Introduction to

Conveyancing
(contd)
 TERMINOLOGY USED GENERALLY IN
CONVEYANCING

 Construction – interpretation of a conveyance

 Engross – to make the final fair copy of a

conveyance

 Adverse Possession – refers to longstanding

unlawful possession of a property or land.
Freehold – also known as absolute interest or
estate in fee simple. Relates to an interest in
land with no time limit (sec 2, Land Act)

Leasehold - Leasehold is a form of ownership of

property where the property is owned for a set
period of time.

Licence – Personal permission granted by a

landowner to another person to occupy,
personally, for consideration, the other’s land,
and may be for a limited time or unlimited.
(Sec 2, Land Act)
Apportionment – an important concept
commonly featuring in long lease
transactions where ground rent or rates will
usually either have been paid in advance for
a period by the Vendor or where the Vendor
is in arrears.

 Assent – a specific form of deed used in

conveyancing of a deceased’s property to the
beneficiary entitled to the property.

 Assignee - the person to whom a lease,

right or interest is transferred. (sec 2, Land
Act)
 Assignment - the process of transferring
rights, benefits or interests. The term is
typically used for lease transactions but can
also apply to various other rights such as
guarantees currently in the name of the seller
which need to be formally transferred to the
buyers.

 BeneficialOwnership - The beneficial owner

is the owner legally entitled to the proceeds of
sale. The beneficial owners are typically the
same as the legal owner’s, but not necessarily
so.
Boundary - Property boundaries in
relation to which the Land Registry
filed plan is generally conclusive

Caveat Emptor - “buyer beware”.

Charge - Legal document, often a

mortgage, which creates a financial
burden (charge) against the property
when the property. (sec 2, Land
Act)
Breach of Contract - Following exchange of
contracts, it is legally binding on buyer and
seller. Should either party fail to complete or
otherwise breach the contract that defaulting
party will be in breach of contract

Breach of Covenant - often refers to breach

of a term of a lease and the situation often
occurs in conveyancing when a leaseholder
has breached a term of his/her/their lease
which may or may not be capable of being
easily remedied.
 Completion Date - The date agreed in the
contract when funds must be transferred and then
upon receipt, completion documents are released
by the seller along with vacant possession.

 Deed Of Covenant - a specific form of a covenant

and as regards residential property, a typical
example would be in relation to purchasing a
leasehold flat where there is a management
company and where the lease may stipulate that
any new owner provides a direct contractual
commitment from the new owner to comply with
the terms of the lease and in particular service
charges.
 Deposit - The amount payable by the buyer to the
seller on exchange of contracts. The deposit
amount is generally held by the seller’s Advocates
and not released to the seller.

 Disbursements - Payments which are not the

lawyer’s fees but which the lawyer must pay on
the client’s behalf, whether seller or buyer, to
third parties, in order for the transaction to
proceed.

 Easement - A legal right to use or access land or

property owned by someone else.
 Filed Plan - Official Land Registry plan for
an interest in land, drawn to a standard scale.

 Forfeiture - Forfeiture relates to a legal

right to end a property contract due to a
fundamental breach.
 Management Company - Generally applies
to leasehold transactions and most commonly
with large modern developments.

 JointTenant - One of the 2 ways in which

property interests can be co-owned.

 Lease Term - The length in years for which

the lease is granted.
 Notice To Complete - Document served
on a seller’s or buyer’s Advocates in the
event of failure by the other party to
complete on the completion date.

 Power of Attorney - Refers to document

used by a person to delegate certain legal
powers and authority to another person.
 TO READ:

Abuttals
Profitsa prendre
Servitudes and Encumbrance
Tenants in common
Tenure
Valuation
Restrictions
 APPLICABLE LAWS

Land Act, 2012 – Substantive

Land Registration Act, 2012 –

Procedural

Law of Contract Act (cap 23)

 FORMALITIES IN CONVEYANCING

1. Documentation

2. Verification
Writing

3. Attestation

4. Conveyance/Deed Registration
The Formality of Writing and the Necessity
Thereof

The contract for sale of land precedes a conveyance.

Section 3 of the Law of Contract Act – any

disposition of any interest in land can only be enforced
when the same is reduced to a written document, signed
by all parties and signature of all parties attested to by a
witness when the contract is signed.

Proviso: this does not apply to a contract made in the

course of a public auction by an auctioneer nor shall
anything in it affect the creation of a resulting, implied
or constructive trust.
 Purpose of Writing
Forensic Function

Evidentiary Function

Protective Function
 THE FORMALITY OF
REGISTRATION
No right will be conveyed if the conveyance is not
registered. Registration is the keeping of records of land
dealings at the Land Registry.

Section 24 LRA – the effect of registration

Certain transactions must be registered before any

interest is passed:
 Transfers

 Long Term Leases

 Charges
Registration however is subject to: (sec 25 & 28,
LRA) (inter alia)

 Leases, charges and other encumbrances,

conditions and restrictions as shown in the
Register;
 Trusts, including customary trusts;

 Rights of way, water, profits subsisting at the time

of first registration under the Act;
 Rights of compulsory acquisition, resumption,
entry, search and user conferred by any other
written law;
 Registration of a title or any person who is the proprietor of
land extinguishes the communal system as it vests in the
registered proprietor and he/she becomes the absolute owner
of the land/lease/charge with all the rights and privileges
thereto

Kanyi –vs- Muthiora [1984] KLR 712

The registration of land in the name of one party under the
RLA would not extinguish the rights of other parties who were
entitled to the land under Kikuyu Customary Law

Jason Gitimu Wangara –vs- Martin Munene Wangara &

Others [2013] eKLR; Kerugoya ELC No. 278 of 2013
The registration of the plaintiff as the proprietor in the suit
premises, pursuant to the provisions of the RLA would not
defeat the possibility that he held the land in trust for other
persons as beneficiaries.
James Ngugi Mbugua & Another –vs-
Grace Wairimu Mwithiga; Nrb HCC No.
1174 of 2002 (O.S)

Easement by operation of law – right to use a

road passing through another person’s land
where the road is the only means of access to
the other land – right of access to exist for a
long as the necessity of the easement exists.
 TO READ:

 Obiero –vs- Opiyo & Others (1972) E. A.

227

 Mbui –vs- Mbui (2005) 1 E.A 256

 Esiroyo –vs- Esiroyo (1973) E. A 388

 THE GOALS OF REGISTRATION
 Achieving security of tenure
Upon registration, any transferor or registered
proprietor has security of tenure over their
interest over the land. This security gives one
the right to indemnity from the government.

 Obiero –vs- Opiyo; HCCC No. 44 of 1970

 Gitwany Investment Ltd –vs- Tajmal

Limited & 3 Others [2006] ; Nairobi HCC
No. 1114 of 2002
 Reduction of unnecessary litigation
During the process of registration, the size and
the owner of the land parcel are conclusively
established.

 Facilitation of Tax Administration

This helps the government to keep track of the
user of any particular land parcel. Government
can track tax evaders easily

 Sec46, LRA
 Stamp Duty Act, Cap 480
 Certainty
Registration creates certainty and
therefore, security of title.

 Prevent Fragmentation of Land

In order to sell or sub-divide, or even
amalgamate land, one needs consent.

 Land Control Act, No. 34 of 1967

 Land Planning Act, No. 37 of 1968
 How and When Registration is Effected

 LRA – no time limit, but the sooner the

better.

 There are specific forms which must be

presented in triplicate to the relevant
registry.

 Section886 & 890 Companies Act – need to

register within 42 days to ensure no
fraudulent references when the company is
being wound up.
 FIRM ASSIGNMENTS

July 2012 (resit) – Qn 2

&
July 2014 (resit) – Qn 4 (a)

Nov 2016 – Qn 4
 READING LIST
 Land Act; Sec 2
 Land Registration Act; Sec 24, 25, 28, 46

 Law Of Contract Act; Sec 3

 Stamp Duty Act; Cap 480

 Companies Act; Sec 316

 Land Control Act; No. 34 of 1967

 Land Planning Act; No. 37 of 1968

 Kanyi –vs- Muthiora (1984) KLR 712

 Jason Gitimu Wangara –vs- Martin Munene
Wangara & Others [2013] eKLR; Kerugoya ELC
No. 278 of 2013

 Obiero –vs- Opiyo & Others (1972) HCC No. 44 of

1970, E. A. 227

 Mbui –vs- Mbui (2005) 1 E. A 256

 Esiroyo –vs- Esiroyo (1973) E. A. 388

 Gitwany Investment Ltd –vs- Tajmal Limited & 3

Others [2006]; Nairobi HCC No. 1114 of 2002