that such advocate pays a fine not exceeding one million shillings; or
€ that such advocate pays to the aggrieved person compensation or reimbursement not exceeding five
million shillings,
or such combination of the above orders as the Tribunal thinks fit.
Drawing authority from case law, a professional undertaking is enforceable and the Court can make orders
that a defaulting party honour its undertaking pursuant to Order 52 Rule 7 of the Civil Procedure
Rules 2010 as seen in the case of Nelson Andayi Havi t/a Havi & Company Advocates v. Jane
Muthoni Njage t/a J.M Njage & Company Advocates that was decided in 2015. Delayed discharge
of the professional undertaking may result in payment of interest by the defaulting advocate. It is
important to note that a professional undertaking is a separate and distinct contract which is enforceable
between the advocates. The advocates’ clients are not privy to this contract

CASES
National Bank of Kenya v Anaj Warehousing Limited (2015)
The respondent sought to be discharged from a guarantee arising from a charge that was prepared,
attested, and registered by an unqualified person contrary to section 34 of the Advocates Act. It was
however held that no instrument or document of conveyance becomes invalid under Section 34(1)(a) of
the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not
holding a current practising certificate.

The reasoning of the Court being that to hold otherwise would widen the scope of fraudulent borrowing
and would be an encroachment of the fundamental rights and freedoms of individuals under Article 40.
Specifically, the right and freedom to enter into valid and binding contracts.

National Bank of Kenya Limited v Wilson Ndolo Ayah (2009)

The respondent sought the invalidation of a charge and deed of guarantee prepared by an advocate who
had no practicing certificate at the pertinent time, contrary to section 34 of the Advocates Act.

The Court held that the charge and the deed of guarantee were invalid, and the monies so secured were
irrecoverable. The Court reasoned that failing to rule in such a manner would encourage continued
violation of the law and encourage illegality as well as excuses for non-compliance.

Barclays Bank PLC V O’Brien (1994)

Presumed undue influence; it is presumed by the relationship between the parties. The vulnerable partner
due to the nature of the relationship may be taken advantage of by the stronger partner. Lord Browne-
Wilkinson explained: In these cases, the complainant only has to show that there was a relationship of
trust and confidence between the complainant and the wrongdoer. This is of such nature that it is fair to
presume that the wrongdoer abused that relationship in procuring the complainant to enter into the
impugned transaction. Thus, there is no need to produce evidence that actual undue influence was
exerted.

Such a confidential relationship can be established in two ways: 

 Certain relationships as a matter of law raise the presumption that undue influence has been
exercised. For example, solicitor and client, medical advisor and patient relationships.

Francis Mugo & 22 Others –vs- James Muthee & 3 Others (2005) eKLR
A lawyer was disqualified from acting for the plaintiffs in the suit as the defendants wished to call him as a
witness concerning some leases which he drew for the Plaintiff and some other parties relevant to the suit.

SUBDIVISIONS & AMALGAMATION

Section 22 Land Registration Act – Combinations and Subdivisions
Regulation 43 of the Land Registration General Regulations – Subdivision & Combination
A person may apply to the Registrar for sub-division or combination under section 22 of the Land
Registration Act, in form LRA 26 set out in the 6th Schedule
 CHANGE OF USE
Section 55 of the Physical and Land Use Planning Act – Development Control
Change of Use is regarded as a means/tool to achieve development control objectives. This is the
prerogative of the County Government under the 2010 Constitution.

Third Schedule:
Development application may be made to the County Government for Change of use.
Provided that for an application for change of use for agricultural land the County Government shall obtain
consent from the relevant Board.

Regulation 3 (1) – Physical and Land Use Planning (Development Permission and
Development Control) (General) Regulations
Application for development permission, including change of use to be made by Form PLUPA/DC/1.

LEASES AND LICENCES

Section 56 – Power to Lease Land

Owner of private land may lease land to any person for a definite period, or for the life of the lessor or
lessee, or for a period which although indefinite may be terminated by the lessor or lessee.

Section 57 – Periodic Leases

Where in any lease no definite term is given and no provision is made for the giving of notice to terminate
the lease, it may be deemed a periodic lease.

Where in any lease the term if from week to week, month to month, year to year or any other periodic
interval, for agricultural land, the periodic lease shall be for 6 months.

Where the lessee remains in possession of the land after the term has expired, with the consent of the
lessor, it shall be a periodic lease.

If the owner of private land permits someone to have exclusive possession of the land or any part of it in
exchange for rent, but that agreement is not in writing, it shall be deemed a periodic tenancy.
The periodic tenancy shall be for the period to which rent is payable.
A periodic tenancy may be terminated by any party giving notice to the other, the length of which shall be
no less that the period of the tenancy.

Section 58 – Short Term Leases

A short-term lease is made for a period of two years or less without the option to renew.
A short-term lease is a periodic tenancy as contemplated in section 57.
A short-term lease may be made orally or in writing.
A short-term lease is not a registerable interest in land.

Section 59 – Leases Terminating on The Occurrence of Some Future Event

These leases are valid so long as the event is sufficiently and clearly defined to enable its identification
once it occurs.

Section 60 – Lessee Remaining in Possession After Termination Without the Consent of

the Lessor
The rights and obligations under the terminated lease continue to operate even where the lessee remains
in possession without the consent of the lessor.

The accepting of rent or payment in such as situation by the lessor shall not be deemed to amount to
consent of the lessee having possession and does not erode their rights and remedies for a breach of
condition by the lessee. If the lessor continues to accept rent from a lessor who has remained in possession
for over two months, a periodic lease is formed.

Section 61 – Future leases

For the avoidance of doubt, a lease of land may be made for a term to begin on a future date, not being
later than twenty-one years after the date on which the lease is executed.
A future lease, which is expressed to be for a period of more than five years, shall be of no effect unless
and until it is, registered.

Section 54 of the Land Registration Act – Registration of Leases

Upon the registration of a lease containing an agreement, express or implied, by the lessee that the lessee
shall not transfer, sub-let, charge or part with possession of any of the leased land without the written
consent of the lessor, the agreement shall be noted in the register of the lease, and no dealing with the
lease shall be registered until the consent of the lessor, verified in accordance with this Act has been
produced to the Registrar.

Long Term Leases

Section 54 of the Land Registration Act
The Registrar shall register long-term leases and issue certificates of lease over apartments, flats,
maisonettes, townhouses or offices having the effect of conferring ownership, if the property comprised is
properly geo-referenced and approved by the statutory body responsible for the survey of land.
The Cabinet Secretary may prescribe regulations for the registration of long term-leases.

Covenants in Leases: Rights and Duties of Parties to a Lease

Section 65 - Covenants Implied in a Lease on the Part of Lessor
a. QUIET POSSESSION - So long as the lessee pays the rent and observes and performs the covenants
and conditions contained or implied in the lease the lessee shall peaceably and quietly possess and
enjoy the land leased during the term of the lease without any interruption from or by the lessor or
any person rightfully claiming through the lessor.
b. UNFIT OR MATERIALLY LESS FIT (Neighbouring Land) - The lessor undertakes not to use or permit
any adjoining or neighbouring land that the lessor owns or leases that would in any way render the
leased land or any buildings on the leased land unfit or materially less fit for any purpose for which
they may be used.
c. PROPER STATE OF REPAIR (Common Areas) - If only part of a building is leased, to keep the roof, all
external and main walls and main drains, and the common parts and common installations and
facilities, including common passages and walkways in a proper state of repair.
d. DWELLINGS MUST BE FIT FOR HUMAN HABITATION - If any dwelling house, flat, or room is leased,
that the house, flat or room is fit for human habitation at the commencement of the lease and shall
be kept fit for human habitation during the lease.
e. SPECIFIC PURPOSE (If Building No longer Suitable- Lessee Can Terminate) If it is an express or
implied term of the lease that the leased land or a building on it may be used for any one specific
purpose or purposes, the lessee may terminate the lease, on giving one month's notice to the
lessor, if the land or building cannot be, or can no longer lawfully be, used for any of those
purposes.
f. PAY RATES & OUTGOINGS) - To pay all rates, taxes, dues and other outgoings that are payable in
respect of the leased land except to the extent otherwise specified in the lease.
 g. POWER TO INSPECT – At a reasonable time
h. TERMINATE LESSEE – For lessee’s failure to pay rent for one month or failure to observe or perform
any condition or covenant.

Section 66 – Covenants Implied in a Lease on Part of Lessee

a. PAY RENT - to pay the rent reserved by the lease at the times and in the manner specified in the
lease
b. SUSTAINABLE USE - To use any land in a sustainable manner and in accordance with any conditions
imposed on the use of that land by the lease. In particular, not to cut down, injure or destroy any
living tree on the land unless the purpose for which the land has been leased cannot be carried out
without so doing.
c. YIELD UP POSSESSION IN ORIGINAL STATE - To yield up the land and buildings in the same
condition as they were when the term of the lease began.
d. REPAIR BOUNDARY MARKS - To keep all boundary marks in repair
e. REASONABLE STATE OF REPAIR FOR BUILDINGS - To keep all buildings comprised in the lease in a
reasonable state of repair.

CASES
Desai v Cooper (1950)
The defendants had no key to the front of the door of a shop and could not enter their portion of the shop
when they pleased. They were entirely dependent for doing so upon the plaintiff. They had to go through
the plaintiffs’ portion to get to their portion of the shop.
The plaintiff sought to recover possession of the portion occupied by the defendants.

POINT OF DECISION
The key point of decision was whether the defendants were licensees or tenants or partly licensees and
partly tenants of the portion of the premises occupied.
The Court held that on the facts of the case although the defendants has the exclusive use of some space
in the shop, they did not have exclusive possession of any of it and they were licensees and not tenants.

James Michiki Mwangi & Another V Esther Wanjiru Kabugu & Another (2006) eKLR
Lease for 5 years 1 month not registered. Walsh V Londsdale (1882) quoted(where a Lessee holds under an
agreement for a lease equity regards him as holding a lease). The Lessee continued in occupation after
expiry of term and Lessor accepted rent. S 52 RLA provided that acceptance of rent was evidence of
consent to continue in occupation. A periodic tenancy was held to have been created.

Francis Mugo & 22 Others –vs- James Muthee & 3 Others (2005) eKLR
A lawyer was disqualified from acting for the plaintiffs in the suit as the defendants wished to call him as a
witness concerning some leases which he drew for the Plaintiff and some other parties relevant to the suit.

CHARGES

Section 79 – Charges

A. Formal Charge
Is one that is a charge that has been duly registered under section 56 of the Land Registration Act.

Section 56 Land Registration Act – Forms of Charges

The charge shall be completed by its registration as an encumbrance and the registration of the person in
whose favour it is created as its proprietor and by filing the instrument.
The Registrar shall not register a charge, unless a land rent clearance certificate, certifying that no rent is
owing in respect of the land, and the consent to charge has been presented, or unless the land is freehold.
A charge shall have effect as a security only and shall not operate as a transfer.

B. Informal Charge
An informal charge may be created where –
a. a chargee accepts a written and witnessed undertaking from a chargor, the clear intention of which
is to charge the chargor’s land or interest in land, with the repayment of money or money’s worth,
obtained from the chargee
b. the chargor deposits any of the following-
i. a certificate of title to the land
ii. a document of lease of land
iii. any other document which it is agreed evidences ownership of land or a right to interest in
land.

A chargee holding an informal charge may only take possession of or sell the land, which is the subject of
an informal charge, on obtaining an order of the court to that effect.

Section 80 – Charge of Land to Take Effect as Security Only

Every charge instrument shall contain-
(a) the terms and conditions of sale;
(b) an explanation of the consequences of default; and
(c) the reliefs that the chargor is entitled to including the right of sale.

Section 57 Land Registration Act – Subsequent and Second Charge

A proprietor whose land or lease is subject to a charge may create a second or subsequent charge in the
same manner as the first charge and the same provisions shall apply, but any sale under the power
expressed or implied in any such charge shall be expressed to be subject to all prior charges unless all
those charges have been discharged.

Where a second or subsequent charge is to be created, the consent of the first chargee’s shall be obtained
before the second or subsequent charge is created.

Section 81 – Order of Priority of Charges

Charges shall rank according to the order in which they are registered.

Informal charges shall rank according to the order in which they are made provided that a registered
informal charge shall take priority over any unregistered informal charge.

If two informal charges are made on the same day or are registered on the same day, the charge which
was first in time to be made or registered shall have priority.

If a chargor, subsequent in time to a prior chargor under a charge, lends money or money's worth on the
security of a charge to a chargor as a consequence of or through the fraud, dishonesty or
misrepresentation of the prior chargee, either in conjunction with or separately from the fraud, dishonesty
or misrepresentation of the chargor, that prior chargee's right to repayment under the charge shall be
postponed to the rights of the subsequent chargor.

The rules of priority for informal charges shall apply as far as the circumstances shall permit liens by
deposit of documents.
Section 82 – Tacking
Subject to the provisions of this Act, a chargor may make provision in the charge instrument to give further
advances or credit to the chargor on a current or continuing account.

Section 83 – Consolidation
Unless there is an express provision to the contrary clearly set out in the charge instrument, a chargor who
has more than one charge with a single chargee on several securities may discharge any of the charges
without having to redeem all charges.

A chargee who has made provision in accordance with subsection (1) for the consolidation of charges shall
record that right in the register or registers against all the charges so consolidated that are registered.

Section 85 – Right to Discharge

The chargor shall, upon payment of all money secured by a charge and the performance
of all other conditions and obligations under the charge, be entitled to discharge the charge at any time
before the charged land has been sold by the chargee or a receiver under the power of sale.

Section 86 – Transfer of Charge

Chargor or any person referred to in subsection (2) may, at any time, other than a time when the chargee
is in possession of the charged land, in writing, request the chargee to transfer the charge to a person
named in the request

The charge shall, on receiving a written request made under subsection (1) and on payment by the person
or persons making the request of all money that would have been payable if discharge of the charge had
been made under section 102, and the performance of all other obligations secured by the charge, transfer
the charge to the person named in the written request.

Section 88 – Implied Covenants by Chargor

a. P – Pay Principal sum on appointed day and pay any interest on such
b. R – Pay all rents, rates, taxes, charges and all other outgoings at the time required
c. R – Repair buildings and improvements on the charged land
d. I – Insure
e. S – For Agricultural Land use in a sustainable manner

Section 90 – Remedies of a Chargee

Notice may be served by chargee to chargor where the chargor is not fulfilling any conditions or covenants.

The Notice must contain:

a. The nature and extent of the breach
b. If it concerns unpaid money, the money that must be paid to rectify the breach, within 3 months.
c. Consequences
d. Right of Chargor to apply to Court for certain remedies

If the notice is not complied with:

a. Chargor may sue
b. Appoint receiver for income of the land
c. Lease the land
d. Enter into possession
e. Sell the charged land

Section 96 – Chargees Power of Sale

Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the
time provided for the rectification of that default in the notice served on the chargor under section 90 (1),
a chargee may exercise the power to sell the charged land.

Section 97 – Duty of Chargee Exercising Power of Sale

Chargee has obligation to obtain the best price possible.
Chargee must obtain a valuation for the land.
If Chargee sells land below 25% of market value, that will be a breach of duty.

Albert Mario Cordeiro & Another Vs. Vishra Shamji (2015) eKLR
It was held that the Notice of Redemption made under rule 15 of the Auctioneers Act is quite separate and
distinct as the notice required under section 96 of the Land Act. The two serve different purposes.

Uhuru Highway Development Ltd & Others vs CBK & Others (2002)
Exchange Bank could not meet some of its obligations to the CBK. They entered into an agreement with
the appellants where it was agreed they would charge the Grand Regency Hotel for up to 2.5 billion. CBK
wanted to sell the Hotel to recover the monies. The Appellants applied for an injunction. It was held that
the charge was properly registered, the CBK under section 96 had the power of sale.

Yusuf Abdi Company Limited Vs. Family Bank Limited (2015) eKLR
Defendant had not complied with the strict provisions of the Land Act before it advertised the subject
property for sale by public auction.

Palmy Company Limited Vs. Consolidated Bank of Kenya Limited (2014) eKLR
Defendant had failed to comply with section 96 of the Land Act. A Temporary Injunction from dealing with
the property was issued against them.

Olkasasi Limited Vs. Equity Bank Limited (2015) eKLR

Injunction was granted as defendant failed to procure a forced valuation as required under section 97 of
the Land Act and did not issue proper notice under section 96 of the Land Act. Court noted that the
injunction is not absolute and only subsists in so far as the defendant has not issued proper notice.

EASEMENTS & ANALOGUS RIGHTS

Section 136 - Interpretation
The land for the benefit of which any easement is created is referred to as the "dominant land" and the
land of the person by whom an easement is created is referred to as “the servient land.

An easement is, in relation to the dominant land referred to as “benefiting that land” and is, in relation to
the servient land, referred to as “burdening that land

Section 138 – Nature of Easement

The rights capable of being created by an easement are—
a. Rights to do something over, upon or under the servient land
b. Right that something should not be so done
c. Right requiring owner of servient land to do something over, upon or under the land
d. Right to graze stock upon the servient land.
The rights do not include:
a. Right to take anything away from the servient land
b. Right to exclusive possession of any part of the land
An easement shall be capable of existing only during the subsistence of the land or lease out of which it
was created.

Section 140 – Access Order

Owner of Landlocked land may apply for an access order to grant access to that land.

Restraints on Dispositions (Rights in Alieno Solo)

Restraints on title may also affect full access to land rights for realization of maximum benefits. These
restraints include inhibitions, cautions and restrictions and have the effect of limiting and interfering with
the land owner’s rights to full use of the land value.

Cautions
A person who claims a contractual right in another person’s land can lodge a cation to forbid registration of
other dispositions in the said parcel of land. A caution is a notice in form of a register to the effect that no
action of a specified nature in relation to the land in respect of which the notice has been entered may be
taken without first informing the person who gave the notice. Where a caution has been placed on land:
1. The Registrar has discretion to accept or reject the caution if he is of the view that its unnecessary
or what you try to create with a caution can be created with another instrument.
2. The registrar shall give a notice in writing to the proprietor whose land, lease, or charge has been
cautioned;
3. If the proprietor of the land would like the caution to be removed, he is required to make an
application that the caution be removed.
4. A disposition which is inconsistent with the caution shall not be registered while the caution is still
on except with the consent of the cautioner or by the order of the court.
5. A caution may be removed by the cautioner, the court or the registrar;
6. The registrar may on application of any person interested serve notice to cautioner warning that
the caution will be removed at the expiration of the time stated in the notice ;
7. If the cautioner would not have raised any objection at the expiry of the time stated in the notice,
the registrar may remove the caution.
8. If an objection by the cautioner is received, the registrar give the parties an opportunity to be heard
(Registrar conducts a quasi-judicial hearing) after which the registrar will make orders which deems
fit and may in the order provide for the payment of costs.
9. Upon removal of caution, the registrar may refuse to accept further caution by the same person or
anyone on behalf of that person in relation to same matter as a previous caution.
10. Any persons who lodges or maintains a caution wrongfully and without reasonable cause shall be
liable for damages and may pay compensation in case of a suit by the person who sustained the
damage.
11. The Registrar may refuse to register subsequent caution from the same cautioner in respect of the
same property on the grounds that it is vexatious and frivolous

Restrictions
Restrictions are inhibitions imposed by the government or the registrar to prevent fraud, or improper
dealing or for any other sufficient cause. It is also called the registrar’s caveat. Restrictions are normally
placed by the registrar during compulsory acquisition or during investigation of a crime or any impropriety
related to the acquisition of ownership. The effects of restrictions are similar to those of other inhibitions
and the manner of removal is similar.
Restrictions may be put by the Registrar suo moto or from an intended party after having an inquiry done
and notices served, the Registrar hears and makes an order restraining the dealings with the subject
property.
The Registrar may remove the restriction or vary the restriction order. He can also remove the restriction if
the proprietor of the property makes an application or at the behest of the court.
Inhibitions
Inhibitions are registrable orders issued by courts of law stopping or inhibiting for a particular time, or until
the occurrence of a particular event, or generally until further order the registration of not dealing with any
land, lease or charge. A copy of the inhibition under the seal of the court is sent to the land registrar of
land administration in Kenya for registration indicating the affected land, lease or charge. Upon registration
of the inhibition, no other instrument which is inconsistent with the inhibition may be registered.

LOSS OF LAND DOCUMENTS

Where the title to land or certificate of lease is lost or destroyed the proprietor of the land may apply to
the registrar for the issuance of a duplicate title or certificate of lease, and shall produce evidence to
convince the registrar of the loss or destruction of the previous title or certificate of lease. The registrar
shall require a Statutory Declaration to be made by the registered proprietor that that the title deed or
certificate of lease has been lost or destroyed. If the registrar is satisfied by the evidence he will now
ensure the information is published in the Kenya gazette and any other publication with nationwide
circulation. The registrar will issue a duplicate of the lost document sixty days from the date of the first
publication in Kenya gazette and national publication. If the lost title is found after the duplicate has been
issued, it will be forwarded to the registrar for destruction.
The registrar also has powers to reconstruct any lost or destroyed land register after making appropriate
inquires and giving notice of sixty days in the gazette.

OVERRIDING INTERESTS
Section 28 of the Land Registration Act, 2012 provides for overriding interests which may interfere with the
enjoyment of absolute ownership interest. Overriding interests are those interests which supersede other
interests in land. The law provides that: ‘registered land shall be subject to the following overriding
interests as may for the time being subsist and affect the same, without their being noted on the register.
1. Spousal rights over matrimonial property;
2. Trusts including customary trusts;
3. Rights of way, rights of water and profits subsisting at the time of first registration under this Act;
4. Natural rights of light, air, water and support;
5. Rights of compulsory acquisition, resumption, entry, search and user conferred by any other written
law;
6. Leases or agreements for leases for a term not exceeding two years, periodic tenancies and
indeterminate tenancies;
7. Charges for unpaid rates and other funds which, without reference to registration under this Act,
are expressly declared by any written law to be a charge upon land;
8. Rights acquired or in process of being acquired by virtue of any written law relating to the limitation
of actions or by prescription;
9. Electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and
dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written
law; and
10. Any other rights provided under any written law.

CHARGES
A charge is an interest in land securing the payment of money or monies worth for the fulfilment of a
condition. In simple terms it means that one gives their title to the bank or any other entity as security for
the money given to you. So having land can help one get money to use in any investment in form of a loan.
There are two types of charges and these are:
Informal Charge: Informal charge is a written and witnessed undertaking by the chargor to pay money
advanced to him by chargee by depositing a title deed or any other ownership document with the chargor.
The chargee can only possess or sell the land whose title has been deposited with him through a court
order to that effect. This informal charge is also referred to as ‘lien by deposit of documents’.
Formal Charge: Is given by commercial banks through a charge document prepared after formal agreement
between the bank and the applicant. One should visit a registered land Valuer for formal procedures on
how to access charges from commercial banks.

The Doctrine of Priority in charges

Every charge instrument must contain term and condition of sale and consequences of default of payment
and reliefs of the chargor. Charges rank according to the order in which they are registered. This doctrine
therefore requires that the charge that was registered first in time takes priority over subsequent charges
to the said property.
It is a fundamental doctrine that a registered charge takes priority over an informal charge.

Exceptions to the doctrine of priority

 Where you have a prior charge and a subsequent charge and the prior charge was created through
fraud or misrepresentation of the chargee or the chargor, rights of the prior chargee are postponed
over the subsequent chargee rights are realized.
 Exception under the doctrine of tacking. Where a chargee has created a provision that he can give
further advances to a chargor on a continuing or current account, the doctrine of priority will not
apply if it is noted by the Registrar or the subsequent chargee consents in writing to the further
advances having priority.

ACQUISITION OF TITLE UNDER UNIQUE CIRCUMSTANCES

Adverse Possession
In law, adverse possession is the occupation of the land of another person against his wish and in
opposition to his title. Where such possession continues without an interruption through eviction for a
period of over 12 years, then the squatter becomes legally entitled to the land by the operation of the
doctrine of adverse possession. An adverse occupier may access the land through trespass, incomplete
transfer process, informal transfer process, inheritance, encroachment or fraud. The implication is that
when someone occupies another person’s land against their consent and they do nothing to evict them for
a period of twelve years, that person becomes entitled to ownership of the land or the portion of land
occupied by him/ her. Such ownership is however only granted through filing of a petition in the high court
by the adverse occupier.
For the petition to succeed the adverse occupier must satisfy the court that his occupation has been:
1. Continuous and uninterrupted for twelve years or more;
2. Non-permissive occupation and use (occupation and use was not permitted by the owner);
3. Actual and open for the whole world to see
4. Notorious, exclusive and hostile.
The adverse possession processes rests on the assumption that the true owner has either accepted the
occupation of his land or has given up ownership to the occupier and that he is no longer interested in the
land.

Compulsory Acquisition
Sometimes when the government acquires a portion of land for construction of roads or other public
facilities. In such a situation, the land owner is expected to push the government or the acquiring authority
to survey the land, remove their portion and prepare a title for the remaining portion in his favor at their
own expense.
It is governed by the Land Act, Land Regulations 2017 and the Land Act Assessment of just compensation
Rules.

THE PROCESS OF COMPULSORY ACQUISITION,

 1. Compulsory acquisition begins with a request from the Cabinet Secretary that desires to acquire
property. The government has to give a project that informs a policy, the government comes up
with a policy and it is based on this policy that the Cabinet Secretary generates a request.
2. Government acquiring body makes a written application to the National Land The Commission has
mandate to reject the request if it doesn’t meet the required standards.
3. The Commission requires that the acquiring body to confirm that they have designated funds for
the project.
4. Once it confirms, the National Land Commission satisfies itself that the georeferencing of the
property has been done.
5. Publish a 30 day (Thirty days) notice of the intention to acquire the land Form 33 in the Kenya
Gazette in at least two dailies of nationwide circulation, one local (County).
6. Notices of intention are affixed in the county offices and sub-counties to create wide awareness.
7. Serve the notice of intention to acquire the land compulsorily to the affected persons, interested
persons and the Land Registrar. Interested persons would be the registered owners, spouses, actual
occupants of the property e.t.c. The Notice should contain information about proposed land use
and impacts of acquisition.
8. When the Land Registrar receives the notice of intention, he makes an entry of the intended
acquisition in the register. This is meant to stop any dealings and or transactions in the parcel of
land.
9. If one wishes to enter the land, the National Land Commission gives a written authorization to do
anything that is reasonably necessary. Served on the occupant a notice of 7 days. If entry causes
damage, one is entitled to just compensation.
10. The National Land Commission issues a Notice of inquiry to every person whose interest appears in
the This notice will also be served on people who claim to be interested in the land.
11. Notices of inquiry must be published in two dailies at least 15 (fifteen days) after date of inquiry. It
hears and determines issues of proprietorship and claims for compensation.
12. Under the Land Act, compensation can either be monetary or giving an alternative piece of land
which must be of the same value of the parcel of land being compulsorily acquired.
13. The National Land Commission carries out a valuation of the interest for full and just compensation.
14. The National Land Commission prepares an award which shows the size, value and amount of
compensation payable to the persons with interest in the land.
15. This shall be served on each person with a determined interest in Form LA35 notifying the
respective persons of the award and offer for compensation. Bona fide person shall be required to
communicate their acceptance or rejection. If they accept, they are required to furnish the
Commission with their KRA PIN, Identification Card Number and bank details.
16. Where only a portion of the land is being acquired, the National Land Commission is required within
6 months to carry out a formal survey before payment of compensation.
17. Payment of compensation once survey is done.
18. Upon payment of compensation the owner should deliver original documents to the National Land
Commission not late than 15 days from the date of compensation.
19. Sign the surrender documents prepared by the Commission
20. Where only a portion is registered, the Registrar registers the intended portion to be acquired in
favor of the acquiring authority and the remainder in favor of the proprietor.
21. If the is not fit for purpose for which it was intended, notice is issued to the Land Registrar to
remove the Notice of intention to acquire from the register.
22. If after acquisition the public purpose fails or ceases, the Commission has an obligation to offer the
land to the first or initial owners of the property subject to the right of first refusal.

What is just compensation?

The National Land Commission makes rules to regulate the just compensation however the following rules
apply as to what constitutes a just compensation in land that has been compulsorily acquired.
 1. It should be 15% above the market Market value of land as at the date of publication of notice to
acquire.
2. Any damages sustained or likely to be sustained at the date of taking possession should be factored
in.
3. Reasonable expenses incidental to the relocation of persons affected by the compulsory
acquisition.
4. The National Land Commission will not consider improvement put up after the date of publication
of notice of intention to acquire the parcel compulsory.
If not happy the proprietor of the land that is to be compulsorily acquired by the government can proceed
to court to determine if it is a just compensation. Further, where just a part of the land is to be acquired
compulsorily and makes or render the remainder of the portion not acquired useless, the National Land
Commission will compel the acquiring authority to acquire the remainder too.

Rights of the Proprietor of Land under Compulsory Acquisition

Compulsory acquisition has been defined as the power of the state to extinguish or acquire any title or
other interests in land for public purpose subject to prompt payment of compensation. During compulsory
acquisition the people whose land is being acquired are entitled to certain rights. Some of these rights and
entitlements include:
1. Expeditious, efficient, lawful reasonable and fair administrative This means that the Government or
any other public authority has no right to enter any private land to undertake any development
without following the due process of the law.
2. The right to written notice for the action explaining clearly why it is necessary for government to
interfere with your fundamental rights to land
3. Right to prompt and justifiable compensation
4. Right to Payment of interest on the unpaid compensation that is due
5. Right to Pre-emptive rights by the original owner or their successor where the public interest in
land ceases or when the Compulsory Acquisition fails.
In any case where these rights and entitlements are overlooked during compulsory acquisition process the
land owner has a right to go to court and sue for remedial measures.

Brooke Bond (K) Ltd vs James Bii (2013) eKLR

The Appellant owned some land near by a river, the respondent entered the land without permission and
started excavating. The respondent claimed he had authority from the Ministry to construct a dam. The
question was raised as to whether it constituted an easement. The Court held that it did not.

MINORS
Section 47 – Minors (Land Registration Act)
(1) The name of a person under the age of eighteen years may be entered in the register to enable the
minor’s interest to be held in trust and shall be registered under the name of the guardian either on first
registration or as a transferee or on transmission.
(2) Nothing in this section enables a person under eighteen years of age to deal with land or any interest in
land by virtue of such registration, and, if the Registrar knows a child has been registered, the Registrar
shall enter a restriction accordingly.
(3) If a disposition by a minor whose minority has not been disclosed to the Registrar has been registered,
that disposition may not be set aside only on the grounds of minority.

a) Mr. Janja intends to put up a commercial building on the said property. Advise him on his intended
action. (3marks)
From the facts the registered user is residential, in order to put up a commercial building Mr Janja must
change the user as well as obtaining any relevant consent. A summary of the process would be
- Mr Janja completes Form PPA 1 and it is signed by a registered physical planner.
- Planning brief by registered physical planner is submitted to the governing county government physical
department for approval with payment.
- Relevant county government approves
- Site report is conducted by licensed surveyor to be submitted to National Land Commission
- new deed plan as well as old title is surrendered
- new user is changed and submitted for registration

) What documents will you register in this transaction and in what order to avoid rejection? (5 marks)
In this scenario because a charge is involved and land cannot be registered to a new propereitor while an
existing charge is valid, discaharge must be undertaken.
The documents to be registered are
- Discharge of charge in favor of Ibis Bank
- Transfer of lease
- Charge in favor of Ruckus bank
For this is a transfer of a lease, the sale agreement itself shall serve as the main document to be
transferred.

I. What are the respective rights of the parties? (2 marks)

For the Lessor/land lord he has the right of entry to the leased premises provided he gives a 7 days notice
to the lessee and obtains their consent. The lessor also has the right to to terminate the lease where any
rent is unpaid for a month due after payment. Lessee has failed for a period of one month to observe
implied/express terms of the lease. (Section 65 (2) of the Land Registration Act
For the lessee their rights are derived form the implied covenants in Section 65 Of the Land Act. Of
particular importance here are quiet enjoyment (lessee must be allowed to enjoy property without
unreasonable intervention) in this case the removal of the doors directly interferes with right to quiet
enjoyment.

II. Is the landlord justified in his actions? (2 marks)

The landlord’s actions are not justified. Though it is true he has the right to terminate the lease if rent is
unpaid for a month; the action of removing the doors is excessive and unlawful. The remedies the lessor
could have right dully used would be Forefeiture by court action as the lessee’s had possession of the land.
Sec 73 of the Land Act. Or alternatively use the remedy of Distress for rent Under Sec 3 Distress for Rent
Act by either suing for the outstanding rent or proclaiming lesse’s assets and selling by way of auction to
cover rent arrears.