Kingmaker Conveyancing 2023

YELLOW: QUESTIONS ASKED BETWEEN 2008-2022
PINK: ANSWERS TO THE ABOVE QUESTIONS

BLUE: WHAT THE COURSE OUTLINE REQUIRES YOU TO KNOW
KENYA
SCHOOL OF LAW
2022/2023 ACADEMIC YEAR
ATP 107: CONVEYANCING
LAW
COURSE OUTLINE
&
ANSWERS
COMPILED BY :
KINGMAKER 2023
TOPIC I:
INTRODUCTI
ON
AND
HISTORY
1.1 CONVEYANCING DEFINITION AND SCOPE

1.1.1 DEFINITION OF CONVEYANCING
1.1.2. THE NATURE OF CONVEYANCING
1.1 CONVEYANCING DEFINITION AND SCOPE
Conveyancing is a term used in legal circles to describe the process of transferring the ownership of property
from one person to another. It involves the preparation and execution of legal documents, including deeds,
contracts, and other instruments that are necessary to transfer the title of the property. The process of
conveyancing is primarily concerned with the transfer of real property, which includes land, buildings, and
other permanent fixtures.
1.1.1 DEFINITION OF CONVEYANCING
In Kenya, conveyancing is defined under the Law of Contract Act, Cap 23, Laws of Kenya, as the transfer of
legal title or an interest in land from one person to another by a written instrument signed by or on behalf of the
transferor. The definition includes all the legal procedures involved in transferring an interest in land, from the
negotiation of the contract to the execution of the transfer instrument.
The Kenya Law Reform Commission defines conveyancing as "the process of transferring ownership of property
from one person to another or from one entity to another." The definition also includes the process of creating,
modifying, or extinguishing an interest in land.
1.1.2. THE NATURE OF CONVEYANCING
Conveyancing is a complex legal process that involves a number of legal procedures, including the drafting of
contracts, verification of titles, searches, and registration of the transfer of the property. The process can be time-
consuming and expensive, and it is important to engage the services of a qualified lawyer or conveyancer to
guide you through the process.
In Kenya, the legal framework for conveyancing is provided for under various statutes, including the Land Act,
Cap 282, Laws of Kenya, the Land Registration Act, Cap 300, Laws of Kenya, the National Land Commission
Act, 2012, and the Stamp Duty Act, Cap 480, Laws of Kenya.
The Land Act provides for the ownership, management, and administration of land in Kenya, while the Land
Registration Act establishes the system of land registration and the procedures for the transfer of land. The
National Land Commission Act, 2012, establishes the National Land Commission, which is responsible for the
management and administration of public land in Kenya. The Stamp Duty Act provides for the payment of
stamp duty on the transfer of property.
In conclusion, conveyancing is an essential legal process that involves the transfer of ownership of property. It is
a complex legal process that requires the expertise of a qualified lawyer or conveyancer to guide you through
the process. The legal framework for conveyancing in Kenya is provided for under various statutes, including
the Land Act, the Land Registration Act, the National Land Commission Act, and the Stamp Duty Act. It is
important to comply with all legal requirements when transferring property to avoid any legal disputes or
challenges
WEEK 2 -3 HISTORICAL AND REGULATORY FRAMEWORK FOR CONVEYANCING

2.1 THE HISTORY OF CONVEYANCING LAW IN THE UNITED KINGDOM FROM 1535 TO 1925
2.2 LAND TENURE SYSTEM IN KENYA PRE-COLONIZATION
2.3 HISTORICAL BACKGROUND OF LAND LAW AND CONVEYANCING IN KENYA FROM 1897
TO 2015
2.1 THE HISTORY OF CONVEYANCING LAW IN THE UNITED KINGDOM FROM 1535 TO 1925
Conveyancing law in the United Kingdom (UK) has a long history dating back to the 16th century. The first
major statute on conveyancing was the Statute of Uses of 1535, which was designed to prevent the use of trusts
to avoid the payment of taxes. The statute declared that a trust would be deemed to be a legal ownership,
thereby subjecting it to taxation.
In the 17th century, a series of statutes were passed to regulate the transfer of property, including the Statute of
Frauds of 1677, which required that all contracts for the sale of land must be in writing and signed by the parties.
The Statute of Enrolments of 1705 required that all conveyances be enrolled with the Court of Chancery within
six months of their execution.
In the 19th century, a number of significant reforms were made to conveyancing law in the UK. The Real
Property Act of 1845 abolished the complex system of land ownership that had evolved over the centuries and
introduced a system of land registration. The Conveyancing and Law of Property Act of 1881 and the Land
Transfer Act of 1897 established a more streamlined system of conveyancing, with standard forms of transfer
and charges.
The Land Registration Act of 1925 completed the modernization of conveyancing law in the UK. It established a
centralized system of land registration, with the Land Registry responsible for maintaining the register of land
ownership and interests.
2.2 LAND TENURE SYSTEM IN KENYA PRE-COLONIZATION
Before the arrival of Europeans, the land tenure system in Kenya was based on communal ownership. Land was
held in trust by the community for the benefit of all its members, and the right to use and occupy land was
determined by customary laws and practices.
The concept of individual land ownership was introduced by the British colonial government in the late 19th
century. The Crown Lands Ordinance of 1902 vested all unoccupied and unalienated land in the Crown, and
provided for the issuance of grants of land to individuals and corporations.
2.3 HISTORICAL BACKGROUND OF LAND LAW AND CONVEYANCING IN KENYA FROM 1897 TO 2015
The legal framework for land law and conveyancing in Kenya has evolved over the years in response to
changing political, economic, and social conditions.
The first major land law in Kenya was the Crown Lands Ordinance of 1902, which established a system of
individual land ownership. This was followed by the Government Lands Act of 1915, which established the
office of the Commissioner of Lands and provided for the administration of public lands.
In 1922, the Native Lands Trust Ordinance was passed, which established a system of trusteeship for African
lands. The ordinance provided for the registration of all African lands in trust and the appointment of trustees to
manage the lands on behalf of the community.
In 1963, Kenya gained independence from British colonial rule. The new government embarked on a program of
land reform, with the aim of addressing the inequalities in land ownership that had arisen under colonialism.
The Land Adjudication Act of 1968 established a system of land adjudication and registration, with the aim of
regularizing land ownership and resolving land disputes.
The Constitution of Kenya, 2010, established a new legal framework for land law and conveyancing. The
constitution recognizes three categories of land ownership: public land, community land, and private land. The
constitution also provides for the establishment of a National Land Commission, which is responsible for the
management and administration of public land.
In 2012, the Land Act, the Land Registration Act of 2012, and the National Land Commission Act of 2012 were
enacted, which together provided a comprehensive framework for land law and conveyancing in Kenya. These
Acts established the legal basis for the registration of title to land, the management and administration of public
land, and the resolution of land disputes.
Under the current legal framework, the registration of title to land is mandatory for all land transactions, and the
Land Registry is responsible for maintaining the register of land ownership and interests. The Land Registration
Act of 2012 introduced electronic land registration and the use of a unified system of land registration across the
country.
In addition to the statutory framework, customary land tenure continues to play an important role in Kenya's
land tenure system. The Land Act recognizes the existence of customary land tenure and provides for its
protection and regulation. However, there have been challenges in implementing these provisions, particularly
in areas where customary land tenure is not recognized by the formal legal system.
In conclusion, the legal framework for land law and conveyancing in Kenya has evolved over time, with
significant reforms made in response to changing political, economic, and social conditions. While the current
legal framework provides a comprehensive framework for land law and conveyancing, there remain challenges
in implementing the law, particularly with respect to the recognition and protection of customary land tenure
2.3.1 THE REGISTRATION OF DOCUMENTS ACT (CAP 285)

2.3.2 THE LAND TITLES ACT (CAP 283) REPEALED
2.3.3 THE GOVERNMENT LANDS ACT (CAP 280) REPEALED
2.3.4 REGISTRATION OF TITLES ACT (CAP 281) REPEALED
2.3.5 THE INDIAN TRANSFER OF PROPERTY ACT OF 1882 REPEALED
2.3.6 THE REGISTERED LAND ACT (CAP 300) REPEALED
2.3.7 THE SECTIONAL PROPERTIES ACT (2020)
2.3.8 THE CONSTITUTION 2010
2.3.9 THE LAND REGISTRATION ACT
2.3.10. THE LAND ACT
2.3.11 COMMUNITY LAND ACT
2.3.1 The Registration of Documents Act (Cap 285)
The Registration of Documents Act (Cap 285) is an Act of Parliament in Kenya that governs the registration of
various documents, including conveyances, leases, mortgages, and other instruments relating to land. The Act
provides for the registration of these documents in order to give them legal effect and to ensure that the rights
and interests of the parties involved are protected.
Under the Act, all documents relating to land transactions must be registered with the relevant government
agency, usually the Land Registry. The Act provides for the form and content of these documents, and also sets
out the procedures for their registration, including the payment of fees and the issuance of certificates of
registration.
The Act also provides for the cancellation, rectification, and amendment of registered documents in certain
circumstances. For example, if a registered document is found to contain errors or omissions, it may be rectified
by the Registrar of Lands. Similarly, if a registered document is cancelled or amended, the Registrar of Lands
must issue a notice to all parties concerned.
2.3.2 The Land Titles Act (Cap 283) Repealed
The Land Titles Act (Cap 283) was an Act of Parliament in Kenya that provided for the registration of land titles
in Kenya. The Act was repealed by the Land Registration Act of 2012, which introduced a new system of land
registration in Kenya.
Under the Land Titles Act, land titles were issued to owners of land, and these titles were considered conclusive
evidence of ownership. The Act provided for the form and content of land titles, and also set out the procedures
for their registration and transfer.
The Act also provided for the cancellation and rectification of land titles in certain circumstances. For example, if
a land title was found to have been obtained fraudulently, it could be cancelled by the Registrar of Titles.
2.3.3 The Government Lands Act (Cap 280) Repealed
The Government Lands Act (Cap 280) was an Act of Parliament in Kenya that governed the administration and
management of government land. The Act was repealed by the Land Act of 2012, which introduced a new
framework for the management of public land in Kenya.
Under the Government Lands Act, the Commissioner of Lands was responsible for the administration and
management of government land. The Act provided for the allocation, lease, and sale of government land, as
well as the resolution of disputes related to government land.
The Act also provided for the establishment of a Land Control Board, which was responsible for regulating the
transfer of land, including the sale and lease of government land.
2.3.4 The Registration of Titles Act (Cap 281) Repealed
The Registration of Titles Act (Cap 281) was an Act of Parliament in Kenya that provided for the registration of
land titles in Kenya. The Act was repealed by the Land Registration Act of 2012, which introduced a new system
of land registration in Kenya.
Under the Registration of Titles Act, land titles were issued to owners of land, and these titles were considered
conclusive evidence of ownership. The Act provided for the form and content of land titles, and also set out the
procedures for their registration and transfer.
2.3.5 The Indian Transfer of Property Act of 1882 Repealed

The Indian Transfer of Property Act of 1882 was a colonial-era law that governed the transfer of property in
India, including Kenya. The Act was repealed by the Land Registration Act of 2012, which introduced a new
framework for the registration of land in Kenya.
Under the Indian Transfer of Property Act, the transfer of property could be made through various means,
including sale, gift, exchange, and lease. The Act provided for the form and content of transfer documents, and
also set out the procedures for their registration and transfer.
The Act also provided for the rights and obligations of parties involved in property transfers, including the
rights and obligations of tenants, mortgagees, and other interested parties.
2.3.6 The Registered Land Act (Cap 300) Repealed
The Registered Land Act (Cap 300) was an Act of Parliament in Kenya that provided for the registration of land
titles in Kenya. The Act was repealed by the Land Registration Act of 2012, which introduced a new system of
land registration in Kenya.
Under the Registered Land Act, land titles were issued to owners of land, and these titles were considered
conclusive evidence of ownership. The Act provided for the form and content of land titles, and also set out the
2.3.7 The Sectional Properties Act (2020)
The Sectional Properties Act (2020) is an Act of Parliament in Kenya that provides for the ownership and
management of sectional properties, such as apartments and townhouses. The Act applies to both new and
existing sectional properties, and provides for their registration and transfer.
Under the Act, sectional properties are registered as individual units, and owners are issued with certificates of
ownership for their units. The Act provides for the formation and management of sectional property
management companies, which are responsible for the management and maintenance of common areas and
facilities.
The Act also provides for the resolution of disputes related to sectional properties, including disputes between
owners and management companies.
2.3.8 The Constitution 2010
The Constitution of Kenya 2010 is the supreme law of Kenya, and provides for the legal framework governing
land ownership and conveyancing in Kenya. The Constitution recognizes and protects the rights of all citizens to
own property, and provides for the equitable distribution of land.
Under the Constitution, all land in Kenya is held by the state on behalf of the people, and individuals and
communities have the right to hold and use land in accordance with the law. The Constitution also provides for
the protection of the rights of women, children, and other vulnerable groups in relation to land ownership and
use.
2.3.9 The Land Registration Act
The Land Registration Act is an Act of Parliament in Kenya that provides for the registration of land and
interests in land in Kenya. The Act was enacted in 2012 and introduced a new system of land registration in
Kenya.
Under the Act, all land in Kenya is required to be registered, and owners are issued with certificates of title. The
Act also provides for the registration of leases, mortgages, and other interests in land, and sets out the
The Act also provides for the cancellation, rectification, and amendment of registered documents in certain
circumstances. For example, if a registered document is found to contain errors or omissions, it may be rectified
by the Registrar of Lands. Similarly, if a registered document is cancelled or amended, the Registrar of Lands
must issue a notice to all parties concerned.
2.3.10 The Land Act
The Land Act is an Act of Parliament in Kenya that provides for the administration and management of land in
Kenya. The Act was enacted in 2012 and introduced a new framework for the management of land in Kenya.
Under the Act, all land in Kenya is held by the state on behalf of the people, and individuals and communities
have the right to hold and use land in accordance with the law. The Act also provides for the equitable
distribution of land, and sets out the procedures for the allocation, management, and transfer of land.
The Act provides for the establishment of the National Land Commission, which is responsible for the
management and administration of public land in Kenya. The Commission is also responsible for the
adjudication and settlement of land disputes, and for the management of land records.
The Act also provides for the establishment of the Land Control Boards, which are responsible for the
management and control of agricultural land in Kenya. The Boards are responsible for the allocation and
transfer of agricultural land, and for the settlement of disputes related to agricultural land.
2.3.11 The Community Land Act
The Community Land Act is an Act of Parliament in Kenya that provides for the recognition, protection, and
management of community land in Kenya. The Act was enacted in 2016 and is aimed at promoting the equitable
and sustainable use of community land.
Under the Act, community land is defined as land that is owned and managed by communities or groups of
individuals under customary law. The Act provides for the registration and titling of community land, and sets
out the procedures for the allocation, management, and transfer of community land.
The Act also provides for the protection of the rights of women, children, and other vulnerable groups in
relation to community land ownership and use. The Act requires that women be included in all decision-making
processes related to community land, and provides for their right to own and inherit community land.
In conclusion, the history of conveyancing law in Kenya has been shaped by a number of legal instruments,
including Acts of Parliament, regulations, and case law. These legal instruments have been aimed at promoting
the efficient and transparent transfer of land ownership in Kenya, and at promoting the equitable distribution
and management of land resources. The current legal framework governing conveyancing in Kenya is grounded
in the Constitution of Kenya 2010, which recognizes and protects the rights of all citizens to own property and
promotes the equitable distribution and use of land.
2.4 DEFINE LAND AND EXCEPTIONS TO THE DEFINITION

2.5 DEFINE INTERESTS IN LAND
2.5.1 FREEHOLD
2.5.2. LEASEHOLD
The definition of land in Kenya is provided under Section 2 of the Land Act. The Act defines land as the soil, the
surface of the earth, and all natural resources, whether below or above the surface of the earth, including all
minerals and water.
However, there are exceptions to this definition. The Act specifically excludes the following from the definition
of land:
Buildings and other structures that are affixed to the land

Standing timber and crops
Fish in a natural watercourse
Game in a wildlife reserve
2.5 Define Interests in Land
Interests in land refer to the rights or entitlements that an individual or entity may have in relation to a piece of
land. In Kenya, there are two main types of interests in land: freehold and leasehold.
2.5.1 Freehold
Freehold is the highest form of interest in land. It gives the owner the absolute and permanent right to use and
occupy the land. The owner is also entitled to dispose of the land as they see fit, subject to the law.
Under Kenyan law, freehold interests in land are created by way of a grant or a conveyance. A grant is a
document that creates a new freehold interest in land, while a conveyance transfers an existing freehold interest
in land from one party to another.
2.5.2 Leasehold
Leasehold is a form of interest in land where the owner of the land grants the right to occupy and use the land to
another party for a specified period of time. The party who is granted the leasehold interest is referred to as the
tenant or lessee, while the owner of the land is referred to as the landlord or lessor.
Under Kenyan law, leasehold interests in land are created by way of a lease agreement. The lease agreement sets
out the terms and conditions of the lease, including the duration of the lease, the rent payable, and the
obligations of the landlord and tenant.
The Land Act, the Land Registration Act, and the Landlord and Tenant (Shops, Hotels, and Catering
Establishments) Act are some of the legal provisions in Kenya that govern the creation, registration, and
management of interests in land.
In conclusion, understanding the definition of land and the different types of interests in land is essential in the
practice of conveyancing law in Kenya. Conveyancers must have a comprehensive understanding of the legal
provisions and statutes that govern land ownership and use in Kenya, in order to provide effective legal advice
and services to their clients.
2.6. CATEGORIES OF LAND UNDER THE CONSTITUTION

2.6.1 PUBLIC LAND
2.6.2 PRIVATE LAND
2.6.3 COMMUNITY LAND
2.6 Categories of Land under the Constitution
The Constitution of Kenya, 2010 categorizes land into three main categories: public land, private land, and
community land.
2.6.1 Public Land
Public land refers to land that is owned by the national government, county governments, or other state organs.
This includes land that is not allocated to any particular person or entity, such as roads, public parks, and water
bodies.
Under the Land Act, public land can be transferred to private individuals or entities through allocation,
concession, lease, or any other legal means. However, the process of transferring public land is heavily
regulated, and it must be done in a transparent and accountable manner.
Conveyancing of public land requires compliance with various legal provisions, such as the Land Act, the
Constitution, and the Public Procurement and Asset Disposal Act.
2.6.2 Private Land
Private land refers to land that is owned by individuals, corporations, or other private entities. Private land
ownership is protected under the Constitution, and individuals have the right to own and use their land as they
see fit, subject to the law.
Conveyancing of private land involves the transfer of ownership from one party to another through a process
known as a sale or a transfer of ownership. The process involves various legal requirements, including the
preparation of legal documents, payment of stamp duty, registration of the transfer, and compliance with zoning
and environmental regulations.
2.6.3 Community Land
Community land refers to land that is owned by communities or groups of people who have a customary
interest in the land. This includes land that is used for cultural, religious, or traditional purposes, as well as land
that is held in trust by county governments.
The Community Land Act, 2016 provides for the recognition, protection, and registration of community land
rights in Kenya. The Act establishes a framework for the management and administration of community land,
including the process of converting community land into private land.
Conveyancing of community land requires compliance with the Community Land Act, as well as other relevant
legal provisions and statutes in Kenya.
In conclusion, understanding the categories of land under the Constitution is essential in the practice of
conveyancing law in Kenya. Conveyancers must have a comprehensive understanding of the legal provisions
and statutes that govern land ownership and use in Kenya, in order to provide effective legal advice and
services to their clients.
2.7. PROCEDURES FOR CONVERTING CATEGORIES OF LAND

Private to Public Conversion:
The process of converting private land to public land is known as acquisition. The government can acquire
private land for public use through various legal procedures. The following are the procedures for converting
private land to public land:
a. Identification of the land: The first step in the process of acquiring private land is to identify the land that is
needed for public use.
b. Notification of the landowner: The landowner must be notified of the intention to acquire their land. The
notification must be in writing and must include the purpose for which the land is being acquired.
c. Valuation of the land: A valuation of the land must be conducted by a government-appointed valuer. The
landowner must be given an opportunity to object to the valuation.
d. Negotiation for compensation: The government must negotiate with the landowner for compensation for the
land being acquired. If the parties cannot agree on compensation, the matter can be referred to a court of law.
e. Payment of compensation: Once the compensation has been agreed upon, the government must pay the
landowner the agreed amount.
f. Registration of the land: Once the compensation has been paid, the land must be registered as public land.
Relevant legal provisions and statutes:
The relevant legal provisions and statutes for the conversion of private land to public land in Kenya include the
Land Act, the Land Registration Act, and the Constitution of Kenya.
Public to Private Conversion:

The process of converting public land to private land is known as alienation. The conversion of public land to
private land is highly regulated and can only be done in specific circumstances. The following are the procedures
for converting public land to private land:
a. Identification of the land: The first step in the process of converting public land to private land is to identify
the land that is available for alienation.
b. Approval of the National Land Commission: The National Land Commission must approve the alienation of
public land. The approval process involves an assessment of the suitability of the land for alienation.
c. Valuation of the land: A valuation of the land must be conducted by a government-appointed valuer. The land
must be valued at its market value.
d. Auction of the land: The land must be auctioned to the highest bidder. The auction must be conducted in a
transparent and competitive manner.
e. Payment for the land: The successful bidder must pay for the land within a specified period. The payment
must be made in full.
f. Registration of the land: Once the payment has been made, the land must be registered as private land
2.8. CUSTOMARY LAND AND OVERRIDING INTERESTS
2.8 Customary Land and Overriding Interests in Conveyancing in Kenya
Customary land refers to land that is held under customary law and practices by various communities in Kenya.
Customary land is usually held communally and is not registered under the Land Registration Act, 2012.
Customary land is governed by various customary laws and practices that are unique to each community.
Overriding interests, on the other hand, are interests that are superior to any other interests in land. Overriding
interests may exist despite the fact that they are not registered under the Land Registration Act, 2012.
Customary Land
Customary land is governed by various customary laws and practices that are unique to each community.
Customary law is recognized under Article 11(1) of the Constitution of Kenya, 2010, which provides that
"customary law is recognized as part of the national law and shall apply to the extent that it is not repugnant to
justice and morality or inconsistent with the Constitution or any written law." Customary law is therefore
recognized as a source of law in Kenya.
Customary land is not registered under the Land Registration Act, 2012. However, the government has
established a framework for the administration of customary land under the Community Land Act, 2016. The
Community Land Act provides for the recognition, protection, and registration of community land. The Act also
provides for the establishment of community land management committees to manage community land.
In addition, the Land Registration Act, 2012, provides for the conversion of customary land to freehold or
leasehold land. The Act provides that a person who holds customary land may apply to have the land converted
to freehold or leasehold land. The conversion process involves a survey of the land and the preparation of a
plan, which is submitted to the Land Registrar. The Land Registrar may then issue a certificate of title for the
converted land.
Overriding Interests
Overriding interests are interests that are superior to any other interests in land. Overriding interests may exist
despite the fact that they are not registered under the Land Registration Act, 2012. Section 29 of the Act provides
for the recognition of certain overriding interests. The section provides that:
"29. Overriding interests

(1) The following interests shall be capable of binding a purchaser of registered land, whether or not he has
actual knowledge of them—
(a) any easement or other right in or over registered land which, at the time of the purchase, is in actual use or
enjoyed by the owner of any adjoining land or property, or any right acquired by prescription or under the
Limitation of Actions Act (Cap. 22);
(b) any public right of way or other public right over registered land;
(c) any lease or tenancy granted for a term not exceeding three years;
(d) any right of a person in actual occupation of registered land, including any equitable interest subsisting at the
time of the purchase; and
(e) any mortgage or charge on registered land, and any restrictive covenant affecting the use of the land, but
subject to any prior interest in the land excepted from the operation of this section by this Act or any other law."
The section provides for the recognition of certain overriding interests that may bind a purchaser of registered
land, whether or not the purchaser has actual knowledge of them. The interests include easements, public rights
of way, leases or tenancies granted for a term not exceeding three years, and rights of a person in actual
occupation of registered land, including any equitable interest subsisting at the time of the purchase. The section
also provides for the recognition of mortgages or charges on registered land and restrictive covenants affecting
the use of the land
2.9. IMPORTANCE OF LAND

2.9 Importance of Land in Kenya
Land is a valuable resource in Kenya and plays a crucial role in the economic, social, and cultural development
of the country. The importance of land can be seen in various sectors of the economy, including agriculture,
forestry, mining, tourism, and urban development. In this section, we will discuss the importance of land in
Kenya.
Agriculture
Agriculture is the backbone of the Kenyan economy, and land plays a crucial role in this sector. The majority of
the population relies on agriculture for their livelihoods, and land is the primary resource used for farming.
Land is used for growing various crops, including maize, wheat, tea, coffee, and horticultural crops. Land also
provides grazing areas for livestock, which is an important source of income for many Kenyans.
Forestry
Forestry is an essential sector in Kenya, and land is a critical resource in this sector. Land is used for establishing
and managing forests, which provide a range of environmental and economic benefits, including water
catchment protection, soil conservation, and timber production. Forests also provide a habitat for wildlife and
contribute to climate change mitigation and adaptation.
Mining
Land is also an essential resource in the mining sector. Kenya has significant mineral deposits, including
titanium, gold, coal, and iron ore. Land is used for prospecting, exploration, and mining activities. The mining
sector is crucial to the Kenyan economy, as it contributes to the generation of revenue, employment, and foreign
exchange earnings.
Tourism
Tourism is an important sector in Kenya, and land is a critical resource in this sector. Land is used for
establishing and managing national parks, game reserves, and wildlife conservancies, which are major tourist
attractions. These areas provide a habitat for wildlife, which is an important draw for tourists. Tourism
contributes significantly to the Kenyan economy, generating revenue, employment, and foreign exchange
earnings.
Urban Development
Land is a critical resource in urban development, as it is used for establishing and developing urban centers.
Land is used for residential, commercial, and industrial development. Urban centers provide employment
opportunities, housing, and infrastructure such as roads, schools, and hospitals.
Culture and Heritage

Land also plays an essential role in Kenya's culture and heritage. Land is used for establishing and preserving
cultural and heritage sites, including archaeological sites, museums, and monuments. These sites contribute to
the preservation of Kenya's rich cultural heritage and history.
In conclusion, land is a valuable resource in Kenya and plays a crucial role in the economic, social, and cultural
development of the country. The importance of land can be seen in various sectors of the economy, including
agriculture, forestry, mining, tourism, urban development, and culture and heritage. It is essential to ensure that
land is managed sustainably to ensure its long-term availability and productivity
2.10. PRINCIPLES AND GOALS OF REGISTRATION

The registration of land is a crucial aspect of conveyancing in Kenya. It is governed by several legal provisions
and statutes, including the Land Registration Act, the Land Act, and the Constitution of Kenya. The principles
and goals of registration of land in Kenya are aimed at promoting transparency, efficiency, and security of land
transactions.
Transparency
The principle of transparency requires that all information regarding land ownership and transactions should be
readily available to the public. This is achieved through the creation of a centralized database of land records,
which is accessible to the public. The Land Registration Act provides for the establishment of a National Land
Information Management System (NLIMS), which is a database that contains information on all registered land
in Kenya.
Efficiency
Efficiency in land registration involves the use of modern technology and streamlined processes to ensure that
land transactions are completed in a timely and efficient manner. The Land Registration Act provides for the use
of electronic systems in land registration, including electronic signatures, electronic records, and electronic
payments.
Security
The principle of security aims to protect the rights of landowners and prevent fraudulent transactions. The Land
Registration Act provides for the registration of land titles, which provides legal proof of ownership. The Act
also provides for the establishment of a land adjudication and settlement process, which aims to resolve land
disputes and prevent conflict.
Goals of registration
The goals of registration of land in Kenya are as follows:
a. To provide legal proof of ownership
Registration of land provides legal proof of ownership, which is necessary for the transfer of land ownership and
for obtaining financing.
b. To facilitate land transactions
Registration of land facilitates land transactions by providing a secure and efficient means of transferring
ownership.
c. To promote security of tenure
Registration of land promotes security of tenure by protecting the rights of landowners and preventing
fraudulent transactions.
d. To promote sustainable land use
Registration of land promotes sustainable land use by ensuring that land is used in accordance with the law and
for its intended purpose.
Relevant legal provisions and statutes
The Land Registration Act, the Land Act, and the Constitution of Kenya provide for the principles and goals of
registration of land in Kenya. These statutes outline the requirements and procedures for registration of land
titles, the establishment of land registries, and the use of electronic systems in land registration
2.10.1 GENERAL ROLE OF THE CONVEYANCER

In Kenya conveyancing, a conveyancer plays a critical role in facilitating the transfer of property from one
person to another. The conveyancer is a legal professional who is involved in the preparation and execution of
legal documents required in the process of transferring ownership of land or property. The conveyancer ensures
that the transfer is done in compliance with all the relevant legal requirements and that the rights of all parties
involved are protected.
The general role of a conveyancer in Kenya conveyancing includes the following:
Preparation of legal documents: The conveyancer prepares legal documents required in the transfer of property,
including sale agreements, transfers, leases, and mortgages, among others. The conveyancer ensures that all
documents are drafted in compliance with the relevant laws and regulations.
Due diligence: The conveyancer conducts due diligence on the property to be transferred to ensure that there are
no legal encumbrances, such as liens or unpaid taxes, that could affect the transfer. The conveyancer also ensures
that the seller has the legal right to sell the property.
Verification of identity: The conveyancer verifies the identity of all parties involved in the transaction, including
the buyer, seller, and witnesses. This is done to prevent fraud and to ensure that all parties are legally entitled to
participate in the transaction.
Registration of documents: The conveyancer facilitates the registration of all legal documents related to the
transfer of property with the relevant government agencies. This includes the registration of transfer documents
with the Ministry of Lands and the registration of mortgages with the Central Bank of Kenya.
Escrow services: The conveyancer may act as an escrow agent, holding funds in trust until all the conditions of
the sale have been met. This ensures that both the buyer and seller are protected and that the transfer is
completed as agreed.
Legal advice: The conveyancer provides legal advice to the parties involved in the transaction on matters related
to the transfer of property, including tax implications and legal requirements.
The role of a conveyancer in Kenya conveyancing is crucial in ensuring that property transfers are done legally
and efficiently. The Conveyancing and Law of Property Act (Cap 58) and the Law Society of Kenya Act (Cap
18A) provide for the regulation of conveyancers in Kenya, ensuring that they are qualified and adhere to
professional standards in the execution of their duties.
2.11.2 WRITING, EXECUTION, ATTESTATION AND VERIFICATION.
Writing, execution, attestation, and verification are important aspects of conveyancing in Kenya. These
procedures ensure that the transfer of land is done legally and transparently. In this section, we will discuss
the legal provisions and statutes related to writing, execution, attestation, and verification in conveyancing
in Kenya.
Writing
The writing of conveyancing documents is governed by the Law of Contract Act (Cap 23) of Kenya.
According to Section 3 of the Act, an agreement must be in writing if it involves the sale or other disposition
of land or any interest in land. This means that any agreement related to the transfer of land must be in
writing, signed by the parties involved, and must contain all the essential terms of the agreement.
Execution
Execution refers to the signing of the conveyancing documents by the parties involved. The Land
Registration Act (Cap 300) of Kenya provides that all conveyancing documents must be executed by the
parties in the presence of a witness. The witness must be a lawyer, magistrate, or commissioner for oaths,
and must sign the document to certify that the parties executed the document in their presence.
Attestation
Attestation refers to the act of witnessing the signing of the conveyancing document. The Law of Contract
Act (Cap 23) of Kenya provides that the attestation of a conveyancing document must be done in the
presence of two or more witnesses. The witnesses must be present at the time the parties sign the document
and must sign the document to certify that they witnessed the signing of the document.
Verification
Verification refers to the process of confirming the identity and ownership of the land being transferred. The
Land Registration Act (Cap 300) of Kenya provides that the ownership of land must be verified by
conducting a search at the Ministry of Lands. This search is conducted to confirm that the person selling the
land is the legal owner of the land and has the right to transfer the land.
In conclusion, the process of writing, execution, attestation, and verification of conveyancing documents in
Kenya is governed by various legal provisions and statutes. It is important for parties involved in the
transfer of land to adhere to these provisions to ensure that the transfer of land is done legally and
transparently.
TOPIC 2:
CONTRACTS
FOR
THE
SALE
OF
LAND
The Pre-Contract Stage and the Initial Client Interview
3.1 INSTRUCTIONS AND BRIEF
The pre-contract stage is a crucial part of the conveyancing process, where a client seeks the services of a
conveyancer to handle the legal aspects of buying or selling property. The initial client interview is the first stage
in the conveyancing process, and it involves the conveyancer gathering relevant information about the client, the
property in question, and the transaction at hand. In Kenya, the pre-contract stage and initial client interview are
guided by various legal provisions and statutes, including the Advocates Act, the Law Society of Kenya (LSK)
regulations, and the Conveyancing and Advocacy Rules.
3.1.1 INSTRUCTIONS AND BRIEF

The initial client interview begins with the client providing instructions and a brief to the conveyancer. The
instructions and brief should include the client's details, the property's details, and the terms of the proposed
transaction. The client should provide the conveyancer with all the necessary documents, including the title
deed, search report, survey plans, and land rent clearance certificate, among others.
The conveyancer must review the instructions and brief carefully and advise the client on the implications of the
proposed transaction. The conveyancer should also advise the client on any potential risks or liabilities
associated with the transaction, including any disputes or encumbrances on the property. If the conveyancer
identifies any issues, they must notify the client and seek instructions on how to proceed.
3.1.2 CONFIRMATION OF INSTRUCTIONS

Once the conveyancer has reviewed the instructions and brief, they must confirm the instructions in writing. The
confirmation should include the terms of engagement, the fee structure, and any other relevant terms and
conditions. The conveyancer should also provide the client with an estimate of the total cost of the transaction,
including any additional expenses such as stamp duty and registration fees.
The confirmation of instructions should also include a list of the documents required for the transaction, any
deadlines, and the proposed timeline for completing the transaction. The conveyancer should ensure that the
client understands the terms of engagement and signs the confirmation of instructions before proceeding with
the transaction.
3.1.3 CONFLICT OF INTEREST

During the initial client interview, the conveyancer must also identify and address any potential conflicts of
interest. A conflict of interest may arise where the conveyancer has a personal or professional relationship with
the other party to the transaction, or where there is a conflict between the interests of the client and the interests
of the conveyancer.
If the conveyancer identifies a conflict of interest, they must inform the client and seek their consent to proceed
with the transaction. Alternatively, the conveyancer may decline to act for the client if the conflict of interest
cannot be resolved.
In conclusion, the pre-contract stage and the initial client interview are critical components of the conveyancing
process in Kenya. The conveyancer must ensure that they gather all relevant information, confirm instructions in
writing, and identify and address any potential conflicts of interest. This helps to ensure that the transaction is
carried out smoothly and that the interests of the client are protected throughout the conveyancing process
3.2 PARTIES TO A TRANSACTION

PURCHASER- VENDOR, LESSEE- LESSOR, MORTGAGEE- MORTGAGOR,
In a conveyancing transaction in Kenya, there are several parties involved, including the purchaser, vendor,
lessee, lessor, mortgagee, and mortgagor. Each of these parties has specific roles and responsibilities in the
transaction, and it is important to understand their respective positions and obligations.
3.2.1 Purchaser-Vendor Relationship

The purchaser is the person or entity buying the property, while the vendor is the person or entity selling the
property. In a conveyancing transaction, the purchaser's solicitor will typically request for the property's title
deed from the vendor's solicitor. The vendor's solicitor will then send the title deed and other relevant
documents to the purchaser's solicitor for verification. After the purchaser's solicitor has confirmed that the title
is clean and the property is legally transferable, the purchaser will make payment to the vendor, and the transfer
of the property will take place.
3.2.2 Lessee-Lessor Relationship

In a lease agreement, the lessee is the person or entity leasing the property, while the lessor is the person or
entity renting out the property. The lease agreement outlines the terms and conditions of the lease, including the
rent amount, duration of the lease, and other obligations of the parties. The lessee is responsible for paying the
rent and complying with the terms of the lease, while the lessor is responsible for maintaining the property in
good condition and ensuring that the lessee enjoys quiet and peaceful enjoyment of the property.
3.2.3 Mortgagee-Mortgagor Relationship

A mortgage is a loan secured against a property. The mortgagee is the lender providing the loan, while the
mortgagor is the borrower receiving the loan. In a mortgage agreement, the mortgagor transfers the legal
ownership of the property to the mortgagee as security for the loan. The mortgagee has the right to take
possession of the property and sell it to recover the loan amount if the mortgagor fails to repay the loan as
agreed. The mortgagor is responsible for paying the loan amount, including interest, as agreed, and for
maintaining the property in good condition.
Overall, understanding the roles and responsibilities of the various parties in a conveyancing transaction is
crucial to ensure that the transaction is conducted smoothly and legally. It is important to work with
experienced and knowledgeable conveyancing solicitors to ensure that your interests are protected throughout
the transaction
3.2.1 POWER OF ATTORNEY

3.2.1.1 SPECIFIC POWER OF ATTORNEY
3.2.1.2 GENERAL POWER OF ATTORNEY
A power of attorney is a legal document that authorizes one person to act on behalf of another person in a legal
or financial matter. In the context of conveyancing in Kenya, a power of attorney may be used by parties to the
transaction to delegate authority to their attorneys or agents to act on their behalf in various aspects of the
transaction.
3.2.1 POWER OF ATTORNEY
Under Kenyan law, the power of attorney is governed by the Powers of Attorney Act, Cap 64. The Act defines a
power of attorney as "an instrument empowering any person to act for another in the manner and to the extent
specified therein." The Act provides for two types of powers of attorney, namely specific power of attorney and
general power of attorney.
3.2.1.1 SPECIFIC POWER OF ATTORNEY
A specific power of attorney is one that is granted for a specific purpose and for a limited period. It authorizes
the attorney to perform specific acts on behalf of the grantor. In the context of conveyancing, a specific power of
attorney may be used to delegate authority to an attorney or agent to sign documents, pay fees, or perform other
specific tasks related to the transaction.
Section 2 of the Powers of Attorney Act provides that a specific power of attorney must be in writing, signed by
the grantor, and attested by at least one witness. The Act further provides that the attorney must act within the
limits of the authority granted and must not exceed such authority.
3.2.1.2 GENERAL POWER OF ATTORNEY
A general power of attorney, on the other hand, is one that authorizes the attorney to act on behalf of the grantor
in a wide range of matters. It confers broad powers on the attorney to act on behalf of the grantor. In the context
of conveyancing, a general power of attorney may be used to delegate authority to an attorney or agent to act on
behalf of the grantor in various aspects of the transaction.
Section 3 of the Powers of Attorney Act provides that a general power of attorney must also be in writing, signed
by the grantor, and attested by at least one witness. The Act further provides that a general power of attorney
may be revoked by the grantor at any time.
In conclusion, the use of a power of attorney in conveyancing transactions in Kenya is common. Parties to a
transaction may use a specific or general power of attorney to delegate authority to their attorneys or agents to
act on their behalf in various aspects of the transaction. The Powers of Attorney Act provides for the
requirements for executing a valid power of attorney and the scope of the authority granted
3.3 OTHER PROFESSIONALS IN THE TRANSACTION

3.3.1 ESTATE AGENTS
3.3.2 LAND VALUERS
3.3.3 ARCHITECTS
3.3.4 PHYSICAL PLANNERS
3.3.5 LAND SURVEYORS
3.3.6 EAI PROFESSIONALS
In a conveyancing transaction, there are various professionals who play a crucial role in ensuring the successful
transfer of property. These professionals work together to ensure that the transaction is legally binding, and that
both parties receive a fair deal. The following are some of the professionals involved in a conveyancing
transaction in Kenya:
3.3.1 Estate Agents
Estate agents are licensed professionals who assist clients in buying, selling, or renting property. They work on
behalf of clients to ensure that they get the best possible deal. Estate agents are responsible for marketing the
property, arranging viewings, and negotiating the terms of the transaction.
In Kenya, estate agents are regulated by the Estate Agents Registration Board, which operates under the
Ministry of Lands and Physical Planning. The board is responsible for registering and licensing estate agents
and ensuring that they comply with ethical and professional standards.
3.3.2 Land Valuers
Land valuers are professionals who assess the value of property. They provide clients with a comprehensive
report on the value of the property, which is used in determining the price of the property. Land valuers use
various techniques to determine the value of property, including market analysis, cost analysis, and income
analysis.
In Kenya, land valuers are regulated by the Valuers Registration Board, which operates under the Ministry of
Lands and Physical Planning. The board is responsible for registering and licensing land valuers and ensuring
that they comply with ethical and professional standards.
3.3.3 Architects
Architects are professionals who design buildings and other structures. They work with clients to design
structures that meet their needs while also complying with local building codes and regulations. Architects are
responsible for creating detailed plans and drawings of the structure, which are used by builders and
contractors to construct the structure.
In Kenya, architects are regulated by the Board of Registration of Architects and Quantity Surveyors, which
operates under the Ministry of Lands and Physical Planning. The board is responsible for registering and
licensing architects and ensuring that they comply with ethical and professional standards.
3.3.4 Physical Planners
Physical planners are professionals who design and plan the use of land. They work with clients to develop
plans for the use of land, taking into account environmental, social, and economic factors. Physical planners are
responsible for ensuring that land use is sustainable and that it meets the needs of the community.
In Kenya, physical planners are regulated by the Physical Planners Registration Board, which operates under the
Ministry of Lands and Physical Planning. The board is responsible for registering and licensing physical
planners and ensuring that they comply with ethical and professional standards.
3.3.5 Land Surveyors
Land surveyors are professionals who measure and map land. They use specialized equipment to measure the
boundaries of the property and create a detailed map of the property. Land surveyors are responsible for
ensuring that the property boundaries are accurate and that the property is properly identified.
In Kenya, land surveyors are regulated by the Surveyors Registration Board, which operates under the Ministry
of Lands and Physical Planning. The board is responsible for registering and licensing land surveyors and
ensuring that they comply with ethical and professional standards.
3.3.6 EAI Professionals
EAI professionals are professionals who provide environmental, social, and governance advisory services. They
work with clients to ensure that their property transactions are sustainable and that they comply with
environmental, social, and governance standards. EAI professionals are responsible for providing advice on
issues such as environmental impact, community relations, and governance.
In Kenya, EAI professionals are not yet regulated by any specific board or ministry. However, there are various
professional organizations that provide guidance on ethical and professional standards for EAI professionals
3.4 DUE DILIGENCE

3.4.1 PRE-CONTRACT INQUIRIES
3.4.2 INVESTIGATION OF TITLE,
SEARCHES, NECESSITY OF
3.4.2.1 OFFICIAL & PERSONAL, HISTORICAL, PRE-CONTRACT, PRE & POST
REGISTRATION
3.4.2.2 OTHER SEARCHES THAT COMPRISE DUE DILIGENCE
3.4.2.2 DEDUCTION OF TITLE AND REQUISITIONS
3.4.2.3 INSPECTION OF PROPERTY
3.4.3 REQUISITIONS
3.4 Due Diligence in Conveyancing
Due diligence is an important part of the pre-contract stage in conveyancing transactions. It involves a thorough
investigation of the property to ensure that the buyer or the lender has a clear understanding of the title,
ownership, and any issues associated with the property. Due diligence is necessary to minimize the risks of a
transaction and ensure that the parties are fully aware of the legal implications of the transaction.
3.4.1 Pre-Contract Inquiries
Pre-contract inquiries involve a set of standard questions that the conveyancer will ask the seller or the seller’s
representative about the property. The purpose of pre-contract inquiries is to gather basic information about the
property and ensure that the seller provides full disclosure about any known issues or defects associated with
the property.
3.4.2 Investigation of Title, Searches, and Inspection of Property
A conveyancer must conduct a thorough investigation of the title to ensure that the seller has the legal right to
sell the property and that there are no encumbrances or defects in the title. This investigation involves various
types of searches, including official, personal, historical, pre-contract, and pre and post-registration searches.
Official searches involve a search of the relevant land registry records to verify the ownership and any other
interests registered against the property. Personal searches involve a search of the relevant bankruptcy and
insolvency records to ensure that the seller is not bankrupt or insolvent. Historical searches involve a search of
historical documents, such as old deeds and maps, to ensure that the title is clear.
Pre-contract searches involve a search of the relevant local authority records to ensure that there are no
planning, building, or environmental issues associated with the property. Pre and post-registration searches
involve a search of the relevant land registry records before and after the transaction to ensure that the
registration has been completed accurately.
In addition to the above searches, the conveyancer may also conduct an inspection of the property to identify
any physical defects or issues with the property. This may involve a site visit or a review of any available survey
reports.
3.4.3 Requisitions
Once the conveyancer has completed the due diligence process, they may raise requisitions with the seller or the
seller’s representative. Requisitions are requests for additional information or clarification on any issues
identified during the due diligence process. The seller is required to respond to the requisitions to the
satisfaction of the buyer or the lender before the transaction can proceed.
In conclusion, due diligence is a crucial part of the pre-contract stage in conveyancing transactions in Kenya. It
involves a thorough investigation of the property to ensure that the buyer or the lender has a clear
understanding of the title, ownership, and any issues associated with the property. A conveyancer must conduct
a range of searches, including official, personal, historical, pre-contract, and pre and post-registration searches,
and may also conduct an inspection of the property. Once the due diligence process is complete, the
conveyancer may raise requisitions with the seller or the seller’s representative to clarify any issues identified
during the process
TOPIC 2:
THE
CONTRACT
STAGE
4.1 LAW OF CONTRACT AND BASIC REQUIREMENTS OF AN ENFORCEABLE CONTRACT GENERALLY
The law of contract in Kenya is governed by the Contracts Act, which lays down the basic principles and
requirements for the formation and enforceability of contracts. A contract is an agreement between two or more
parties that creates legally binding obligations on the parties involved. For a contract to be enforceable, it must
meet certain basic requirements, which include:
Offer and Acceptance: The first requirement for a contract is that there must be an offer made by one party and
an acceptance by the other party. The offer must be clear and unequivocal, and the acceptance must be
unqualified and communicated to the offeror.
Intention to create legal relations: There must be an intention by the parties to create legally binding obligations.
In general, agreements of a social or domestic nature are not intended to create legal relations.
Consideration: A contract must be supported by consideration, which is the price or benefit that each party
receives or expects to receive as a result of the contract. Consideration must be sufficient but need not be
adequate.
Capacity: The parties to the contract must have legal capacity to enter into the contract. This means that they
must be of legal age and sound mind.
Free Consent: The parties to the contract must give their consent freely and voluntarily, without any undue
influence, coercion, or misrepresentation.
Legality of Object: The object of the contract must be lawful. Contracts that are illegal or against public policy are
not enforceable.
In addition to the above requirements, there are also other legal principles that apply to the formation and
enforceability of contracts in Kenya. These include the principle of privity of contract, which means that only
parties to a contract can enforce its terms; and the principle of freedom of contract, which allows parties to enter
into any lawful agreement they wish.
The Contracts Act also provides for certain types of contracts that must be in writing to be enforceable, such as
contracts for the sale of land, leases of more than three years, guarantees, and contracts for the transfer of shares
in a company. Section 7 of the Act requires that these contracts be in writing, signed by the parties, and contain
all the essential terms of the agreement.
Furthermore, the Law of Contract also recognises the concept of unilateral contracts. A unilateral contract is a
contract in which one party makes a promise in exchange for the other party's performance. These types of
contracts are binding once the act is performed, and no acceptance is required.
In conclusion, the Law of Contract in Kenya is a vital aspect of conveyancing transactions, and it is important
that parties understand the basic requirements for the formation and enforceability of contracts. The Contracts
Act provides a framework for the formation and interpretation of contracts, and parties must ensure that their
contracts comply with the legal requirements and principles set out in the Act
4.2 PARTS OF A SALE AGREEMENT, DRAFTS AND ENGROSSMENTS.

In Kenya's conveyancing, a sale agreement is a written contract between the buyer and the seller detailing the
terms of the transaction. The sale agreement is essential in a conveyancing transaction as it outlines the legal
obligations of both parties involved in the transaction. The agreement should contain specific clauses that ensure
the transaction is valid, enforceable, and legally binding. The following are the parts of a sale agreement in
conveyancing:
Parties involved: The first part of the sale agreement should identify the parties involved in the transaction,
including the buyer and the seller.
Property description: The agreement should contain a detailed description of the property being sold, including
the location, size, and boundaries.
Purchase price and payment terms: The purchase price should be clearly stated in the agreement, along with any
payment terms, including the deposit and the payment schedule.
Conditions of sale: The agreement should outline any conditions that must be met before the sale is completed,
such as obtaining a mortgage or a land search.
Transfer of ownership: The agreement should include the details of the transfer of ownership, including the date
of transfer and any registration requirements.
Warranties: The seller should provide warranties to the buyer, including the warranty of title, stating that they
have the legal right to sell the property.
Indemnity clauses: The agreement should include indemnity clauses to protect both parties in case of any
unforeseen liabilities or damages.
Drafts and Engrossments:

Once the sale agreement is finalized, it must be written up in draft form. The draft is reviewed by both parties
and their legal representatives to ensure that it accurately reflects the agreed-upon terms. Once any necessary
revisions are made, the draft is then engrossed, or written in final form, and signed by both parties.
In Kenya, the Law of Contract Act (Cap 23, Laws of Kenya) governs the sale agreement's basic requirements. The
act requires that a contract must contain an offer, acceptance, consideration, and the intention to create a legal
relationship. The contract must also be in writing and signed by the parties involved or their authorized
representatives.
Additionally, the Land Act, 2012, and the Land Registration Act, 2012, prescribe the requirements for drafting
and engrossing a sale agreement in conveyancing transactions. Section 87 of the Land Registration Act, 2012,
requires that any transfer or disposition of an interest in land must be in writing and signed by the parties
involved. Section 90 further mandates that the sale agreement must be engrossed, stamped, and registered to be
legally binding and enforceable
4.3 TERMS OF THE AGREEMENT FOR SALE

4.3.1 GENERAL CONDITIONS OF SALE
4.3.2 SPECIAL CONDITIONS OF SALE
In Kenya, the terms of the agreement for sale are a crucial aspect of any conveyancing transaction contract. These
terms outline the conditions that govern the sale of a property, and they protect the interests of both the buyer
and the seller. The terms of the agreement for sale are usually divided into two sections: the general conditions
of sale and the special conditions of sale. Let's take a closer look at each of these sections.
4.3.1 General Conditions of Sale
The general conditions of sale are standard terms that are included in most conveyancing transaction contracts.
They provide a framework for the agreement and cover various aspects of the sale process. These terms include:
i. Parties involved in the sale: This term identifies the parties involved in the sale, which are usually the buyer
and the seller. The parties' full legal names and addresses are typically included in this section.
ii. Description of the property: The general conditions of sale also provide a detailed description of the property
being sold. This description may include the property's location, size, and boundaries.
iii. Purchase price: The purchase price is the amount of money that the buyer agrees to pay the seller for the
property. This section of the agreement outlines the purchase price, as well as any other costs that may be
associated with the sale, such as stamp duty and legal fees.
iv. Payment terms: The general conditions of sale also specify the payment terms for the sale. This may include
the date by which the buyer must pay the purchase price, as well as any deposit that must be made.
v. Transfer of ownership: This section outlines the process for transferring ownership of the property from the
seller to the buyer. It includes details about the transfer of title, as well as any conditions that must be met before
the transfer can take place.
vi. Completion date: The completion date is the date on which the sale is completed, and ownership of the
property is transferred to the buyer. This section of the agreement outlines the completion date and any penalties
that may apply if the completion date is missed.
vii. Representations and warranties: The general conditions of sale may include representations and warranties
made by the seller regarding the property. These may include warranties regarding the property's condition,
ownership, and title.
viii. Default and remedies: This section outlines the remedies available to the parties in the event of a default by
either party. It may include penalties, such as forfeiture of the deposit or the right to sue for damages.
4.3.2 Special Conditions of Sale
In addition to the general conditions of sale, conveyancing transaction contracts may also include special
conditions of sale. These are terms that are specific to the particular sale and may vary depending on the
circumstances. Some common examples of special conditions of sale include:
i. Conditions precedent: These are conditions that must be met before the sale can be completed. For example,
the sale may be contingent on the buyer obtaining financing or on the seller making certain repairs to the
property.
ii. Chattels: Chattels are movable personal property, such as furniture or appliances, that are included in the sale.
This section of the agreement outlines which chattels are included in the sale and any conditions that may apply.
iii. Easements and restrictions: This section outlines any easements or restrictions that apply to the property
being sold. This may include access rights or limitations on how the property can be used.
iv. Contingencies: Contingencies are conditions that must be met before the sale can be completed. For example,
the sale may be contingent on the buyer selling their current property first.
v. Escrow: Escrow is a process in which a neutral third party holds the purchase price until all conditions of the
sale have been met. This section outlines the terms of the escrow, including the
4.3.2.1 PARTICULARS OF PROPERTY

FIXTURES AND FITTINGS
When engaging in conveyancing transactions in Kenya, it is important to consider the particulars of the
property, including fixtures and fittings. Additionally, the doctrines of annexation and maximum user
consideration also play a crucial role in these transactions.
Particulars of Property:
The particulars of a property refer to the unique features and characteristics that make it distinct from other
properties. They include the location, size, shape, and boundaries of the property, as well as any improvements
or structures on it. It is important to ensure that the particulars of the property are accurate and up-to-date in
order to avoid any disputes or legal issues that may arise in the future.
Fixtures and Fittings:

Fixtures and fittings refer to the items that are attached to a property and are considered part of it. Fixtures are
items that are permanently attached to the property, such as built-in cabinets, light fixtures, and plumbing
fixtures. Fittings, on the other hand, are items that can be easily removed without causing damage to the
property, such as curtains, blinds, and appliances.
When buying or selling a property, it is important to identify which items are fixtures and which are fittings.
This is because fixtures are generally considered part of the property and are therefore included in the sale,
while fittings are not. However, there may be cases where the buyer and seller negotiate to include certain
fittings in the sale.
DOCTRINES OF ANNEXATION AND MAXIMUM USER CONSIDERATION
In Kenya, conveyancing is the process of transferring land ownership from one party to another. The process
involves several legal doctrines that govern the transfer, such as the doctrines of annexation and maximum user
consideration. In this article, we will discuss these doctrines in detail and their application in conveyancing
transactions in Kenya.
Doctrine of Annexation
The doctrine of annexation is a legal principle that refers to the concept that an item attached to land becomes
part of the land. The doctrine is relevant in conveyancing transactions in Kenya, particularly in relation to
fixtures and chattels. A fixture is a physical item that is attached to the land and becomes part of it, while a
chattel is a movable item that is not attached to the land.
The doctrine of annexation is important in determining the ownership of fixtures and chattels in a property. In
Kenya, the legal test for determining whether an item is a fixture or a chattel is whether it is attached to the land
in a permanent or temporary manner. If an item is attached to the land permanently, it becomes a fixture and
forms part of the land. On the other hand, if it is attached temporarily, it remains a chattel and can be removed
from the property.
In conveyancing transactions, it is essential to determine the status of fixtures and chattels to ensure that the
parties understand the extent of their ownership rights. For example, a seller may claim ownership of a fixture
that a buyer believes is a chattel, leading to disputes and delays in the transfer process.
Doctrine of Maximum User Consideration

The doctrine of maximum user consideration is a legal principle that requires a purchaser to make the best use of
the property they are acquiring. It is a duty of the purchaser to ensure that they use the property to its maximum
potential, taking into account its physical and legal limitations.
In Kenya, the doctrine of maximum user consideration applies to conveyancing transactions where the
purchaser intends to use the property for commercial purposes. The principle is designed to ensure that the
purchaser maximizes the property's potential, thus benefiting both the purchaser and the community as a whole.
The doctrine of maximum user consideration is important in determining the validity of a purchaser's intended
use of the property. In Kenya, the law requires that a purchaser must obtain the necessary licenses and permits
to use the property for commercial purposes. Failure to comply with these legal requirements may lead to the
revocation of the purchaser's ownership rights.
In addition, the doctrine of maximum user consideration is relevant in determining the value of the property in a
conveyancing transaction. The value of a property is determined by its potential to generate income, and a
purchaser who fails to use the property to its maximum potential may end up with a devalued asset.
Conclusion
The doctrines of annexation and maximum user consideration are essential principles in conveyancing
transactions in Kenya. The doctrine of annexation helps to determine the ownership of fixtures and chattels,
while the doctrine of maximum user consideration ensures that purchasers use the property to its maximum
potential. Understanding these principles is crucial in ensuring a smooth and lawful conveyancing process.
4.3.2.2. CONSIDERATION
Consideration is an essential element in a conveyancing transaction in Kenya. It refers to something of value
given by one party to another in exchange for a promise or performance. In a conveyancing transaction,
consideration refers to the price or consideration paid by the purchaser to the vendor for the transfer of
ownership of a property.
In this article, we will discuss the importance of consideration in conveyancing transactions in Kenya and how it
affects the transfer of ownership.
Importance of Consideration
Consideration is important in conveyancing transactions in Kenya because it is the foundation of a valid
contract. In a contract, consideration is the price paid by one party to another for the transfer of ownership.
Without consideration, a contract cannot be legally enforceable. Therefore, the transfer of ownership of a
property is dependent on the payment of consideration.
The payment of consideration in a conveyancing transaction is also important because it provides evidence of
the parties' intention to transfer ownership of the property. Consideration is usually paid in the form of money,
and the transfer of the agreed amount from the purchaser to the vendor serves as evidence of the transfer of
ownership.
Types of Consideration
In Kenya, consideration in a conveyancing transaction can be in the form of money, goods, or services. However,
money is the most common form of consideration used in conveyancing transactions. The amount of
consideration is usually negotiated between the parties, and the contract of sale outlines the agreed price.
Payment of Consideration
The payment of consideration in a conveyancing transaction is usually made in stages. The purchaser pays a
deposit, followed by installments, and the balance upon completion of the transfer process. The payment of the
balance is usually made through a bank or a lawyer who acts as an escrow agent.
In Kenya, the payment of consideration must be made in accordance with the law. The law requires that the
payment of consideration must be made through a bank or a lawyer to prevent fraud and to ensure that the
payment is made in accordance with the agreed terms.
Impact of Consideration on Transfer of Ownership

The payment of consideration is essential for the transfer of ownership to be legally enforceable. Once
consideration is paid, the vendor transfers ownership of the property to the purchaser, and the purchaser
becomes the legal owner of the property. The transfer of ownership is evidenced by a document known as a
transfer deed, which is registered with the relevant government department.
Conclusion
Consideration is an essential element in conveyancing transactions in Kenya. It is the foundation of a valid

contract and provides evidence of the parties' intention to transfer ownership of the property. The payment of
consideration in a conveyancing transaction is usually made in stages, and it must be made in accordance with
the law. Once consideration is paid, the transfer of ownership is legally enforceable, and the purchaser becomes
the legal owner of the property
4.3.2.2.1 DEPOSIT
■ NATURE OF DEPOSIT
■ WHO HOLDS THE DEPOSIT- STAKEHOLDERS, AGENTS, ESCROW
■ FORFEITURE OF DEPOSIT
■ POSSIBLE REFORMS
Deposit is an important aspect of a conveyancing transaction in Kenya. It is a sum of money paid by

the purchaser to the vendor as a sign of commitment to purchase the property. In this article, we will
discuss the nature of the deposit, who holds the deposit, forfeiture of deposit, and possible reforms
related to deposit in a conveyancing transaction.
Nature of Deposit
Deposit is a part payment of the purchase price paid by the purchaser to the vendor to secure the
property. It is usually a small percentage of the purchase price, ranging from 10% to 30%. The deposit
is usually paid at the time of signing the sale agreement. The payment of the deposit serves as evidence
of the purchaser's intention to purchase the property.
Who Holds the Deposit - Stakeholders, Agents, Escrow

In Kenya, the deposit is usually held by the stakeholder, agent, or escrow. The stakeholder is a neutral
third party appointed by both the purchaser and the vendor to hold the deposit until the completion of
the transaction. The stakeholder can be a lawyer, a real estate agent, or a bank.
The real estate agent can also hold the deposit if they are acting as the agent for both the vendor and the
purchaser. In this case, the real estate agent has a fiduciary duty to both parties and must ensure that the
deposit is held securely and is only released in accordance with the terms of the agreement.
Escrow is another option for holding the deposit. An escrow is a financial arrangement where a third
party holds and regulates payment of the funds required for two parties involved in a given transaction.
The funds are held by the escrow service until it receives the appropriate written or oral instructions or
until obligations have been fulfilled.
Forfeiture of Deposit
Forfeiture of deposit is the cancellation of the sale agreement and the loss of the deposit by the
purchaser due to a breach of the agreement. In Kenya, forfeiture of deposit is allowed under certain
circumstances, such as when the purchaser breaches the agreement by failing to complete the
transaction, or when the vendor terminates the agreement due to the purchaser's breach.
The forfeiture of deposit clause is usually included in the sale agreement and outlines the circumstances
under which the deposit will be forfeited. It is important to note that forfeiture of deposit should not be
automatic, and the party seeking forfeiture must prove that they have suffered a loss as a result of the
breach.
Possible Reforms
There have been calls for reforms related to the deposit in a conveyancing transaction in Kenya. One of
the proposed reforms is to have the deposit held in an escrow account to ensure that it is secure and not
misappropriated. This will help to reduce cases of fraud and ensure that the deposit is only released in
accordance with the terms of the agreement.
Another proposed reform is to have a clear definition of the circumstances under which forfeiture of
deposit can be allowed. This will ensure that forfeiture of deposit is not automatic and that the party
seeking forfeiture must prove that they have suffered a loss as a result of the breach.
Conclusion
Deposit is an important aspect of a conveyancing transaction in Kenya. It is a sign of commitment by

the purchaser to purchase the property and is usually held by a stakeholder, agent, or escrow. Forfeiture
of deposit is allowed under certain circumstances, and the clause outlining the circumstances should be
clearly defined in the sale agreement. Possible reforms such as having the deposit held in an escrow
account and defining the circumstances under which forfeiture of deposit can be allowed can help to
improve the conveyancing process in Kenya
4.3.2.2.2 PAYMENT OF BALANCE OF PURCHASE PRICE
Payment of the balance of the purchase price is a critical component of any conveyancing transaction in Kenya.
Once the purchaser has paid the deposit, they are required to pay the balance of the purchase price in order to
complete the transaction and take ownership of the property. In this section, we will explore the nature of the
payment of the balance of the purchase price, the stakeholders involved, and possible reforms to improve the
process.
Nature of Payment of the Balance of the Purchase Price:
The payment of the balance of the purchase price is typically made by the purchaser to the vendor or their agent.
The payment is made either in cash or through a bank transfer, and the transfer of funds is usually done through
a stakeholder or agent. The stakeholder or agent will hold the funds until the transaction is completed, at which
point the funds will be released to the vendor.
In some cases, the vendor may agree to accept payment of the balance of the purchase price in installments. This
is known as vendor financing, and it can be beneficial for both parties. The vendor receives regular payments
and earns interest on the outstanding balance, while the purchaser has more flexibility in making payments and
may be able to secure a lower interest rate than they would through a traditional mortgage.
Stakeholders Involved in Payment of the Balance of the Purchase Price:
The stakeholders involved in the payment of the balance of the purchase price include the purchaser, the
vendor, the stakeholder or agent, and sometimes the lender if the purchaser is obtaining a mortgage. The
stakeholder or agent plays a critical role in facilitating the payment, as they are responsible for holding the funds
until the transaction is completed and ensuring that the funds are released to the correct party.
Possible Reforms to Improve the Payment of the Balance of the Purchase Price:
There are several potential reforms that could be made to improve the payment of the balance of the purchase
price in conveyancing transactions in Kenya. One such reform is the use of electronic payments, which would
make the payment process faster, more secure, and more efficient. This would also reduce the risk of fraud or
misappropriation of funds.
Another possible reform is the standardization of the payment process, which would help to ensure that all
parties involved in the transaction are aware of their rights and obligations. This could include clear guidelines
on how and when the payment should be made, as well as what happens if the payment is not made on time.
Finally, there have been calls for greater transparency in the payment process. This could include requiring the
stakeholder or agent to provide regular updates to both parties on the status of the payment, and to provide a
clear breakdown of any fees or charges associated with holding the funds. This would help to ensure that both
parties are aware of the costs associated with the transaction and would also help to reduce the risk of fraud or
misappropriation of funds.
In conclusion, the payment of the balance of the purchase price is a critical component of any conveyancing
transaction in Kenya. The stakeholders involved include the purchaser, the vendor, the stakeholder or agent,
and sometimes the lender. Possible reforms to improve the payment process include the use of electronic
payments, the standardization of the payment process, and greater transparency in the payment process. These
reforms would help to improve the conveyancing process in Kenya and would provide greater protection for
both the purchaser and the vendor
PROFESSIONAL UNDERTAKINGS,
■ NATURE OF PROFESSIONAL UNDERTAKINGS
■ GENERAL PRINCIPLES OF PROFESSIONAL UNDERTAKING
■ CONSEQUENCES OF BREACH OF PROFESSIONAL UNDERTAKINGS
■ OBLIGATIONS IMPOSED BY PROFESSIONAL UNDERTAKINGS
■ HOW TO DRAFT A PROFESSIONAL UNDERTAKING
Professional undertakings are important in conveyancing transactions in Kenya, as they ensure
that the parties involved in the transaction act in accordance with their professional standards
and ethical obligations. In this article, we will discuss the nature of professional undertakings,
general principles of professional undertakings, consequences of breach of professional
undertakings, obligations imposed by professional undertakings, and how to draft a
professional undertaking.
Nature of Professional Undertakings
Professional undertakings are legally binding promises made by professionals to their clients
or other professionals involved in a transaction. In the context of conveyancing transactions,
professional undertakings are usually given by advocates or lawyers representing the parties to
the transaction.
General Principles of Professional Undertaking

The general principles of professional undertakings in Kenya require professionals to act in the
best interests of their clients, to maintain confidentiality, and to act with integrity and honesty.
Professional undertakings are also subject to the rules and regulations of the respective
professional bodies, such as the Law Society of Kenya.
Consequences of Breach of Professional Undertakings
Breaching a professional undertaking can have serious consequences for the professional
involved. The consequences may include disciplinary action by the relevant professional body,
claims for damages by clients, and loss of reputation.
Obligations Imposed by Professional Undertakings
Professional undertakings in conveyancing transactions impose obligations on the parties

involved in the transaction. These obligations may include ensuring that the transaction is
carried out in accordance with the law and regulations, providing accurate and complete
information, and taking reasonable care to ensure that the transaction is completed in a timely
and efficient manner.
How to Draft a Professional Undertaking
To draft a professional undertaking, the following steps may be taken:
Identify the parties involved in the transaction and the nature of the transaction.
Identify the obligations that the professional is required to undertake.
Specify the terms of the undertaking, including the timeframe within which the obligations
must be fulfilled.
Ensure that the undertaking is in compliance with the relevant laws, regulations, and
professional standards.
Ensure that the undertaking is clear and unambiguous.
Include provisions for remedies in the event of breach of the undertaking.
Ensure that the undertaking is signed by the professional and the relevant parties to the
transaction.
In conclusion, professional undertakings are an important aspect of conveyancing transactions

in Kenya. They help to ensure that the parties involved in the transaction act in accordance
with their professional obligations and ethical standards. Professionals involved in
conveyancing transactions should ensure that they are familiar with the nature of professional
undertakings, the general principles of professional undertakings, and the consequences of
breach of professional undertakings. They should also take care to draft professional
undertakings that are clear, unambiguous, and in compliance with relevant laws and
regulations.
4.3.2.2.3 COMPLETION
■ COMPLETION NOTICES
■ TIME OF THE ESSENCE CLAUSES.
■ LSK COMPLETION-POSTAL OR PHYSICAL
Completion is a critical stage in the conveyancing process in Kenya, as it marks the point at which the
ownership of the property is transferred from the vendor to the purchaser. The Law Society of Kenya (LSK)
has provided guidelines to ensure that completion is carried out effectively and efficiently. In this article, we
will discuss completion notices, time of the essence clauses, and LSK completion- postal or physical.
4.3.2.2.3 Completion
Completion is the final stage of the conveyancing process in Kenya. It involves the transfer of ownership of
the property from the vendor to the purchaser. The completion date is usually agreed upon by both parties,
and it is important to ensure that all parties are ready to complete on that date.
Completion Notices
Completion notices are a critical part of the completion process in Kenya. The Law Society of Kenya has
provided guidelines for the preparation and delivery of completion notices. According to Clause 3 of the LSK
Conditions 2015 edition, the vendor's advocate is required to prepare and deliver the completion notice to the
purchaser's advocate.
The completion notice should contain details of the completion date, the amount of the purchase price, and
any other relevant information. The notice should be delivered within a reasonable period before the
completion date to allow the purchaser to prepare for completion. Failure to deliver the completion notice
within the required period may result in delays or forfeiture of the deposit paid.
Time of the Essence Clauses
Time of the essence clauses are included in most contracts for the sale of property in Kenya. These clauses
make the completion date a critical date, and failure to complete on the agreed-upon date may result in
serious consequences. According to the Law of Contract Act, Cap. 23 Laws of Kenya, time of the essence
clauses are valid and enforceable.
In the event that completion does not take place on the agreed-upon date, the party in breach may be liable for
damages, including any losses suffered by the other party. It is, therefore, important for parties to ensure that
they are ready to complete on the agreed-upon date.
LSK Completion- Postal or Physical
The LSK Conditions 2015 edition provide guidelines for completion of transactions, and parties may agree to
complete either by post or in person. According to Clause 10 of the LSK Conditions 2015 edition, the
completion of the transaction may be carried out by post or in person, as agreed upon by both parties.
If completion is to be carried out by post, the vendor's advocate must send the transfer documents to the
purchaser's advocate, who will complete the transaction on behalf of the purchaser. The purchaser's advocate
will send the purchase price to the vendor's advocate, who will then transfer the property to the purchaser.
Alternatively, completion may be carried out in person, where both parties meet at a specified location to
complete the transaction. The vendor will deliver the transfer documents to the purchaser, and the purchaser
will hand over the purchase price to the vendor. The vendor will then transfer the property to the purchaser.
In conclusion, completion is a critical stage in the conveyancing process in Kenya. Completion notices, time
of the essence clauses, and LSK completion- postal or physical are important aspects of completion that
should be carefully considered by parties involved in conveyancing transactions. It is essential to ensure that
all parties are ready to complete on the agreed-upon date and that the necessary documents and funds are
available. Failure to comply with the completion requirements may result in significant delays and additional
costs
4.3.2.2.4 REMEDIES AVAILABLE TO THE PARTIES IN THE EVENT OF BREACH

■ REMEDIES AVAILABLE TO THE VENDOR IN THE EVENT OF
BREACH
■ REMEDIES AVAILABLE TO THE PURCHASER IN THE EVENT OF
BREACH
In Kenya, a contract for the sale and purchase of land is governed by various laws and regulations,
including the Land Act, the Land Registration Act, and the Law of Contract Act. In the event of a
breach of such a contract, there are various remedies available to the parties involved. This note will
discuss the remedies available to the vendor and purchaser in the event of a breach of a contract for the
sale and purchase of land in Kenya.
I. REMEDIES AVAILABLE TO THE VENDOR IN THE EVENT OF BREACH
A vendor may have several remedies available in the event of a breach of contract by the purchaser.
Some of the remedies available to the vendor are:
Specific Performance: Specific performance is a remedy that requires the purchaser to fulfill their
obligations under the contract. In other words, the vendor can compel the purchaser to complete the
sale and purchase of the land as agreed. This remedy is available when the subject matter of the
contract is unique and cannot be replaced, and monetary damages are not an adequate remedy.
The Law of Contract Act (Cap 23) provides that specific performance is a discretionary remedy that
may be granted by a court where damages would not be an adequate remedy.
Rescission: Rescission is a remedy that allows the vendor to cancel the contract and recover any
consideration paid. This remedy is available when there is a fundamental breach of contract by the
purchaser, and the vendor wishes to terminate the agreement.
Section 39 of the Law of Contract Act provides that where a contract has been broken, the injured party
may rescind the contract and claim restitution.
Damages: Damages are a monetary remedy available to the vendor in the event of a breach of contract.
Damages aim to compensate the vendor for any loss suffered as a result of the breach. The measure of
damages will depend on the loss suffered by the vendor.
Section 46 of the Law of Contract Act provides that where a contract has been broken, the injured party
may claim damages for any loss suffered.
II. REMEDIES AVAILABLE TO THE PURCHASER IN THE EVENT OF BREACH
Similarly, a purchaser may have several remedies available in the event of a breach of contract by the
vendor. Some of the remedies available to the purchaser are:
Specific Performance: Specific performance is also available to the purchaser as a remedy in the event
of a breach by the vendor. The purchaser may compel the vendor to fulfill their obligations under the
contract and transfer the land as agreed.
Rescission: Rescission is also available to the purchaser as a remedy. If the vendor breaches the
contract, the purchaser may choose to cancel the contract and recover any consideration paid.
Damages: Damages are also available to the purchaser as a remedy in the event of a breach of contract
by the vendor. The purchaser may claim damages for any loss suffered as a result of the breach.
III. CONCLUSION
In conclusion, in the event of a breach of a contract for the sale and purchase of land in Kenya, both the
vendor and purchaser have various remedies available to them. The remedies available to the parties
will depend on the circumstances of the breach and the specific terms of the contract. It is essential to
seek legal advice on the appropriate remedy to pursue in any given situation.
4.3.3 LAW SOCIETY CONDITIONS 1989 EDITION

4.3.4 LAW SOCIETY CONDITIONS 2015 EDITION
The Law Society Conditions are guidelines that provide standard terms for the conveyancing process in Kenya.
They were first published in 1931 and have undergone several revisions over the years, with the most recent
editions being the 1989 edition and the 2015 edition. These editions have specific provisions and statutes that
govern the conveyancing process. In this article, we will discuss the Law Society Conditions 1989 edition and the
2015 edition.
4.3.3 Law Society Conditions 1989 Edition
The Law Society Conditions 1989 edition provided standard terms for conveyancing transactions in Kenya. The
conditions were adopted by the Law Society of Kenya and were intended to be used as a guide for conveyancing
transactions. The main provisions of the Law Society Conditions 1989 edition include the following:
Payment of Purchase Price: Clause 1 of the Law Society Conditions 1989 edition requires the purchaser to pay
the purchase price within a specified period. Failure to pay the purchase price within the specified period may
result in forfeiture of the deposit paid.
Conduct of Searches: Clause 3 of the Law Society Conditions 1989 edition requires the vendor's advocate to
conduct searches to ensure that the property is free from encumbrances and restrictions that may affect the
transaction.
Transfer of Title: Clause 6 of the Law Society Conditions 1989 edition requires the vendor to transfer the
property to the purchaser after payment of the purchase price. The vendor is also required to deliver all
necessary documents to effect the transfer.
Completion Date: Clause 10 of the Law Society Conditions 1989 edition requires the completion date to be
agreed upon by both parties. The completion date is the date on which the purchase price is paid, and the
transfer of ownership is effected.
Indemnity: Clause 15 of the Law Society Conditions 1989 edition requires both parties to indemnify each other
against any losses that may arise from the transaction.
4.3.4 Law Society Conditions 2015 Edition
The Law Society Conditions 2015 edition replaced the Law Society Conditions 1989 edition. The new edition was
revised to include new provisions and to align with the changes in the law. The main provisions of the Law
Society Conditions 2015 edition include the following:
Completion Date: Clause 1 of the Law Society Conditions 2015 edition requires the parties to agree on a
completion date. The completion date is the date on which the purchase price is paid, and the transfer of
ownership is effected.
Payment of Purchase Price: Clause 2 of the Law Society Conditions 2015 edition requires the purchaser to pay
the purchase price within the agreed-upon completion date. Failure to pay the purchase price within the
specified period may result in forfeiture of the deposit paid.
Conduct of Searches: Clause 6 of the Law Society Conditions 2015 edition requires the vendor's advocate to
conduct searches to ensure that the property is free from encumbrances and restrictions that may affect the
transaction.
Transfer of Title: Clause 9 of the Law Society Conditions 2015 edition requires the vendor to transfer the
property to the purchaser after payment of the purchase price. The vendor is also required to deliver all
necessary documents to effect the transfer.
Indemnity: Clause 16 of the Law Society Conditions 2015 edition requires both parties to indemnify each other
against any losses that may arise from the transaction.
In conclusion, the Law Society Conditions are guidelines that provide standard terms for the conveyancing
process in Kenya. The Law Society Conditions 1989 edition and the Law Society Conditions 2015 edition have
specific provisions and statutes that govern the conveyancing process. It is important for parties involved in
conveyancing transactions to familiarize themselves with these conditions to ensure that
4.4 ROLE OF THE ADVOCATES-

4.4.1 ROLE OF THE VENDOR'S ADVOCATE
4.4.2 ROLE OF THE PURCHASER'S ADVOCATE
4.4.3 ROLE OF THE FINANCIER'S ADVOCATE
Conveyancing is the process of transferring legal ownership of property or real estate from one person or entity
to another. It involves a series of legal and administrative procedures that must be followed to ensure that the
transaction is legally binding and the rights of all parties involved are protected. One crucial aspect of
conveyancing is the role of advocates, who represent the interests of the parties involved in the transaction. This
article will discuss the role of advocates in conveyancing transactions in Kenya.
4.4.1 Role of the Vendor's Advocate
The vendor's advocate is a lawyer who represents the seller or the vendor in the conveyancing transaction. The
role of the vendor's advocate is to protect the interests of the vendor and ensure that the transaction is completed
smoothly. The following are the steps involved in the role of the vendor's advocate:
Preparation of the sale agreement: The vendor's advocate prepares the sale agreement, which outlines the terms
and conditions of the sale. The sale agreement includes details such as the purchase price, payment terms, and
any conditions that must be met before the sale is finalized.
Property search: The vendor's advocate carries out a search to confirm that the property being sold belongs to
the vendor and that there are no encumbrances or restrictions on the property that may affect the sale.
Obtaining clearance certificates: The vendor's advocate obtains clearance certificates from the relevant
authorities, such as the land registry and the county government, to confirm that there are no outstanding taxes
or rates owed on the property.
Transfer of ownership: The vendor's advocate oversees the transfer of ownership from the vendor to the
purchaser. This involves the preparation and signing of transfer documents, payment of stamp duty, and
registration of the transfer with the relevant authorities.
Release of funds: Once the transfer is completed, the vendor's advocate ensures that the purchase price is paid to
the vendor, and any outstanding fees, such as legal fees and taxes, are settled.
Overall, the role of the vendor's advocate is to protect the interests of the vendor and ensure that the transaction
is completed in a timely and efficient manner.
4.4.2 Role of the Purchaser's Advocate
The purchaser's advocate is a lawyer who represents the buyer or the purchaser in the conveyancing transaction.
The role of the purchaser's advocate is to protect the interests of the purchaser and ensure that the transaction is
completed smoothly. The following are the steps involved in the role of the purchaser's advocate:
Review of the sale agreement: The purchaser's advocate reviews the sale agreement to ensure that the terms and
conditions are fair and reasonable. If necessary, the advocate negotiates changes to the agreement to protect the
interests of the purchaser.
Property search: The purchaser's advocate carries out a search to confirm that the property being purchased is
free from any encumbrances or restrictions that may affect the purchase.
Due diligence: The purchaser's advocate carries out due diligence on the vendor to ensure that the vendor has
the legal right to sell the property and that there are no legal disputes or claims against the property.
Transfer of ownership: The purchaser's advocate oversees the transfer of ownership from the vendor to the
Release of funds: The purchaser's advocate ensures that the purchase price is paid to the vendor only after all the
necessary legal procedures have been completed and the property is free from any encumbrances or restrictions.
Overall, the role of the purchaser's advocate is to protect the interests of the purchaser and ensure that the
transaction is completed in a timely and efficient manner.
4.4.3 Role of the Financier's Advocate
The financier's advocate is a lawyer who represents the financier or the lending institution in the conveyancing
transaction. The role of the financier's advocate is to protect the interests of the lending institution and ensure
that the transaction is completed smoothly. The following are the steps involved in the role of the financier's
advocate:
Review of the loan agreement: The financier's advocate reviews the loan agreement to ensure that the terms and
conditions are fair and reasonable. If necessary, the advocate negotiates changes to the agreement to protect the
interests of the lending institution.
Property search: The financier's advocate carries out a search to confirm that the property being purchased is a
suitable security for the loan and that there are no encumbrances or restrictions on the property that may affect
the loan.
Due diligence: The financier's advocate carries out due diligence on the vendor and the purchaser to ensure that
the transaction is legitimate and that the lending institution's interests are protected.
Transfer of ownership: The financier's advocate oversees the transfer of ownership from the vendor to the
Release of funds: The financier's advocate ensures that the loan funds are released only after all the necessary
legal procedures have been completed, and the lending institution's interests are protected.
Overall, the role of the financier's advocate is to protect the interests of the lending institution and ensure that
the transaction is completed in a timely and efficient manner.
In conclusion, the role of advocates is critical in the conveyancing process in Kenya. The vendor's advocate
protects the interests of the vendor, the purchaser's advocate protects the interests of the purchaser, and the
financier's advocate protects the interests of the lending institution. Each advocate plays a critical role in
ensuring that the transaction is legally binding and that the rights of all parties involved are protected.
Therefore, it is crucial to engage the services of competent and experienced advocates to ensure a smooth and
successful conveyancing transaction
TOPIC 3:
COMPARING THE
CONVENTIONAL
AGREEMENT FOR
SALE AND ONE
THAT CATERS FOR
OTHER SCENARIOS
5.1 SALE AND PURCHASE THROUGH AUCTION
In Kenya, the sale and purchase of property through auction is a common practice in conveyancing transactions.
Auction sales are used in situations where the owner of the property defaults on a loan or fails to pay taxes, and
the property is then sold through a public auction to recover the debt. In this article, we will explore the legal
provisions and statutes governing the sale and purchase of property through auction in Kenya.
The Auctioneers Act, Cap 539 of the Laws of Kenya, is the main statute governing the sale of property through
auction in Kenya. The Act provides for the regulation of auctioneers, their licensing, and the conduct of auctions.
The Act defines an auction as a public sale of goods or property to the highest bidder. The Act further states that
an auction sale is binding on both the seller and the buyer.
The sale and purchase of property through auction are governed by specific legal provisions and statutes,
including the Land Act, the Land Registration Act, and the Insolvency Act. These provisions provide for the
process of sale through auction and the rights and obligations of the parties involved.
Under the Land Act, an owner of land can sell their property through auction to recover a debt owed to them.
The Act provides for the registration of charges on land, which can be used to secure a debt. In the event of
default, the creditor can sell the property through auction to recover the debt owed. The sale must be conducted
by a licensed auctioneer, and the auction must be advertised in the local newspapers.
The Land Registration Act provides for the transfer of ownership of land through auction. The Act requires that
the auctioneer must provide a written notice to the Registrar of Titles informing them of the sale. The notice
must include details of the sale, including the date, time, and place of the auction, and the name of the creditor
or owner of the property. The Registrar must then enter the transfer of ownership in the land register.
The Insolvency Act provides for the sale of property through auction in cases of insolvency. Under the Act, a
debtor who is unable to pay their debts can be declared insolvent by a court of law. In such cases, the debtor's
assets, including property, can be sold through auction to pay off their debts. The sale must be conducted by a
licensed auctioneer, and the proceeds of the sale must be distributed among the creditors in accordance with the
law.
In conclusion, the sale and purchase of property through auction in Kenya is governed by specific legal
provisions and statutes, including the Auctioneers Act, the Land Act, the Land Registration Act, and the
Insolvency Act. These provisions provide for the process of sale through auction and the rights and obligations
of the parties involved. It is essential to ensure that the sale is conducted in compliance with the relevant legal
provisions and statutes to avoid any legal disputes
5.2 SALE OF PROPERTY OFF-PLAN (DEVELOPMENTAL CONVEYANCING)

Off-plan property sales, also known as developmental conveyancing, refer to the sale of property by developers
before its construction. This process allows developers to raise funds for their projects and buyers to purchase
property at a lower price than they would have had they waited for the property to be completed. In Kenya,
there are specific legal provisions that govern the sale of property off-plan, and these are contained in various
statutes and sections.
The sale of property off-plan is governed by the Law of Contract Act, Cap 23, which sets out the legal
requirements that must be met for a valid contract to exist. According to Section 2 of the Act, a contract is an
agreement that is enforceable by law. For an off-plan sale contract to be enforceable, it must meet the following
requirements:
Offer and acceptance: The developer must make an offer to sell the property off-plan, and the buyer must accept
the offer. The offer and acceptance must be clear and unambiguous.
Consideration: The buyer must pay a deposit or provide some other form of consideration to the developer in
exchange for the property.
Intention to create legal relations: Both parties must intend for the contract to be legally binding.
Capacity: Both parties must have the legal capacity to enter into the contract.
Consent: Both parties must freely and voluntarily consent to the terms of the contract.
Legality: The contract must not be contrary to law or public policy.
The sale of property off-plan is also governed by the Sectional Properties Act, Cap 584, which regulates the sale
and management of sectional properties in Kenya. Section 3 of the Act defines a sectional property as a building
or group of buildings divided into units, each of which is separately owned. The Act requires developers to
obtain approvals from relevant authorities
5.3 SALE OF A SUB-LEASE

In Kenya, a sub-lease is a lease of property that is granted by a lessee who is not the original owner of the
property. The sub-lease agreement is entered into between the lessee and a third party, who becomes the sub-
lessee. In some cases, the lessee may wish to sell the sub-lease to another party. In this article, we will explore the
legal provisions and statutes governing the sale of a sub-lease in Kenya.
The Law of Contract Act, Cap 23 of the Laws of Kenya, is the main statute governing contracts in Kenya. The Act
provides for the formation of contracts, the rights and obligations of the parties, and the remedies available in
case of breach of contract. The sale of a sub-lease is a contract, and it is subject to the provisions of the Law of
Contract Act.
The Land Act, Cap 300 of the Laws of Kenya, is the main statute governing land in Kenya. The Act provides for
the ownership and use of land, the transfer of land, and the creation and registration of interests in land. The sale
of a sub-lease is subject to the provisions of the Land Act.
Under the Land Act, a sub-lease must be in writing and must be registered with the Ministry of Lands. The Act
provides that a sub-lease is transferable, subject to any restrictions contained in the sub-lease agreement. The Act
further provides that the transfer of a sub-lease must be in writing, and the transfer must be registered with the
Ministry of Lands.
The Registration of Titles Act, Cap 281 of the Laws of Kenya, is the main statute governing the registration of
interests in land in Kenya. The Act provides for the registration of titles to land, the creation and registration of
interests in land, and the transfer of titles to land. The sale of a sub-lease is subject to the provisions of the
Registration of Titles Act.
Under the Registration of Titles Act, the transfer of a sub-lease must be in writing, and the transfer must be
registered with the land registry. The Act provides that a transfer of a sub-lease is subject to any restrictions
contained in the sub-lease agreement, and the transfer must be made in accordance with the terms and
conditions of the sub-lease agreement.
The sale of a sub-lease is also subject to the provisions of the Landlord and Tenant Act, Cap 301 of the Laws of
Kenya. The Act provides for the rights and obligations of landlords and tenants, and it is relevant to the sale of a
sub-lease because the sub-lessee becomes a tenant of the original lessee.
Under the Landlord and Tenant Act, a tenant has a right to assign their tenancy to another party, subject to any
restrictions contained in the tenancy agreement. The Act provides that the assignment must be in writing, and
the landlord must be notified of the assignment.
In conclusion, the sale of a sub-lease in Kenya is governed by specific legal provisions and statutes, including the
Law of Contract Act, the Land Act, the Registration of Titles Act, and the Landlord and Tenant Act. These
provisions provide for the formation and transfer of sub-leases, the registration of sub-leases, and the rights and
obligations of the parties involved. It is essential to ensure that the sale of a sub-lease is conducted in compliance
with the relevant legal provisions and statutes to avoid any legal disputes
5.4 SALE OF PROPERTY THROUGH SURVEY & SUBDIVISION SALES: SEC 22, 42 LRA
In Kenya, the sale of property through survey and subdivision sales is a common practice, especially in urban
areas where there is a high demand for land. This process involves the subdivision of a larger parcel of land into
smaller portions, which can be sold individually. In this article, we will explore the legal provisions and statutes
governing the sale of property through survey and subdivision sales in Kenya.
The Land Registration Act, Cap 300 of the Laws of Kenya, is the main statute governing land registration in
Kenya. Section 22 of the Act provides for the subdivision of land. The section states that any owner of land who
wishes to subdivide their land must apply to the relevant authorities for approval. The approval process
involves obtaining a subdivision order from the Director of Survey, who will then notify the Registrar of Titles of
the subdivision.
Once the subdivision order is obtained, the owner of the land must then register the new subdivisions with the
Registrar of Titles. The registration process involves the preparation of new title documents for each subdivision,
which must be approved by the Registrar of Titles.
Section 42 of the Land Registration Act provides for the sale of land through survey and subdivision sales. The
section states that any person who wishes to sell a parcel of land that has been subdivided must apply to the
Registrar of Titles for approval. The approval process involves the preparation of a transfer document, which
must be signed by the seller and the buyer. The transfer document must also be approved by the Registrar of
Titles.
In addition to the Land Registration Act, the Survey Act, Cap 299 of the Laws of Kenya, is also relevant to the
sale of property through survey and subdivision sales. The Act provides for the survey of land and the
registration of survey plans. The Act requires that any land that is to be subdivided must be surveyed by a
licensed surveyor.
Once the survey is complete, the surveyor must prepare a survey plan, which shows the boundaries and
dimensions of each subdivision. The survey plan must be registered with the Director of Survey, who will then
issue a survey plan number.
The sale of property through survey and subdivision sales is also subject to the provisions of the Sale of Goods
Act, Cap 31 of the Laws of Kenya. The Act provides for the sale of goods, including land, and it is relevant to the
sale of property through survey and subdivision sales because the sale of land is a sale of a good.
Under the Sale of Goods Act, a contract for the sale of land must be in writing and signed by both parties. The
contract must also contain all the essential terms of the sale, including the purchase price, the description of the
land, and the payment terms.
In conclusion, the sale of property through survey and subdivision sales in Kenya is subject to specific legal
provisions and statutes, including Section 22 and 42 of the Land Registration Act, the Survey Act, and the Sale of
Goods Act. These provisions provide for the subdivision of land, the registration of survey plans, the sale of land
through survey and subdivision sales, and the essential terms of the sale. It is essential to comply with these
provisions when selling property through survey and subdivision sales to avoid any legal disputes.
5.5 SALE AND PURCHASE OF A LEASED BUILDING

In Kenya, the sale and purchase of a leased building is a common practice, particularly in urban areas where the
demand for property is high. A leased building is a building that is owned by a landlord and rented out to a
tenant under a lease agreement. In this article, we will explore the legal provisions and statutes governing the
sale and purchase of a leased building in Kenya.
The main statute governing the leasing of buildings in Kenya is the Landlord and Tenant (Shops, Hotels and
Catering Establishments) Act, Cap 301 of the Laws of Kenya. The Act provides for the regulation of the
relationship between landlords and tenants, including the leasing of buildings.
Section 10 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that a tenant
has the right to assign their lease or sublet the premises with the consent of the landlord. The section also
provides that the landlord cannot unreasonably withhold their consent to the assignment or subletting of the
premises.
The consent of the landlord to the assignment or subletting of the premises is usually documented in a deed of
assignment or a deed of sublease. The deed of assignment or sublease must contain all the essential terms of the
transaction, including the consideration, the duration of the lease, and the obligations of the parties.
In addition to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the Transfer of
Property Act, Cap 268 of the Laws of Kenya, is also relevant to the sale and purchase of a leased building. The
Act provides for the transfer of property, including leased property.
Section 54 of the Transfer of Property Act provides that a lease of property can be transferred by the execution of
an instrument of transfer. The instrument of transfer must be in writing and signed by both the transferor and
the transferee.
The transfer of a lease of a building is also subject to the provisions of the Land Registration Act, Cap 300 of the
Laws of Kenya. The Act provides for the registration of land and interests in land.
Section 28 of the Land Registration Act provides that a lease of land exceeding three years must be registered
with the Registrar of Titles. The registration process involves the preparation of a transfer document, which must
be signed by both the transferor and the transferee. The transfer document must also be approved by the
Registrar of Titles.
The sale and purchase of a leased building is also subject to the provisions of the Sale of Goods Act, Cap 31 of the
Laws of Kenya. The Act provides for the sale of goods, including leased property.
Under the Sale of Goods Act, a contract for the sale of a leased building must be in writing and signed by both
parties. The contract must also contain all the essential terms of the sale, including the purchase price, the
duration of the lease, and the obligations of the parties.
In conclusion, the sale and purchase of a leased building in Kenya is subject to specific legal provisions and
statutes, including the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the Transfer of
Property Act, the Land Registration Act, and the Sale of Goods Act. It is essential to comply with these
provisions when selling or purchasing a leased building to avoid any legal disputes
5.6 SALE AND PURCHASE OF COMMUNITY LAND

Community land refers to land that is held by communities under customary tenure or is of public interest. In
Kenya, the sale and purchase of community land is regulated by the Community Land Act, 2016. This article will
discuss the legal provisions, sections, and statutes that govern the sale and purchase of community land in
Kenya.
The Community Land Act, 2016 provides for the registration, administration, and management of community
land. Section 6 of the Act provides that community land shall be held, used, managed, and regulated in
accordance with the customs and traditions of the communities concerned, and in a manner that is sustainable
and ecologically friendly.
Section 14 of the Community Land Act provides that community land can be sold or otherwise disposed of,
subject to the consent of the community concerned. The section also provides that the sale or disposal of
community land must be done in a transparent and accountable manner, with the involvement and participation
of the community.
The sale and purchase of community land in Kenya is also subject to the provisions of the Land Act, 2012.
Section 13 of the Land Act provides that all land in Kenya is vested in the President, who holds it in trust for the
people of Kenya.
Section 18 of the Land Act provides for the registration of land in Kenya. The section provides that all land in
Kenya must be registered with the National Land Commission (NLC).
Section 22 of the Land Act provides for the sale of land in Kenya. The section provides that the sale of land must
be done in accordance with the provisions of the law, and the consent of the NLC must be obtained before any
sale or transfer of land can take place.
In addition to the Community Land Act and the Land Act, the sale and purchase of community land in Kenya is
subject to the provisions of the Constitution of Kenya, 2010. Article 63 of the Constitution provides for the rights
of communities to own property.
Article 63(2) of the Constitution provides that communities have the right to manage their own affairs and to use
and control their communal property. The article also provides that the government must take legislative and
other measures to recognize and protect the rights of communities to own property.
In conclusion, the sale and purchase of community land in Kenya is subject to specific legal provisions, sections,
and statutes, including the Community Land Act, the Land Act, and the Constitution of Kenya. It is essential to
comply with these provisions when selling or purchasing community land to avoid any legal disputes. The sale
or disposal of community land must be done in a transparent and accountable manner, with the involvement
and participation of the community
5.7 FRACTIONAL SALE AND TIME SHARES

Fractional sale and time shares refer to the sale and purchase of an interest in a property for a specific period,
often divided into weeks or months. In Kenya, fractional sale and time shares are governed by the Land Act,
2012, and the Sectional Properties Act, 2019.
The Land Act, 2012 provides for the registration and transfer of land in Kenya. Section 2 of the Act defines land
to include any interest in land, whether leasehold or freehold, and any easement, right or privilege in or over
land.
The Sectional Properties Act, 2019 provides for the registration and management of sectional properties in
Kenya. Sectional properties refer to a building or part of a building that is divided into units that can be owned
separately. The Act defines a unit as a part of a sectional property that is intended for use as a separate dwelling
or for any other independent use.
Section 5 of the Sectional Properties Act provides for the registration of a sectional property. The section requires
that an application for registration of a sectional property must be made to the Registrar of Titles, accompanied
by certain documents, including a plan of the property, a list of the owners of the units, and a declaration by the
owners of the units.
Section 6 of the Sectional Properties Act provides for the subdivision of a sectional property. The section requires
that any subdivision of a sectional property must be done in accordance with the provisions of the Act, and the
consent of the Registrar of Titles must be obtained before any subdivision can take place.
The sale and purchase of fractional interests in a sectional property is regulated by the provisions of the Sectional
Properties Act. Section 21 of the Act provides for the sale and transfer of a unit in a sectional property. The
section requires that the sale of a unit must be done in writing and must be registered with the Registrar of
Titles.
Section 23 of the Sectional Properties Act provides for the creation of a time-share in a sectional property. The
section allows for the creation of a time-share agreement, which allows for the use and occupation of a unit in a
sectional property for a specific period.
In addition to the Land Act and the Sectional Properties Act, the sale and purchase of fractional interests and
time shares in Kenya is also subject to the provisions of the Contracts Act, 2019. The Contracts Act provides for
the formation, performance, and enforcement of contracts in Kenya.
In conclusion, the sale and purchase of fractional interests and time shares in Kenya is governed by specific legal
provisions, sections, and statutes, including the Land Act, the Sectional Properties Act, and the Contracts Act. It
is essential to comply with these provisions when selling or purchasing a fractional interest or time share to
avoid any legal disputes. The sale or transfer of a unit in a sectional property must be done in writing and must
be registered with the Registrar of Titles, and the creation of a time-share agreement must be done in accordance
with the provisions of the Sectional Properties Act.
5.8 SALE AND PURCHASE OF PROPERTY THROUGH A CO-OPERATIVE OR A LAND BUYING COMPANY
The sale and purchase of property through a cooperative or a land buying company in Kenya is regulated by the
Cooperative Societies Act, the Land Control Act, and the Land Act, among other laws.
A cooperative society is an autonomous association of persons united voluntarily to meet their common
economic, social and cultural needs and aspirations through a jointly owned and democratically controlled
enterprise. The Cooperative Societies Act, 2004 provides for the registration, management, and operation of
cooperative societies in Kenya.
The Land Control Act provides for the control of the sale, subdivision, and allocation of agricultural land in
Kenya. Section 4 of the Act provides that agricultural land can only be sold to a person who is a citizen of Kenya
or a company in which at least 75% of the share capital is owned by Kenyan citizens. The section further
provides that the sale of agricultural land must be done in accordance with the provisions of the Act.
The Land Act provides for the registration and transfer of land in Kenya. Section 6 of the Act provides for the
registration of community land. The section requires that community land must be registered in the name of the
community, and any sale or transfer of community land must be done in accordance with the provisions of the
Act.
When purchasing property through a cooperative or a land buying company, it is important to ensure that the
cooperative or the company is registered with the relevant authorities. The Cooperative Societies Act provides
for the registration of cooperative societies, and Section 26 of the Land Control Act provides for the registration
of land buying companies.
Section 51 of the Cooperative Societies Act provides for the powers of a cooperative society. The section allows a
cooperative society to acquire and hold property, including land, and to sell, mortgage or charge such property.
When selling property through a cooperative or a land buying company, the cooperative or the company must
comply with the provisions of the Land Control Act and the Land Act. The sale of agricultural land must be
done in accordance with the provisions of the Land Control Act, and the sale of community land must be done
in accordance with the provisions of the Land Act.
In conclusion, the sale and purchase of property through a cooperative or a land buying company in Kenya is
governed by specific legal provisions, sections, and statutes, including the Cooperative Societies Act, the Land
Control Act, and the Land Act. It is important to comply with these provisions when selling or purchasing
TOPIC 4:
COMPLET
ION
&
REGISTRA
TION
6.1 VOLUNTARY TRANSFERS: SEC 2, 37 (1) LRA

6.1.1 TRANSFER OF LAND THROUGH SALE OR BY WAY OF GIFT
6.1.2 REQUIREMENTS FOR REGISTRATION: SEC 44(5) LRA
6.1.3 TRANSFER FORMS: SEC 43 (2) LAND ACT, SEC 37 LRA, LEGAL NOTICES 143-146
6.1.4 PARTS OF THE TRANSFER DOCUMENT
Voluntary transfers refer to the transfer of ownership of land or property by the owner to another person
voluntarily, either through a sale or as a gift. In Kenya, voluntary transfers are regulated by the Land
Registration Act (LRA) and the Land Act, among other laws.
6.1.1 Transfer of Land through Sale or by Way of Gift
The transfer of land through sale or by way of gift involves the transfer of ownership of land from the seller or
donor to the buyer or donee. Section 2 of the LRA defines a transfer as a transaction that changes the ownership
of an interest in land. A transfer of land must be done through a registered instrument in the prescribed form,
which is the transfer form.
When transferring land through sale, the seller and buyer must enter into a sale agreement that specifies the
terms and conditions of the sale, including the purchase price, the mode of payment, and the time of completion
of the transaction. The sale agreement must be in writing and signed by both parties.
When transferring land by way of gift, the donor must execute a deed of gift that specifies the land being gifted,
the identity of the donee, and the consideration, which is usually love and affection. The deed of gift must be in
writing and signed by the donor and the donee.
6.1.2 Requirements for Registration: Section 44(5) LRA
Before a transfer of land can be registered, certain requirements must be met. Section 44(5) of the LRA provides
that every transfer must be accompanied by the original title deed, a copy of the sale agreement or deed of gift,
and the land rent clearance certificate, if applicable. The transfer must also be executed by the transferor and the
transferee, and the signatures must be witnessed by two adults who are not party to the transaction.
6.1.3 Transfer Forms: Section 43(2) Land Act, Section 37 LRA, Legal Notices 143-146
The transfer form is the prescribed form used to effect a transfer of land. Section 43(2) of the Land Act and
Section 37 of the LRA provide for the use of the prescribed forms, which are Form A for transfer by sale, Form B
for transfer by way of gift, and Form C for transfer by transmission.
Legal Notices 143-146 provide for the specific requirements for completing the transfer forms, including the
information that must be included, the manner of execution, and the fees payable for registration.
6.1.4 Parts of the Transfer Document
The transfer document comprises several parts, including the transfer form, the original title deed, the sale
agreement or deed of gift, the land rent clearance certificate, and any other documents required by law. The
transfer form must be completed accurately and signed by the transferor and the transferee, and the signatures
must be witnessed by two adults who are not party to the transaction. The original title deed must be
surrendered to the Registrar of Titles for cancellation, and a new title deed must be issued in the name of the
transferee.
In conclusion, voluntary transfers of land in Kenya are governed by specific legal provisions, sections, and
statutes, including Section 2 and Section 37(1) of the LRA. The requirements for registration of transfers are set
out in Section 44(5) of the LRA, and the transfer forms are provided for in Section 43(2) of the Land Act and
Section 37 of the LRA, as well as Legal Notices 143-146. When effecting a transfer of land, it is important to
ensure that all the requirements are met to avoid any legal disputes
6.2 INTEREST TO BE TRANSFERRED AND DEEDS OF TRANSFER:

SEC 32 & 37 (2) LRA; ART 40(1), ART 65 THE CONSTITUTION, 2010
6.2.1 TRANSFER OF FREEHOLD
6.2.2 TRANSFER OF LEASEHOLD (LEASES AND SUB-LEASES): SEC 45 LA; SEC 71 & 72 LRA
AND TRANSFER OF REVERSIONARY INTEREST
6.2.3 TRANSFER OF CHARGE: SEC 86 (1) LA
6.2.4 ASSIGNMENTS, TRANSFER OF PROFIT, TRANSFER OF UNDIVIDED SHARE
In conveyancing transactions in Kenya, the transfer of property involves the transfer of interest from one person
to another. The process of transferring property is governed by specific legal provisions, statutes, and sections,
including the Land Registration Act (LRA), the Land Act, and the Constitution of Kenya.
2.0 Interest to be Transferred and Deeds of Transfer: SEC 32 & 37 (2) LRA; ART 40(1), ART 65 THE
CONSTITUTION, 2010
2.1 Transfer of Freehold
Freehold land is owned absolutely by the owner and can be transferred through a deed of transfer. A deed of
transfer is a legal document that records the transfer of ownership of property from one party to another. Section
32 of the LRA requires that the deed of transfer must be in writing, signed by both the transferor and the
transferee, and must be attested by at least two witnesses. The transferor is required to deliver the original deed
of transfer to the Registrar of Titles for registration within 60 days of execution.
Article 40(1) of the Constitution of Kenya protects the right to own property, including freehold property. This
means that the transfer of freehold land must be done in accordance with the law, and the rights of the parties
involved must be protected.
2.2 Transfer of Leasehold (Leases and Sub-Leases): SEC 45 LA; SEC 71 & 72 LRA and Transfer of Reversionary
Interest
Leasehold land is leased to the occupant for a specific period, usually 99 years, and can be transferred through a
deed of transfer. Section 45 of the Land Act requires that the transfer of leasehold land must be in writing and
signed by both the transferor and the transferee. The transfer must be attested by at least two witnesses and
must be delivered to the Registrar of Titles for registration within 60 days of execution.
Section 71 of the LRA provides for the transfer of a sub-lease, while section 72 provides for the transfer of a
reversionary interest. The reversionary interest is the interest that remains with the lessor after the expiration of
the lease.
2.3 Transfer of Charge: SEC 86 (1) LA
A charge is a security interest created over property to secure a debt or other obligation. A charge can be
transferred through a deed of transfer. Section 86(1) of the Land Act requires that the transfer of a charge must
be in writing and signed by the transferor and the transferee. The transfer must be attested by at least two
witnesses and must be delivered to the Registrar of Titles for registration within 60 days of execution.
2.4 Assignments, Transfer of Profit, Transfer of Undivided Share
Assignments involve the transfer of contractual rights or obligations from one party to another. A transfer of
profit is a transfer of the right to receive income from property. A transfer of an undivided share involves the
transfer of a fractional interest in property. These transfers can be done through a deed of transfer, which must
be in writing, signed by the parties, and delivered to the Registrar of Titles for registration within 60 days of
execution.
6.2 Requirements for Registration: SEC 44(5) LRA
Section 44(5) of the LRA requires that a deed of transfer must be accompanied by the following documents for
registration:
The original title deed

The land rent clearance certificate
The rates clearance certificate
The stamp duty receipt
The consent of the Commissioner of Lands, where applicable
Any other document required by law or the Registrar of Titles
6.3 Transfer Forms: SEC 43 (2) LAND ACT, SEC 37
6.2.4 ASSIGNMENTS, TRANSFER OF PROFIT, TRANSFER OF UNDIVIDED SHARE
Apart from the transfer of freehold, leasehold, and charges, there are other types of interest that can be
transferred in a conveyancing transaction in Kenya. These include assignments, transfer of profit, and transfer of
an undivided share.
An assignment is a transfer of an interest in a property that is less than the whole. For example, a lessee can
assign their leasehold interest to another person, while still retaining the reversionary interest. The process of
assigning a leasehold interest is governed by Section 68 of the Land Registration Act, which requires the
assignment to be in writing and signed by the assignor.
A transfer of profit is a transfer of the right to receive rent or other profits from a property. This type of transfer
is usually made by a landlord to a mortgagee or another party as security for a loan. The process of transferring
a profit is governed by Section 69 of the Land Registration Act, which requires the transfer to be in writing and
signed by the transferor.
A transfer of an undivided share refers to the transfer of a fractional interest in a property. This can occur when
two or more people own a property as tenants-in-common and one of the co-owners wants to sell their share.
The process of transferring an undivided share is governed by Section 71 of the Land Registration Act, which
requires the transfer to be in writing and signed by the transferor.
In conclusion, a conveyancing transaction in Kenya involves the transfer of various interests in real property.
The process of transferring these interests is governed by various legal provisions, sections, and statutes, which
must be followed to ensure that the transfer is valid and enforceable. It is essential to engage the services of a
qualified and experienced conveyancing lawyer to guide you through the process and ensure that your interests
are protected.
6.3 SECTIONAL PROPERTIES & SUB-LEASES

6.3.1 ELEMENTS OF SECTIONAL OWNERSHIP
6.3.2 SECTIONAL UNITS MANAGEMENT (CORPORATION); SEC 17 SPA
6.3.3 REGISTRATION OF SECTIONAL PROPERTIES, SEC 54
LRA 6.3.4 TERMINATION OF SECTIONAL PROPERTY;
SEC 55 SPA
6.3.5 CONVERSION OF TITLE TO SECTIONAL PROPERTY TITLE.
6.3 SECTIONAL PROPERTIES & SUB-LEASES
In Kenya, a sectional property refers to a building or group of buildings that have been subdivided into
individual units or sections, each of which can be owned and sold separately. The legal framework for the
creation, management, and transfer of sectional properties is provided for under the Sectional Properties Act
(SPA), the Land Registration Act (LRA), and other relevant statutes.
6.3.1 ELEMENTS OF SECTIONAL OWNERSHIP
The elements of sectional ownership are the individual units or sections that make up the property, together
with the common property, which is the area of the property that is shared by all the owners. The individual
units may be apartments, townhouses, or office spaces, and each unit owner is responsible for maintaining their
unit and paying levies for the maintenance of the common areas.
6.3.2 SECTIONAL UNITS MANAGEMENT (CORPORATION); SEC 17 SPA
The management of sectional properties is vested in the sectional property owners' association, which is a legal
entity created under the SPA. The association is responsible for the maintenance and management of the
common areas, the collection of levies, and the enforcement of the sectional property rules and regulations.
Section 17 of the SPA provides for the establishment of a management corporation, which is responsible for the
day-to-day management of the property. The management corporation is elected by the unit owners and is
responsible for managing the finances of the property, collecting levies, maintaining the common areas, and
enforcing the sectional property rules and regulations.
6.3.3 REGISTRATION OF SECTIONAL PROPERTIES; SEC 54 LRA
The registration of sectional properties is governed by Section 54 of the LRA, which provides for the registration
of sectional property titles. The registration process involves the creation of a sectional plan, which shows the
individual units and common areas of the property, and the registration of the sectional property title with the
Registrar of Titles.
To register a sectional property title, the developer must comply with the requirements set out in the SPA and
other relevant statutes. These include the submission of a sectional plan, the approval of the plan by the relevant
authorities, and the payment of the requisite fees and levies.
6.3.4 TERMINATION OF SECTIONAL PROPERTY; SEC 55 SPA
Section 55 of the SPA provides for the termination of a sectional property. This may occur when the sectional
property is no longer viable, or when the unit owners agree to dissolve the property. The termination process
involves the sale of the property, the distribution of the proceeds among the unit owners, and the cancellation of
the sectional property title.
The termination of a sectional property can be a complex process, and it is essential to engage the services of a
qualified conveyancing lawyer to guide you through the process.
6.3.5 CONVERSION OF TITLE TO SECTIONAL PROPERTY TITLE
Sectional property titles can also be converted back to ordinary land titles. The process of conversion is governed
by the SPA and other relevant statutes and involves the submission of an application for conversion, the
payment of the requisite fees and levies, and the approval of the relevant authorities.
In conclusion, the creation, management, and transfer of sectional properties in Kenya are governed by various
legal provisions, sections, and statutes. The process of registering and managing a sectional property can be
complex, and it is essential to engage the services of a qualified conveyancing lawyer to guide you through the
process and ensure that your interests are protected
6.4 SUB-LEASES
6.4.1 DEFINITION AND DISTINCTION.

6.4.2 TRANSFER OF REVERSIONARY INTEREST.
In conveyancing transactions in Kenya, sub-leases are a common form of land transfer. A sub-lease refers to a
lease agreement between a tenant and a third party, where the tenant sub-leases the leased property to the third
party. This arrangement creates a sub-tenancy, where the sub-tenant occupies the leased property, while the
tenant continues to hold the original lease from the landlord. In Kenya, sub-leases are governed by various
statutes and legal provisions, as discussed below:
6.4.1 Definition and Distinction
Under the Kenyan law, a sub-lease is defined as a leasehold interest in property that is created by a tenant, who
sub-leases the property to a third party. A sub-lease is different from an assignment, which refers to the transfer
of the entire leasehold interest from the tenant to the assignee. In a sub-lease, the tenant retains the original
leasehold interest and the sub-tenant acquires a secondary leasehold interest in the property.
The provisions governing sub-leases in Kenya include Section 3 of the Land Act, which defines a sub-lease as a
leasehold interest granted out of an existing leasehold interest. Additionally, Section 71 of the Land Registration
Act (LRA) provides for the registration of sub-leases in the same manner as leases.
6.4.2 Transfer of Reversionary Interest
In sub-leases, the original leaseholder retains the reversionary interest, which refers to the interest in the
property that reverts back to the landlord upon the expiration of the lease. The sub-leaseholder, on the other
hand, holds only a secondary leasehold interest in the property.
The transfer of a reversionary interest in a sub-lease is governed by Section 45 of the Land Act, which provides
for the transfer of the leasehold interest as well as any rights or interests in the property that the tenant holds.
The transfer of the reversionary interest in a sub-lease is done through an assignment, which transfers the
original leasehold interest, as well as the reversionary interest, to the assignee.
In conclusion, sub-leases are a common form of land transfer in Kenya. Sub-leases are defined as leasehold
interests granted out of existing leasehold interests, and are governed by various legal provisions, including the
Land Act and the Land Registration Act. The transfer of a reversionary interest in a sub-lease is done through an
assignment, which transfers the original leasehold interest, as well as the reversionary interest, to the assignee
6.5 CONSIDERATION: TRANSFER WITH AND WITHOUT CONSIDERATION: SEC 43 (2) LA; SEC 27
LRA
In a conveyancing transaction, the transfer of property may be done with or without consideration.
Consideration is the value given in exchange for the transfer of property. It can be in the form of money,
property, or services. In Kenya, the laws governing consideration in conveyancing transactions are outlined in
the Land Act and the Land Registration Act.
Section 43(2) of the Land Act provides that all transfers of land must be in writing and in the prescribed form.
The form must contain the purchase price, any deposit paid, and the balance due. The purchase price is the
consideration given for the transfer of the land. The transfer document must also be signed by both the
transferor and the transferee in the presence of a witness.
Section 27 of the Land Registration Act provides that a transfer of land shall not be registered unless the
transferee has provided consideration for the transfer. This means that a transfer of land without consideration
cannot be registered. The consideration given for the transfer of land must be stated in the transfer document.
If the transfer is done without consideration, it is treated as a gift. The transfer document must clearly state that
the transfer is a gift and the relationship between the transferor and the transferee. In such cases, the transferee
is exempt from paying stamp duty.
In a transfer with consideration, the value of the consideration must be stated clearly in the transfer document.
Stamp duty is payable on the transfer of land, and the amount payable is based on the value of the consideration
given for the transfer. The stamp duty payable is calculated as a percentage of the value of the consideration.
In conclusion, consideration is an important element in conveyancing transactions. The transfer document must
clearly state whether the transfer is done with or without consideration, and the value of the consideration given
must be stated clearly in the transfer document. The relevant legal provisions for consideration in conveyancing
transactions are found in Section 43(2) of the Land Act and Section 27 of the Land Registration Act.
WEEK 10: INVOLUNTARY TRANSFERS (BY OPERATION OF LAW)

6.5.1 DEATH: SEC 49 & 50 LA; SEC 60 & 61 LRA
6.5.2 COURT ATTACHMENT AND SALE: ORDER 22, RULE 55 CIVIL PROCEDURE RULES, 2010;
SEC 54 LA; SEC 65 LRA
6.5.3 VESTING ORDER: SEC 45 -56 TRUSTEES ACT, CAP 167;
6.5.4 INSOLVENCY ACT, 2015; SEC 52 LA, SEC 63 LRA,
6.5.1 DEATH: SEC 49 & 50 LA; SEC 60 & 61 LRA
In the event of the death of the registered proprietor of land, the legal framework in Kenya provides for the
transfer of ownership through a legal process. The process requires the executors of the deceased’s estate or the
administrator of the estate to obtain a grant of representation from the High Court to enable them to deal with
the deceased’s assets, including land. The process of transferring ownership in the event of death is guided by
various legal provisions, including Section 49 and 50 of the Land Act and Section 60 and 61 of the Land
Registration Act.
Section 49 of the Land Act provides that in case of the death of a registered proprietor, the personal
representative or administrator of the estate shall give notice of the death to the Registrar of Titles within three
months from the date of death. The notice must be accompanied by a copy of the death certificate and a certified
copy of the grant of representation. Upon receipt of the notice and the required documents, the Registrar of
Titles shall enter a transmission on the register in favor of the personal representative or administrator, which
shall vest in the personal representative or administrator the estate or interest of the deceased in the land.
Section 50 of the Land Act provides that where the estate of a deceased person has been distributed, the personal
representative or administrator shall furnish the Registrar of Titles with a statutory declaration or a court order
showing the distribution of the estate. Upon receipt of the statutory declaration or court order, the Registrar of
Titles shall register the transmission of the land in the names of the beneficiaries in accordance with the
distribution.
Similarly, the Land Registration Act provides for the transmission of ownership of land upon the death of the
registered proprietor. Section 60 of the Act provides that the personal representative or administrator of the
estate of a deceased registered proprietor may apply to the Registrar for the registration of the transmission of
the land in their name. The application shall be accompanied by a copy of the death certificate, a certified copy of
the grant of representation, and evidence of payment of any relevant fees.
Section 61 of the Land Registration Act provides that upon receipt of the application and the required
documents, the Registrar shall register the transmission of the land in the name of the personal representative or
administrator. The transmission shall vest in the personal representative or administrator the estate or interest of
the deceased in the land, subject to any encumbrances that existed on the land before the death of the registered
proprietor.
6.5.2 COURT ATTACHMENT AND SALE: ORDER 22, RULE 55 CIVIL PROCEDURE RULES, 2010; SEC 54 LA;
SEC 65 LRA
The process of court attachment and sale of land is a legal process used to enforce a judgment or court order
against a registered proprietor of land. The process is guided by various legal provisions, including Order 22
Rule 55 of the Civil Procedure Rules, 2010, Section 54 of the Land Act, and Section 65 of the Land Registration
Act.
Order 22 Rule 55 of the Civil Procedure Rules, 2010 provides that where a judgment debtor has failed to satisfy a
judgment debt, the court may order the attachment and sale of the judgment debtor’s property. The court order
shall be served on the Registrar of Titles, who shall then make an entry in the register showing that the property
is under attachment. The entry shall act as a notice to any potential purchaser of the property that the property is
subject to an attachment.
Section 54 of the Land Act provides that where land is subject to an attachment order, the Registrar of Titles shall
not register any dealings with the land until the attachment is lifted. The attachment may be lifted upon the
payment of the judgment debt
6.5.3 Vesting Order: Sec 45-56 Trustees Act, Cap 167
A vesting order is an order by the court that transfers the ownership of property from one person to another.
This is usually done in cases where the property is held by trustees, and it is necessary to transfer the property to
another person. Section 45-56 of the Trustees Act, Cap 167 provides for the process of obtaining a vesting order.
The process of obtaining a vesting order starts with an application to the court by the trustees or any interested
party. The application must state the grounds for the transfer of the property and provide evidence to support
the application. The court may then make an order transferring the property to the new owner.
A vesting order can also be used to correct any defects in the title to the property. For example, if there is a
mistake in the name of the owner or the property description, a vesting order can be used to correct the mistake.
6.5.4 Insolvency Act, 2015; Sec 52 LA, Sec 63 LRA
The Insolvency Act, 2015 provides for the transfer of property in cases where a person is declared bankrupt or is
in financial distress. The Act allows for the appointment of a receiver or trustee to manage the property and sell
it to pay off the debts owed by the bankrupt person.
Section 52 of the Land Act, Cap 307 provides that the receiver or trustee may transfer the property to a purchaser
without obtaining the consent of the registered owner of the property. The transfer of the property is deemed to
be valid even if the registered owner did not consent to the transfer.
Section 63 of the Land Registration Act, Cap 300 provides that the transfer of property by a receiver or trustee
under the Insolvency Act, 2015 is subject to registration in the land register. The registrar is required to enter the
transfer in the register and issue a new certificate of title to the purchaser.
In conclusion, the transfer of property in cases of death, court attachment and sale, vesting orders, and
insolvency is governed by specific legal provisions and statutes in Kenya. It is important for parties involved in
such transactions to be familiar with these provisions to ensure that the transfer is valid and legally binding.
6.5.5 ADVERSE POSSESSION: SEC 7 & 17 LIMITATION OF ACTIONS ACT, CAP 22

Adverse possession refers to a legal concept whereby a person acquires ownership of land by possessing it
continuously and openly for a specified period of time, without the permission or consent of the rightful owner.
In Kenya, the law governing adverse possession is found in the Limitation of Actions Act, Cap 22. Specifically,
sections 7 and 17 of the Act provide the legal framework for the acquisition of title by adverse possession.
Section 7 of the Limitation of Actions Act sets out the time within which an action to recover land must be
brought. The section provides that no action shall be brought by any person to recover any land after the
expiration of twelve years from the date on which the right of action accrued to the person bringing the action,
or to any person through whom he or she claims.
Section 17 of the Act provides for the acquisition of title by adverse possession. The section states that where a
person has been in possession of land for a continuous period of twelve years and his or her possession was
open, undisturbed, uninterrupted, and without the permission of the true owner, he or she may apply to the
Land Registrar for registration as the owner of the land.
The Land Registrar will investigate the claim and if satisfied that the applicant has been in possession of the land
for the requisite period and that the other requirements for adverse possession have been met, the Registrar may
issue a certificate of ownership to the applicant. The certificate of ownership has the effect of vesting in the
applicant the title to the land.
It is important to note that adverse possession only applies to registered land. Unregistered land is not subject to
adverse possession. Additionally, the registered owner of the land can interrupt the possession of the adverse
possessor by bringing an action to recover the land before the expiry of the twelve-year period.
In conclusion, adverse possession is a legal concept that allows a person to acquire ownership of land by
possessing it continuously and openly for a specified period of time without the permission or consent of the
rightful owner. The law governing adverse possession in Kenya is found in the Limitation of Actions Act, Cap
22, specifically in sections 7 and 17.
6.5.6 COMPULSORY ACQUISITION: ART 40(3) THE CONSTITUTION, 2010; SEC 107
Compulsory acquisition, also known as eminent domain, refers to the process by which the government or its
agents acquire private land for public use without the owner's consent. This process is often necessary for public
infrastructure development such as roads, railways, airports, and public utilities.
In Kenya, compulsory acquisition is regulated by the Land Act, which provides guidelines on the procedures to
be followed by the government or its agents in acquiring land. The Act mandates the government to provide fair
and prompt compensation to the affected landowners or holders of any interest in the land, in line with Article
40(3) of the Constitution of Kenya, 2010.
The process of compulsory acquisition involves several steps, which include:
Public Notice: The government or its agent must first issue a public notice indicating its intention to acquire the
land. The notice must be published in the local dailies and served to the affected landowners or holders of any
interest in the land.
Offer of Compensation: After issuing the public notice, the government or its agent must then offer
compensation to the affected landowners or holders of any interest in the land. The compensation must be fair
and prompt and must be based on the market value of the land at the time of the acquisition.
Negotiation: The affected landowners or holders of any interest in the land have the right to negotiate the
compensation offered by the government or its agent. If they are not satisfied with the compensation, they can
appeal to the Land Acquisition Tribunal for a fair hearing.
Payment of Compensation: Once an agreement has been reached, the government or its agent must pay the
compensation to the affected landowners or holders of any interest in the land. The payment must be made
promptly and in full.
Registration of the Transfer: After the compensation has been paid, the government or its agent must then
register the transfer of the land in the affected landowners' or holders' names.
It is worth noting that the government or its agent can only acquire land for public use or public interest. Public
use refers to the development of public infrastructure such as roads, railways, airports, and public utilities.
Public interest refers to the need to promote the general welfare of the public, such as the development of
schools, hospitals, and public housing.
In conclusion, the compulsory acquisition process is a critical aspect of land administration in Kenya, and it is
essential to follow the legal procedures to ensure that landowners or holders of any interest in the land are
adequately compensated for their loss. The Land Act provides a comprehensive framework for the process,
which must be adhered to by the government or its agents
6.5.7. MATRIMONIAL PROPERTY: SEC 2 & 6 MATRIMONIAL PROPERTY ACT, 2013

In Kenya, the Matrimonial Property Act, 2013 governs the distribution and management of matrimonial
property upon the dissolution of a marriage. The act defines matrimonial property as property acquired by
either spouse during the subsistence of the marriage. The act also recognizes that spouses may hold property
jointly, and that property may be registered under one spouse's name but still be considered matrimonial
property.
In conveyancing, the transfer of matrimonial property must adhere to the provisions of the Matrimonial
Property Act, 2013. Section 6 of the act provides that the rights of each spouse to the matrimonial property are
equal, regardless of the contribution made by each spouse towards the acquisition of the property. This
means that in the event of the dissolution of the marriage, each spouse is entitled to an equal share of the
matrimonial property.
The act also provides for the registration of matrimonial property, and section 2 defines the types of property
that can be considered matrimonial property. These include property that is registered in the name of both
spouses, property that is acquired during the marriage, and property that is acquired by either spouse
through inheritance or gift.
When transferring matrimonial property, the spouses must ensure that they have obtained the necessary
consent from each other. Section 6(2) of the act provides that a spouse cannot transfer, mortgage, charge or
otherwise dispose of matrimonial property without the written consent of the other spouse.
In addition, the Matrimonial Property Act, 2013 recognizes the role of customary law in the distribution of
matrimonial property. Section 3 of the act provides that in cases where the marriage is governed by
customary law, the distribution of matrimonial property will be guided by that customary law, subject to the
provisions of the act.
It is important to note that the Matrimonial Property Act, 2013 only applies to marriages that are contracted
after the commencement of the act. For marriages that were contracted before the act came into force, the
distribution of matrimonial property will be governed by the law that was in force at the time of the
marriage.
In conclusion, the transfer of matrimonial property in Kenya must adhere to the provisions of the
Matrimonial Property Act, 2013. Spouses must obtain each other's written consent before disposing of
matrimonial property, and the act recognizes the equal rights of each spouse to the matrimonial property,
regardless of the contribution made towards its acquisition
TOPIC 5:
TENANCIES
AND
LICENCES
.
TENANCIES
7.1 DEFINITION: SEC 2, LA & LRA
7.2 ESSENTIALS; SEC 56, 61 LA
7.3 DISTINCTION BETWEEN TENANCIES AND OTHER AGREEMENTS
7.3.1 TENANCY VIS-A-VIS ASSIGNMENT
7.3.2 TENANCY VIS-A-VIS UNDERLEASE
7.3.3 TENANCY VIS-A-VIS LICENCE
7.4 TYPES OF TENANCIES
7.4.1. PERIODIC TENANCIES SEC 57 LA
7.4.2 SHORT TERM TENANCIES: SEC 58 LA
7.5 IMPLIED CONDITIONS AND EXPRESS COVENANTS; SEC 65 LA
7.6 RIGHTS OF LESSOR AND LESSEE/LANDLORD AND TENANT
7.7 DETERMINATION OF LEASES
7.1 Definition: Section 2 of the Law of Contract Act (LA) defines a tenancy as an agreement, express or implied,
whereby a landlord or lessor grants to a tenant or lessee the right to exclusive possession of land for a period of
time in consideration of a payment or rent. The Land Registration Act (LRA) also defines a tenancy as an
agreement whereby the owner of land grants another person the right to occupy and use the land for a certain
period of time.
7.2 Essentials: A tenancy agreement must have the following essentials as stipulated in Section 56 and 61 of the
LA: offer, acceptance, consideration, certainty of terms, and capacity to contract. The agreement must be in
writing, signed by both parties, and duly witnessed. The agreement should also clearly state the duration of the
tenancy, the rent payable, and the mode of payment.
7.3 Distinction between tenancies and other agreements: There are various agreements that may seem similar to
tenancies, but they are distinct from tenancies. These include:
7.3.1 Tenancy vis-a-vis Assignment: An assignment is the transfer of the tenant's interest in the lease to another
person. The assignee assumes all the obligations and rights of the assignor under the lease. In contrast, a tenancy
involves the grant of a right to occupy and use land for a period of time.
7.3.2 Tenancy vis-a-vis Underlease: An underlease is a lease granted by a tenant who has a superior lease, and it
grants the right to occupy and use the land to another person. In contrast, a tenancy involves the grant of a right
to occupy and use land by the owner or landlord.
7.3.3 Tenancy vis-a-vis Licence: A license is a permission granted by the owner of land to another person to use
and occupy the land for a specific purpose. It does not confer exclusive possession or a right to exclusive
occupation of the land, as is the case with tenancies.
7.4 Types of tenancies:
7.4.1 Periodic tenancies: These are tenancies that are renewed automatically at the end of each period, usually on
a monthly, quarterly, or yearly basis. The duration of the tenancy is not fixed, and either party can terminate the
tenancy by giving notice as stipulated in Section 57 of the LA.
7.4.2 Short-term tenancies: These are tenancies that are for a fixed duration of less than three years, as stipulated
in Section 58 of the LA. They are ideal for tenants who need a short-term lease for various reasons such as
temporary relocation, education, or business.
7.5 Implied conditions and express covenants: A tenancy agreement has both implied conditions and express
covenants. Implied conditions are the basic rights and obligations of the landlord and tenant, while express
covenants are the specific terms of the tenancy agreement. Section 65 of the LA provides for the implied
conditions, which include the landlord's duty to maintain the property in a habitable condition, the tenant's duty
to pay rent, and the obligation to use the property for the purpose for which it was leased.
7.6 Rights of lessor and lessee/landlord and tenant: The landlord has the right to collect rent, receive the property
in good condition at the end of the lease, and terminate the tenancy for breach of the agreement. The tenant has
the right to peaceful enjoyment of the property, the right to privacy, and the right to a safe and habitable
property.
7.6 RIGHTS OF LESSOR AND LESSEE/LANDLORD AND TENANT
7.6.1 Right to receive rent
The landlord has a right to receive rent from the tenant according to the terms of the tenancy agreement. The
rent must be paid on the date agreed upon in the agreement. Failure to pay rent is a breach of the tenancy
agreement, and the landlord may take legal action to recover the arrears.
7.6.2 Right to possession of the property
The landlord has the right to possess the property during the term of the lease. The tenant cannot sublet, assign
or part with the possession of the property without the landlord's written consent. The landlord may also enter
the property to carry out repairs or inspections, but they must give the tenant reasonable notice in advance.
7.6.3 Right to quiet enjoyment

The tenant has the right to quiet enjoyment of the property during the term of the lease. This means that the
landlord must not interfere with the tenant's use and enjoyment of the property, and must not harass or disturb
the tenant. If the landlord breaches this right, the tenant may take legal action to seek damages.
7.6.4 Right to carry out repairs
The landlord has a duty to keep the property in a good state of repair and to ensure that it is fit for habitation.
The tenant may request the landlord to carry out repairs, and if the landlord fails to do so, the tenant may carry
out the repairs and deduct the cost from the rent. However, the tenant must give the landlord reasonable notice
before carrying out any repairs.
7.6.5 Right to compensation for improvements
If the tenant carries out any improvements on the property with the landlord's consent, the tenant may be
entitled to compensation at the end of the lease. The tenant must provide evidence of the improvements carried
out and the cost of the improvements.
7.7 DETERMINATION OF LEASES
7.7.1 Expiry of the term
The lease will automatically come to an end when the term specified in the agreement expires. The tenant must
vacate the property on or before the expiry date. If the tenant continues to occupy the property after the expiry
date, the landlord may take legal action to recover possession of the property.
7.7.2 Notice to quit
If the tenant wishes to terminate the lease before the expiry date, they must give the landlord notice to quit. The
notice period will depend on the terms of the tenancy agreement. The notice must be in writing and must be
served on the landlord in accordance with the terms of the tenancy agreement.
7.7.3 Forfeiture
If the tenant breaches any of the terms of the tenancy agreement, the landlord may take legal action to forfeit the
lease. Forfeiture means that the lease is terminated, and the tenant must vacate the property. The landlord may
also claim damages for any losses suffered as a result of the breach.
In conclusion, tenancies are an essential aspect of the conveyancing process in Kenya. It is essential to
understand the various types of tenancies, the rights and obligations of the landlord and tenant, and the process
for terminating a lease. It is advisable to seek the advice of a legal professional to ensure that all legal
requirements are met during the conveyancing process
WEEK 13 CONTROLLED TENANCIES

7.8 REGIME OF RENT ACTS
7.8.1 THE LANDLORD AND TENANT (SHOPS, HOTELS AND CATERING ESTABLISHMENT)
ACT,CAP 301
7.8.2 RENT RESTRICTION ACT, CAP 296
7.9 ASSIGNMENTS
7.10 DUTIES OF THE ADVOCATES
7.11 REGISTRATION OF LEASES AND EFFECT OF NON-REGISTRATION; SEC 54, 58 LRA
7.8 REGIME OF RENT ACTS:
The Regime of Rent Acts in Kenya governs the relationship between landlords and tenants in controlled
tenancies. There are two main Rent Acts in Kenya that regulate controlled tenancies, namely the Landlord and
Tenant (Shops, Hotels and Catering Establishment) Act, Cap 301, and the Rent Restriction Act, Cap 296.
7.8.1 THE LANDLORD AND TENANT (SHOPS, HOTELS AND CATERING ESTABLISHMENT) ACT, CAP
301:
This Act provides for the regulation of the relationship between landlords and tenants of shops, hotels, and
catering establishments. The Act applies to tenancies where the annual rent does not exceed Kshs 144,000 per
year. It sets out provisions regarding the rights and obligations of both the landlord and the tenant, including the
landlord's obligation to maintain the property in good condition and the tenant's obligation to pay rent.
The Act also provides for the creation of a Rent Restriction Tribunal, which is empowered to hear and determine
disputes between landlords and tenants. The Tribunal has the power to fix the rent payable by the tenant, and to
determine the terms and conditions of the tenancy.
7.8.2 RENT RESTRICTION ACT, CAP 296:
The Rent Restriction Act, Cap 296, provides for the regulation of the relationship between landlords and tenants
of residential premises. The Act applies to tenancies where the annual rent does not exceed Kshs 2,500 per year.
The Act sets out provisions regarding the rights and obligations of both the landlord and the tenant, including
the landlord's obligation to maintain the property in good condition and the tenant's obligation to pay rent.
The Act also provides for the creation of a Rent Tribunal, which is empowered to hear and determine disputes
between landlords and tenants. The Tribunal has the power to fix the rent payable by the tenant, and to
determine the terms and conditions of the tenancy.
7.9 ASSIGNMENTS:
In the context of tenancies, an assignment refers to the transfer of a tenant's interest in a tenancy to a third party.
The assignment must be done with the landlord's consent, and the landlord has the right to refuse consent. The
assignment must also be done in accordance with the terms of the tenancy agreement.
7.10 DUTIES OF THE ADVOCATES:
In conveyancing transactions involving tenancies, advocates have a number of duties. These include:
Advising their clients on the legal implications of the tenancy agreement.

Preparing the tenancy agreement and ensuring that it complies with the relevant laws and regulations.
Ensuring that the tenancy agreement is executed properly and that all necessary parties sign it.
Advising their clients on their rights and obligations under the tenancy agreement.
Advising their clients on the procedure for terminating the tenancy.
7.11 REGISTRATION OF LEASES AND EFFECT OF NON-REGISTRATION; SEC 54, 58 LRA:
Under the Land Registration Act, Cap 300, all leases for a term exceeding three years must be registered with the
relevant land registry. Failure to register the lease may result in the lease being unenforceable against third
parties.
Section 54 of the Land Registration Act provides that a lease of immovable property, or any assignment or
surrender of such a lease, must be registered with the relevant land registry within three months of its creation.
Section 58 of the Land Registration Act provides that a lease that is not registered with the relevant land registry
is not effective against a purchaser of the property for value. This means that if the property is sold to a third
party, the unregistered lease will not be binding on the purchaser
WEEK 14 REMEDIES AND RELIEFS OF THE LESSOR AND THE LESSEE

7.12 FORFEITURE; SEC 73- 76 LA
7.13 DISTRESS FOR RENT
7.14 ACTION FOR RECOVERY OF RENT & FOR DAMAGES
7.15 INJUNCTIONS
7.16 REPUDIATION
Sure, here are detailed notes on Remedies and Reliefs of the Lessor and the Lessee:
7.12 FORFEITURE; SEC 73- 76 LA:
Forfeiture refers to the termination of a lease by the landlord due to the tenant's breach of the lease terms. The
right of forfeiture is a common law remedy that is now codified under section 73-76 of the Law of Contract Act
(LA). The Act provides that where a tenant breaches the terms of a lease, the landlord has a right to terminate
the lease and re-enter the property. However, the landlord must first give the tenant notice of the breach and an
opportunity to remedy it within a reasonable time.
If the tenant fails to remedy the breach within the specified period, the landlord can then re-enter the property
and take possession. The tenant loses all rights to the property, and the lease is terminated. The landlord can
also claim damages for any losses suffered due to the tenant's breach.
7.13 DISTRESS FOR RENT:
Distress for rent is a common law remedy that allows a landlord to seize a tenant's goods to recover unpaid rent.
The remedy is available to landlords under common law, and it is also codified under the Distress for Rent Act
(Cap 293). The Act provides that a landlord can only exercise the right of distress if the rent is at least seven days
overdue.
The landlord can only seize goods that are on the leased property, and they must not be necessary for the
tenant's personal use. The goods can be sold to recover the unpaid rent, and any surplus must be returned to the
tenant.
7.14 ACTION FOR RECOVERY OF RENT & FOR DAMAGES:
If a tenant fails to pay rent, the landlord can sue for recovery of rent and damages. The landlord can claim the
rent arrears and any other expenses incurred as a result of the tenant's breach of the lease terms. The damages
claimed may include any loss of rent that the landlord has suffered as a result of the tenant's breach.
7.15 INJUNCTIONS:
An injunction is a court order that requires a party to do or not do a particular act. In the context of lease
agreements, an injunction can be used by either the landlord or the tenant to enforce the terms of the lease. For
example, if the tenant breaches a clause in the lease, the landlord can seek an injunction requiring the tenant to
comply with the terms of the lease.
Similarly, if the landlord breaches a clause in the lease, the tenant can seek an injunction requiring the landlord
to comply with the terms of the lease. Injunctions can be used to prevent or stop a party from doing something
or to compel a party to do something.
7.16 REPUDIATION:
Repudiation refers to the breach of a contract that is so serious that it goes to the heart of the agreement. In the
context of lease agreements, repudiation can occur if the tenant abandons the leased property or fails to pay rent
for an extended period. Repudiation gives the innocent party the right to terminate the lease and claim
damages.
In conclusion, both the landlord and tenant have various remedies and reliefs available to them in case of a
breach of a lease agreement. These include forfeiture, distress for rent, action for recovery of rent and damages,
injunctions, and repudiation. It is essential to understand these remedies and reliefs when entering into a lease
agreement to ensure that the agreement is enforceable and that both parties' interests are protected.
TOPIC 6:
CHARGES
8.1 DEFINITION, DISTINCTION, TERMINOLOGY

CHARGES AND MORTGAGE; SEC 65, 84 LRA
DEFINITION:
Charges and mortgage are terms that refer to financial interests or claims against property. A charge is a type of
security interest that is created over a property to secure a debt, whereas a mortgage is a specific type of charge
that involves the transfer of legal title to the property to the mortgagee until the debt is paid off.
DISTINCTION:
The key distinction between a charge and a mortgage is the transfer of legal title to the property. In a charge, the
legal title remains with the chargor, but the charge creates a right in favor of the chargee to sell the property in
order to recover the debt if it is not repaid. In contrast, a mortgage involves the transfer of legal title to the
mortgagee, who holds it as security until the debt is repaid. The mortgagor retains possession of the property
and has the right to use it, but the mortgagee has the right to sell the property if the debt is not repaid.
TERMINOLOGY:
There are a number of important terms that are associated with charges and mortgages:
Chargor: This is the person who creates the charge by placing a claim on their property in order to secure a debt.
Chargee: This is the person who holds the charge as security for the debt.
Mortgagor: This is the person who creates the mortgage by transferring legal title to their property to the
mortgagee in order to secure a debt.
Mortgagee: This is the person who holds the legal title to the property as security for the debt.
Redemption: This is the process by which the mortgagor repays the debt and regains legal title to the property.
Foreclosure: This is the process by which the mortgagee sells the property in order to recover the debt if the
mortgagor fails to repay it.
SEC 65, 84 LRA:

Section 65 of the Land Registration Act 2002 (LRA) sets out the requirements for creating a charge over
registered land. It provides that a charge must be in writing and signed by the chargor, and must contain certain
prescribed information, including the amount of the debt and the property that is being charged.
Section 84 of the LRA sets out the requirements for creating a mortgage over registered land. It provides that a
mortgage must be in writing and signed by the mortgagor, and must contain certain prescribed information,
including the amount of the debt and the property that is being mortgaged. In addition, the mortgage must be
registered with the Land Registry in order to be effective.
Overall, charges and mortgages are important concepts in property law and are used to secure debts against
property. It is important for property owners to understand the differences between these two concepts, as well
as the terminology and legal requirements associated with them.
8.2 TYPES OF CHARGES

8.2.1 FORMAL AND INFORMAL CHARGES; SEC 79 LAND ACT
8.2.2 EQUITABLE AND LEGAL
8.2.3 FURTHER AND SECOND; SEC 57 LRA
8.2.4 THIRD PARTY CHARGES
In Kenya, charges are a common method of securing a debt against property in conveyancing transactions. There
are various types of charges that can be created, each with its own legal requirements and implications.
8.2.1 FORMAL AND INFORMAL CHARGES:
Formal charges refer to those that are created in accordance with the legal requirements set out in the relevant
statutes. In Kenya, the Land Act 2012 (LA) provides for the creation of formal charges over land. Section 79 of
the LA sets out the requirements for creating a formal charge. A formal charge must be in writing, signed by the
chargor, and contain certain prescribed information, including the amount of the debt, the property that is being
charged, and the name and address of the chargee. The charge must also be registered with the relevant land
registrar.
Informal charges, on the other hand, are created without following the legal requirements set out in the relevant
statutes. These charges may be created orally or through a written agreement that does not comply with the
formal requirements. Informal charges may still be enforceable, but they are generally more difficult to enforce
and may not provide the same level of protection as formal charges.
8.2.2 EQUITABLE AND LEGAL CHARGES:
Equitable charges are created when the legal title to the property remains with the chargor, but the chargee has
an equitable interest in the property that allows them to enforce the charge. Equitable charges are not registered
with the Land Registry but can be enforced in court.
Legal charges, on the other hand, involve the transfer of legal title to the property to the chargee until the debt is
repaid. Legal charges must be registered with the Land Registry to be effective.
8.2.3 FURTHER AND SECOND CHARGES:

Further charges, also known as subsequent charges, are created when an existing charge is already in place. A
further charge is created to secure an additional debt, with the understanding that the chargee of the original
charge will have priority over the chargee of the further charge.
Second charges are a type of further charge that is created when a property that is already subject to a charge is
charged again. Second charges are also subject to the priority of the original charge.
Section 57 of the Land Registration Act 2012 (LRA) provides for the registration of further and second charges.
The section requires that a further or second charge be registered with the Land Registry within 30 days of its
creation in order to be effective.
8.2.4 THIRD-PARTY CHARGES:
Third-party charges are created when a charge is placed on a property by someone other than the owner of the
property. For example, a bank may create a charge on a property owned by one of its customers in order to
secure a loan that it has provided to a third party.
Third-party charges are subject to the same legal requirements and implications as charges created by the owner
of the property. The charge must be registered with the Land Registry and must comply with the requirements
set out in the relevant statutes.
In conclusion, charges are an important aspect of conveyancing transactions in Kenya. Understanding the
different types of charges, their legal requirements, and implications is crucial to ensuring that property
transactions are conducted smoothly and effectively
8.3 PRIORITY OF CHARGES; SEC 81 LA

In Kenya, priority of charges is an important consideration in conveyancing transactions where there are
multiple charges over the same property. Priority refers to the order in which charges are ranked in terms of
their right to be satisfied out of the proceeds of sale of the property in the event of default by the chargor. The
priority of charges is determined by the date of creation and registration of the charge, as well as any other
factors specified by law.
The priority of charges is governed by Section 81 of the Land Act 2012 (LA), which sets out the following rules:
Priority based on the date of registration: In general, charges that are registered earlier have priority over
charges that are registered later. This means that the first charge registered has priority over subsequent charges.
This is known as the rule of 'first in time, first in right'. This rule applies regardless of the amount of the debt
secured by the charge.
Priority of unregistered charges: Charges that are not registered do not have priority over registered charges.
Therefore, if a charge is created but not registered, it will be subordinated to any subsequent registered charge,
regardless of the date of creation.
Priority of equitable charges: Equitable charges may be given priority over subsequent registered charges if the
equitable chargee had an equitable interest in the property at the time the subsequent charge was created.
However, the equitable chargee must also have exercised their right to priority by registering the equitable
charge with the Land Registry.
Priority of further and second charges: As noted earlier, a further or second charge is created when there is an
existing charge already in place. The priority of a further or second charge is subject to the priority of the original
charge.
Priority of charges created by operation of law: Certain charges are created by operation of law, such as charges
created by virtue of a court order or by operation of statute. These charges are given priority over subsequent
registered charges, regardless of the date of registration.
It is important to note that the priority of charges can also be affected by other factors, such as the terms of the
charge agreement, any subordination agreements between the chargees, and any restrictions or limitations
imposed by law.
In conclusion, understanding the rules governing the priority of charges is important in conveyancing
transactions where multiple charges are created over the same property. Section 81 of the Land Act 2012 sets out
the basic rules for determining the priority of charges based on the date of registration and other factors
specified by law.
8.4 TACKING AND CONSOLIDATION; SEC 82 LA

In Kenya, tacking and consolidation are terms used in relation to multiple charges on a property. Tacking refers
to the ability of a chargee to combine multiple charges into one charge, while consolidation refers to the ability of
a chargee to combine multiple charges into one legal proceeding. These concepts are governed by Section 82 of
the Land Act 2012 (LA).
Tacking:
Tacking occurs when a chargee seeks to add additional funds to an existing charge. For example, if a chargee has
an existing charge for Kshs 1 million on a property, and the chargor requires additional funding of Kshs 500,000,
the chargee may decide to lend the additional funds and tack it onto the existing charge. This means that the
chargee will have a single charge for Kshs 1.5 million on the property, rather than two separate charges. Tacking
is only possible if the existing charge allows for additional borrowing.
The rules governing tacking are set out in Section 82(2) of the LA. Under this provision, a chargee may tack
additional advances onto an existing charge, provided that the original charge and any subsequence tacked
advances are registered together and the chargee notifies any subsequent chargees of the tacking. Additionally,
any tacked advances must be made under the same terms and conditions as the original charge.
Consolidation:
Consolidation occurs when a chargee seeks to combine multiple charges into one legal proceeding. For example,
if there are two charges on a property, a chargee may decide to consolidate the two charges into one legal
proceeding in order to simplify the process of enforcing the charges. Consolidation can only be initiated by the
chargee, and the other chargees must consent to the consolidation.
The rules governing consolidation are set out in Section 82(3) of the LA. Under this provision, a chargee may
apply to the court to consolidate multiple charges into one legal proceeding if the chargor is in default under the
terms of the charges. However, the court may only grant the application if it is satisfied that the consolidation is
necessary and appropriate in the circumstances.
Tacking and consolidation are important tools for chargees in managing their security interests in a property.
However, it is important to note that these tools may have implications for the priority of charges. For example,
if a chargee tacks additional funds onto an existing charge, the priority of the tacked advance may be subject to
the priority of the original charge. Similarly, if multiple charges are consolidated into one legal proceeding, the
priority of the consolidated charge may be subject to the priority of the original charges.
In conclusion, tacking and consolidation are two concepts that are important to understand in the context of
multiple charges on a property. Section 82 of the Land Act 2012 sets out the rules governing tacking and
consolidation, and chargees should be aware of the implications of using these tools for their security interes
8.5 BASIC REQUIREMENTS OF A CHARGE; SEC 80 LAND ACT

8.5.1 FORM & CONTENT OF A FORMAL CHARGE
8.5.2 PARTS OF A CHARGE DOCUMENT
8.5.3 ATTESTATION & EXECUTION
8.5.4 REQUIREMENT OF SPOUSAL CONSENT
In Kenya, a charge is a security interest in property created to secure the repayment of a debt. A charge must
meet certain basic requirements as set out in Section 80 of the Land Act 2012 (LA). This section provides that a
charge must be in the prescribed form and contain certain specified information. Additionally, there are specific
rules regarding attestation, execution, spousal consent, and the role of advocates in the creation of a charge.
Form and Content of a Formal Charge:

A formal charge is a written document that creates a security interest in a property. Section 80(2) of the LA
requires that a formal charge be in the prescribed form and contain the following information:
The names and addresses of the parties to the charge;

A description of the property charged;
The amount of the debt secured by the charge;
The interest rate and the terms of repayment of the debt;
The date on which the debt is to be repaid; and
The signature of the chargor.
The prescribed form for a formal charge is contained in the Land Registration (Forms) Regulations, 2017. The
form includes spaces for the required information and must be completed in accordance with the regulations.
Parts of a Charge Document:

A charge document typically consists of several parts, including:
The preamble: This section identifies the parties to the charge and provides a description of the property
charged. The description should be sufficient to identify the property and enable its registration with the
relevant land registry.
The charging provisions: This section creates the security interest and sets out the terms and conditions of the
charge. It should include the amount of the debt secured by the charge, the interest rate, and the terms of
repayment of the debt. The charging provisions should also specify the events that will trigger default and the
consequences of default.
The covenants: This section includes promises made by the chargor to the chargee regarding the use of the
property and the repayment of the debt. The covenants should be consistent with the charging provisions and
may include restrictions on the use of the property and obligations to maintain insurance.
The execution clause: This section sets out the requirements for the attestation and execution of the charge
document. It should include the date of execution and the signatures of the parties to the charge. In addition, it
should include the name and address of the attesting witness.
Attestation and Execution:

Section 80(4) of the LA requires that a formal charge be attested by a witness who is not a party to the charge.
Additionally, the charge must be executed by the chargor in the presence of the witness. The witness must sign
the charge document and provide their name and address.
Requirement of Spousal Consent:

In Kenya, if the property charged is jointly owned by spouses, the consent of both spouses is required for the
creation of a charge. This requirement is set out in Section 7 of the Matrimonial Property Act 2013
8.6 DUTIES AND RESPONSIBILITIES OF ADVOCATES (BORROWER & LENDER)
Duties of Chargee’s Advocates
The bank will then involve its advocates once it has prepared and secured the execution of the
offer letter by both parties
The following details are contained in the offer letter
Details of the parties- full names and addresses(borrower, lender, guarantor)
Amount to be lent/borrowed and amount to be secured by the property
Repayment period and repayment mode(monthly, quarterly
Particulars of property to be charged(title no or land reference no. e) Details of intended security(informal or
formal charge)
Advise the bank On
The appropriate security, Informal(equitable) vs formal(legal) charge
Proper investigation of title
Confirm the capacity of chargor
Company- confirm if memorandum and articles allow for borrowing and charging
If Trustees-confirm if trust deed allows for borrowing and charging
Draft charge and send to borrower’s advocates for approval(mostly take it or leave it)
Confirm execution and attestation- Is Advocate qualified? Ndolo Ayah case
Engross the charge and send it for execution and attestation
Ensure execution and attestation is done in accordance with the law
Dispatch document to the lender for execution and attestation
Pay stamp duty (obtain from the borrower)
Lodge for registration at lands registry and companies registry (if it is a company within 42 of registration of
charge S 96, 97, 99 of Companies Act, void against liquidator), Cooperative Societies- See Cooperative Societies
Act
Forward the perfected documents to your client with a report on the title confirming the registration
Obtain loan proceeds from chargee for onward transmission to the chargor
Follow up on fee payment
DUTIES OF BORROWER’S ADVOCATE

Discuss offer letter with borrower and advise on effect of security
Obtain all requisite consents, clearances from seller (usually upon a professional undertaking for payment upon
registration)
Obtain original title from seller (usually upon a professional undertaking for payment upon registration)
Obtain a professional undertaking from the lender’s advocates that they will not use the title document for any
other purpose than for the transaction
Approve the charge
Explain the contents of the charge to your client and its effect
Obtain adequate funds for stamp duty
Conflicts of interests
8.7 COVENANTS IN CHARGE AND IMPORT THEREOF; SEC 88 LA

In Kenya's conveyancing transaction, covenants in charges refer to the promises or undertakings made by the
borrower to the lender to secure a loan. These covenants are important in ensuring the repayment of the loan
and the protection of the lender's interests. This article will explore the concept of covenants in charges, their
import, and the applicable statutes in Kenya.
Covenants in Charges:
Covenants in charges are the promises made by the borrower to the lender to secure a loan. These promises may
include the payment of interest, the repayment of the loan, the maintenance of the charged property, and the
provision of financial information to the lender. The borrower's failure to fulfill these promises may result in a
breach of the charge, and the lender may take legal action to enforce the charge.
Import of Covenants in Charges:
Covenants in charges are important in ensuring the repayment of the loan and the protection of the lender's
interests. These covenants provide the lender with the necessary assurances that the loan will be repaid, and the
charged property will be maintained. Failure to fulfill these promises may result in the lender taking legal action
to enforce the charge, including the appointment of a receiver, the exercise of the power of sale, or the possession
of the charged property.
Applicable Statutes:
The legal framework for covenants in charges in Kenya is provided by the Law of Property Act, Cap 27, and the
Companies Act, 2015. Section 88 of the Law of Property Act provides that a charge may contain covenants by the
chargor for payment of interest, repayment of principal, insurance, and maintenance of the charged property.
The section provides that the covenants contained in the charge shall be binding on the chargor and his
successors in title.
The Companies Act, 2015 provides the legal framework for charges created by companies. Section 412 of the Act
provides that a charge created by a company may contain such provisions as the parties agree, including
covenants for payment of principal, interest, and the maintenance of the charged property. The section provides
that the charge shall be binding on the company and its successors in title.
Conclusion:
Covenants in charges are an essential aspect of Kenya's conveyancing transaction, providing the lender with the
necessary assurances that the loan will be repaid and the charged property will be maintained. The Law of
Property Act and the Companies Act, 2015 provide the legal framework for covenants in charges in Kenya, and
it is essential for parties involved in creating or enforcing charges to understand the legal requirements and
procedures to ensure a smooth and efficient process
8.8 RETROSPECTIVE EFFECT; SEC 78(1) LA

In Kenya's conveyancing transaction, retrospective effect refers to the ability of a charge to cover future advances
made by the lender to the borrower. This means that the charge will cover not only the original loan amount but
also any additional amounts that may be advanced in the future. This article will explore the concept of
retrospective effect in charges, its implications, and the applicable statutes in Kenya.
Retrospective Effect:
Section 78(1) of the Law of Property Act provides for the retrospective effect of a charge. This section states that a
charge created to secure future advances shall be deemed to have been created when the advances were made.
This means that the charge will cover not only the original loan amount but also any additional amounts that
may be advanced in the future.
Implications of Retrospective Effect:
The retrospective effect of a charge has significant implications for both the borrower and the lender. For the
borrower, it means that the charge will continue to secure the loan even if additional funds are advanced in the
future. This may limit the borrower's ability to borrow from other lenders or encumber the charged property
further.
For the lender, the retrospective effect of a charge provides additional security and flexibility in the lending
process. The lender can advance additional funds to the borrower without having to create a new charge, saving
time and costs. The lender can also rely on the existing charge to enforce the loan and recover the outstanding
amounts owed.
The legal framework for retrospective effect in charges in Kenya is provided by Section 78(1) of the Law of
Property Act. The section provides that a charge created to secure future advances shall be deemed to have been
created when the advances were made. The section further provides that the charge shall have the same priority
as if it had been created at the time the advances were made.
Conclusion:
Retrospective effect is an important aspect of Kenya's conveyancing transaction, providing lenders with
additional security and flexibility in the lending process. The Law of Property Act provides the legal framework
for retrospective effect in charges, and it is essential for parties involved in creating or enforcing charges to
understand the legal requirements and implications to ensure a smooth and efficient process
WEEK 16: REMEDIES OF THE PARTIES

8.9 REMEDIES OF THE CHARGEEE
8.9.1 EQUITY OF REDEMPTION; SEC 89 LA
8.9.2 NOTICE; SEC 56 LRA, SEC 90 LA
8.9.3 ACTION FOR MONEY; SEC 91 LA
8.9.4 APPOINTMENT OF RECEIVER; SEC 92 LA
8.9.5 LEASING; SEC 93 LA
8.9.6 POSSESSION; SEC 94 LA
8.9.7 CHARGEE’S POWER OF SALE; SEC 96 LA
In Kenya conveyancing and charges, the law provides various remedies to the parties involved in a charge
transaction. These remedies are aimed at protecting the interests of the chargee in case the chargor defaults in
the repayment of the loan. This article will explore the remedies available to the chargee under Kenyan law.
8.9 Remedies of the Chargee:
8.9.1 Equity of redemption; Sec 89 LA:
The equity of redemption is a common law principle that allows the chargor to redeem the property charged by
paying off the loan and any other costs associated with the charge transaction. The equity of redemption is a
fundamental right of the chargor and cannot be waived. Section 89 of the Land Act provides that the chargor has
a right to redeem the charged property at any time before the chargee exercises their power of sale.
8.9.2 Notice; Sec 56 LRA, Sec 90 LA:
Before exercising any of their remedies, the chargee must give the chargor notice of their intention to do so.
Section 56 of the Land Registration Act provides that the chargee must serve a notice of demand on the chargor,
requiring them to pay the outstanding debt within a specified time. Failure to comply with the notice may result
in the chargee exercising their remedies. Section 90 of the Land Act also requires the chargee to give the chargor
notice of their intention to exercise their power of sale.
8.9.3 Action for money; Sec 91 LA:
If the chargor fails to pay the outstanding debt within the specified time, the chargee may file an action for the
recovery of the debt. Section 91 of the Land Act provides that the chargee may sue the chargor for the amount of
the debt, interest, and any other costs associated with the charge transaction.
8.9.4 Appointment of receiver; Sec 92 LA:
The chargee may also appoint a receiver to manage the charged property on their behalf. Section 92 of the Land
Act provides that the chargee may appoint a receiver if the chargor defaults in the repayment of the loan. The
receiver has the power to manage the property, collect rent, and use the income to pay off the outstanding debt.
8.9.5 Leasing; Sec 93 LA:
The chargee may also lease the charged property to a third party. Section 93 of the Land Act provides that the
chargee may lease the property to a tenant for a period not exceeding five years. The income generated from the
lease can be used to pay off the outstanding debt.
8.9.6 Possession; Sec 94 LA:

If the chargor fails to pay the outstanding debt, the chargee may take possession of the charged property.
Section 94 of the Land Act provides that the chargee may take possession of the property if the chargor fails to
pay the outstanding debt within the specified time. However, the chargee must give the chargor notice of their
intention to take possession of the property.
8.9.7 Chargee’s power of sale; Sec 96 LA:
The chargee may exercise their power of sale if the chargor fails to pay the outstanding debt within the specified
time. Section 96 of the Land Act provides that the chargee may exercise their power of sale if the chargor
defaults in the repayment of the loan. The chargee must give the chargor notice of their intention to exercise
their power of sale. The sale must also be conducted in a manner that is fair and reasonable.
In conclusion, the remedies available to the chargee under Kenyan law are aimed at protecting their interests in
case the chargor defaults in the repayment of the loan
8.10 REMEDIES OF THE CHARGOR

8.10.1 RE-OPENING OF CHARGES
8.10.2 VARIATION OF THE CHARGE
8.10.3 EQUITABLE REMEDIES SUCH AS AN INJUNCTION
In Kenya, the law provides various remedies for the chargor in a charge transaction. These remedies are aimed
at protecting the interests of the chargor and ensuring that they are not unfairly prejudiced in the event of
default. This article will explore the remedies available to the chargor under Kenyan law.
8.10 Remedies of the Chargor:
8.10.1 Re-opening of Charges:
The chargor has the right to apply to the court to have the charge re-opened and the terms of the charge varied if
they believe that the terms of the charge are oppressive or unfairly prejudicial. Section 94 of the Land Act
provides that the chargor may apply to the court to vary the terms of the charge if they believe that the charge is
oppressive or unfairly prejudicial. The court has the power to vary the terms of the charge to ensure that it is fair
and reasonable.
8.10.2 Variation of the Charge:
The chargor may also negotiate with the chargee to vary the terms of the charge. This may include extending the
repayment period or reducing the interest rate. Section 93 of the Land Act provides that the chargor may enter
into negotiations with the chargee to vary the terms of the charge.
8.10.3 Equitable Remedies such as an Injunction:
The chargor may also seek equitable remedies such as an injunction to prevent the chargee from exercising their
remedies if they believe that the chargee is acting unfairly or oppressively. An injunction is a court order that
prohibits a party from doing something. Section 65 of the Law of Contract Act provides that the court may grant
an injunction to prevent a breach of contract.
In conclusion, the remedies available to the chargor in a charge transaction in Kenya are aimed at ensuring that
they are not unfairly prejudiced in the event of default. The chargor has the right to apply to the court to have
the charge re-opened and the terms of the charge varied if they believe that the charge is oppressive or unfairly
prejudicial. The chargor may also negotiate with the chargee to vary the terms of the charge. In addition, the
chargor may seek equitable remedies such as an injunction to prevent the chargee from exercising their remedies
if they believe that the chargee is acting unfairly or oppressively. It is important for the chargor to understand
their rights and remedies under Kenyan law to ensure that they are protected in a charge transaction
8.11 REASSIGNMENTS
In Kenya, a charge is a form of security for a debt, and it involves the transfer of an interest in property to the
chargee. In some cases, the chargee may want to reassign the charge to another party. This process is known as
reassignment, and it involves the transfer of the charge from the original chargee to a new party. This article will
explore the process of reassignment in charges in Kenya, including the applicable statutes.
Reassignments in Charges:
The reassignment of a charge involves the transfer of the charge from one party to another. The chargee may
want to reassign the charge for various reasons, including the need to raise funds or to transfer the risk
associated with the charge to another party. The process of reassignment involves the transfer of the charge, and
the new party assumes the rights and obligations of the original chargee.
The applicable statutes in Kenya regarding reassignments in charges include the Land Act, the Land Registration
Act, and the Law of Contract Act.
Section 97 of the Land Act provides for the transfer of charges, which includes the reassignment of charges. The
section provides that a charge may be transferred by the chargee to another person by way of assignment,
subject to any restrictions or conditions set out in the charge.
Section 52 of the Land Registration Act provides for the registration of the transfer of charges. The section
provides that the transfer of a charge must be registered in the Land Register to be effective. The registration
process involves the preparation of a transfer document, which must be signed by both the transferor and the
transferee. The transfer document must also be stamped and registered with the Land Registry.
Section 25 of the Law of Contract Act provides for the assignment of contractual rights. The section provides that
a contract may be assigned unless the contract expressly prohibits it or the assignment would materially alter the
obligation of the parties.
Procedure for Reassignment:
The process of reassignment in charges involves the following steps:

Agreement between the original chargee and the new party: The original chargee and the new party must enter
into an agreement for the reassignment of the charge. The agreement must specify the terms and conditions of
the reassignment, including the consideration to be paid and any other obligations of the parties.
Preparation of the transfer document: The parties must prepare a transfer document, which must be signed by
both the original chargee and the new party. The transfer document must include the details of the charge, the
consideration paid, and any other relevant details.
Stamping and registration of the transfer document: The transfer document must be stamped and registered
with the Land Registry. The registration process involves the payment of stamp duty and registration fees.
Notification of the transfer: The parties must notify the chargor of the transfer of the charge. The notification
must be in writing, and it must include the details of the new chargee.
Conclusion:
Reassignment of charges is a common practice in Kenya, and it involves the transfer of a charge from one party
to another. The process of reassignment involves the preparation of a transfer document, which must be
registered with the Land Registry. The applicable statutes in Kenya include the Land Act, the Land Registration
Act, and the Law of Contract Act. It is important for parties involved in the reassignment of charges to
understand their rights and obligations under Kenyan law
8.12 DISCHARGES; SEC 85, 102 LA

In Kenya, a charge is a form of security for a debt, and it involves the transfer of an interest in property to the
chargee. Once the debt secured by the charge has been fully paid, the charge must be discharged. Discharge is
the process of releasing the charge and restoring the property to the chargor. This article will explore the process
of discharge of charges in Kenya, including the applicable statutes.
Discharge of Charges:
Discharge of a charge is the process of releasing the property from the charge and restoring it to the chargor. The
discharge process is initiated once the debt secured by the charge has been fully paid or satisfied. Once the
discharge process is complete, the chargor regains full ownership and control of the property.
The applicable statutes in Kenya regarding the discharge of charges include Section 85 and Section 102 of the
Land Act.
Section 85 of the Land Act provides for the discharge of a charge by the chargee. The section provides that the
chargee must execute and deliver a discharge to the chargor once the debt secured by the charge has been fully
paid or satisfied. The discharge must be in writing, signed by the chargee, and delivered to the chargor.
Section 102 of the Land Act provides for the discharge of a charge by the Registrar of Titles. The section provides
that the chargor may apply to the Registrar of Titles for a discharge of the charge. The application must be in
writing, and it must be accompanied by evidence of the payment of the debt secured by the charge. The
Registrar of Titles may then issue a discharge of the charge, which must be registered in the Land Register.
Procedure for Discharge:
The process of discharge of a charge involves the following steps:
 Payment of the debt: The first step in the discharge process is the payment of the debt secured by the
charge. The payment must be made in full, and the chargee must confirm receipt of the payment.
 Preparation of the discharge document: Once the debt has been fully paid, the chargee must prepare a
discharge document. The discharge document must be in writing, signed by the chargee, and delivered
to the chargor.
 Registration of the discharge document: The discharge document must be registered in the Land
Register. The registration process involves the payment of stamp duty and registration fees.
 Application to the Registrar of Titles: If the chargee fails to execute and deliver a discharge to the
chargor, the chargor may apply to the Registrar of Titles for a discharge of the charge. The application
must be in writing and accompanied by evidence of the payment of the debt secured by the charge.
 Issuance of the discharge: Once the application for discharge is approved, the Registrar of Titles may
issue a discharge of the charge, which must be registered in the Land Register.
Conclusion:
The discharge of charges is an important process in Kenya's conveyancing transaction. It involves the release of
the property from the charge and restoring it to the chargor. The applicable statutes in Kenya regarding the
discharge of charges include Section 85 and Section 102 of the Land Act. It is important for parties involved in
the discharge of charges to understand their rights and obligations under Kenyan law to ensure a smooth and
efficient process
8.13 COMPANY SECURITIES (FIXED & FLOATING CHARGES)
In Kenya, company securities refer to the various forms of security that can be created by a company to secure
its debts or obligations. The two most common forms of company securities are fixed charges and floating
charges. This article will explore the concept of fixed and floating charges in Kenya's conveyancing transaction,
including the applicable statutes.
Fixed Charges:
A fixed charge is a type of security created over specific assets of a company. The charge creates a proprietary
interest in the charged assets and prevents the company from disposing of or dealing with the assets without the
chargee's consent. The assets covered by a fixed charge must be clearly defined and identified, and the charge
must be registered with the relevant authority.
The Companies Act, 2015 provides the legal framework for fixed charges in Kenya. Section 455 of the Act defines
a fixed charge as a charge that creates a proprietary interest in specific assets of a company. The section provides
that a fixed charge must be registered with the Registrar of Companies within 30 days of its creation. Failure to
register a fixed charge may render it void or unenforceable against third parties.
Floating Charges:
A floating charge is a type of security created over the whole or part of a company's assets, both present and
future. Unlike a fixed charge, a floating charge does not create a proprietary interest in the charged assets, but
rather an equitable interest. The company is allowed to deal with the charged assets in the ordinary course of
business, but the charge crystallizes upon the occurrence of certain events, such as the company's insolvency or
default.
The legal framework for floating charges in Kenya is provided by the Companies Act, 2015. Section 455 of the
Act defines a floating charge as a charge that creates an equitable interest in a company's assets, present or
future. The section provides that a floating charge must be registered with the Registrar of Companies within 30
days of its creation. Failure to register a floating charge may render it void or unenforceable against third parties.
Differences between Fixed and Floating Charges:

Nature of security: A fixed charge creates a proprietary interest in specific assets of a company, while a floating
charge creates an equitable interest in the company's assets, present or future.
Identification of assets: The assets covered by a fixed charge must be clearly defined and identified, while a
floating charge covers the whole or part of a company's assets, present or future.
Dealings with charged assets: A company is not allowed to dispose of or deal with the assets covered by a fixed
charge without the chargee's consent, while a company is allowed to deal with the assets covered by a floating
charge in the ordinary course of business.
Conclusion:
Fixed and floating charges are important forms of company securities in Kenya's conveyancing transaction. The
Companies Act, 2015 provides the legal framework for these types of charges. It is important for parties
involved in creating or enforcing fixed and floating charges to understand the legal requirements and
procedures to ensure a smooth and efficient proces
TOPIC 7:
RIGHTS
IN
ALIENO
SOLO
EASEMENTS AND ANALOGOUS RIGHTS
A) ENTRY ORDER
b) ACCESS ORDER
Easements and analogous rights refer to rights that give one person the legal authority to use another person's
property for a specific purpose. Easements can be created in various ways, such as by an express grant,
implication, or prescription. An analogous right, on the other hand, is a right that is similar to an easement but
not precisely an easement. In Kenya, these rights are governed by various statutes, including the Land Act, the
Land Registration Act, and the Registered Land Act.
A) ENTRY ORDER
An entry order is a legal document that grants a person the right to enter another person's property to carry out
specific activities. The entry order is often issued by a court or other legal authority, and it may include
conditions that the person must follow while on the property. In Kenya, entry orders are governed by the Land
Act, which provides for the circumstances under which a person can be granted an entry order.
Section 103 of the Land Act provides for entry orders in relation to protected areas. Protected areas are areas of
land that are designated as protected under the Wildlife Conservation and Management Act. If a protected area
is situated on private land, the owner of the land may be required to grant an entry order to the relevant
authority to enable them to carry out their functions. The entry order may be granted for a specific period and
subject to certain conditions.
Section 107 of the Land Act also provides for entry orders in relation to mineral rights. If a person has mineral
rights over a particular piece of land, they may be granted an entry order to carry out exploration or mining
activities. The entry order will specify the nature of the activities that the person can carry out and the period
within which they must be completed.
B) ACCESS ORDER
An access order is a legal document that grants a person the right to access another person's property for a
specific purpose. Access orders are often issued by a court or other legal authority, and they may include
conditions that the person must follow while on the property. In Kenya, access orders are governed by the
Registered Land Act.
Section 54 of the Registered Land Act provides for access orders in relation to landlocked parcels of land. If a
person owns a parcel of land that is surrounded by other parcels of land, and there is no access to a public road,
they may apply for an access order. The access order will grant them the right to cross over the surrounding
land to reach a public road. The access order may include conditions, such as the payment of compensation to
the owner of the surrounding land.
In conclusion, easements and analogous rights are essential legal concepts that allow individuals to use and
access other people's property for specific purposes. The Land Act, the Land Registration Act, and the
Registered Land Act govern these rights in Kenya. Entry orders and access orders are two examples of
easements and analogous rights that are commonly used in Kenya. Understanding the legal framework that
governs these rights is essential for conveyancing transactions in Kenya
c) EASEMENTS; SEC 138 - 140 LA, SEC 99 LRA

I) EXPRESS GRANT
II) IMPLIED EASEMENTS
III)EXPRESS RESERVATIONS
An easement is a right that allows one person to use another person's property for a specific purpose. Easements
can be created in various ways, including by an express grant, implication, or prescription. In Kenya, easements
are governed by various statutes, including the Land Act, the Land Registration Act, and the Registered Land
Act.
I) EXPRESS GRANT
An express grant is an easement that is created by a written agreement between the parties involved. The
agreement must be signed and executed by the parties involved and must be registered with the relevant land
registry. In Kenya, express grants are governed by Section 138 of the Land Act, which provides for the creation
of easements by way of a deed or other written instrument.
Section 139 of the Land Act provides that an express grant must contain certain information, including the
identity of the grantor and the grantee, the description of the property subject to the easement, and the nature
and extent of the easement. The express grant must also be registered with the relevant land registry to be valid.
II) IMPLIED EASEMENTS

Implied easements are created by the conduct of the parties involved or by operation of law. In Kenya, implied
easements are governed by Section 140 of the Land Act, which provides that an easement may be implied by the
common intention of the parties or by the circumstances surrounding the transaction.
An easement may be implied by the common intention of the parties when both parties intend for the easement
to be created but do not put it in writing. For example, if the owner of a property allows their neighbor to use a
path across their property to access a public road, an easement may be implied.
An easement may also be implied by the circumstances surrounding the transaction. For example, if a property
is sold with a building on it, and the building is the only means of access to the property, an easement may be
implied to allow the owner of the building to access their property.
III) EXPRESS RESERVATIONS

An express reservation is an easement that is created when the owner of a property reserves the right to use a
portion of the property for a specific purpose. In Kenya, express reservations are governed by Section 99 of the
Land Registration Act.
Section 99 of the Land Registration Act provides that an express reservation may be created by a registered
instrument or by a court order. The reservation must be registered with the relevant land registry and must
contain certain information, including the identity of the person making the reservation, the description of the
property subject to the reservation, and the nature and extent of the reservation.
In conclusion, easements are an essential legal concept that allows individuals to use and access other people's
property for specific purposes. In Kenya, easements are governed by various statutes, including the Land Act,
the Land Registration Act, and the Registered Land Act. Easements can be created in various ways, including by
an express grant, implication, or prescription. Understanding the legal framework that governs easements is
essential for conveyancing transactions in Kenya
d) CANCELLATION AND EXTINGUISHMENT OF EASEMENTS AND ANALOGOUS RIGHTS

9.1 PROFITS A PRENDRE
9.2 RESTRICTIVE COVENANTS
● CREATION AND CANCELLATION OF EASEMENTS
9.3 PROFITS
9.4 RESTRICTIVE AGREEMENTS; SEC 41 LRA, SEC 69 LA
9.5 WAYLEAVES; SEC 144 LA
In Kenya, the creation and cancellation of easements, profits, restrictive covenants, and agreements are governed
by various statutes, including the Land Act, the Land Registration Act, and the Registered Land Act.
CREATION AND CANCELLATION OF EASEMENTS

Section 138 of the Land Act provides that easements may be created by a written instrument or by implication.
Easements may also be cancelled or extinguished in various ways.
i) By mutual consent: Parties involved in an easement may agree to cancel it by mutual consent. The cancellation
must be in writing and registered with the relevant land registry.
ii) By abandonment: An easement may be extinguished by abandonment if the person who has the benefit of the
easement fails to use it for an extended period, and the owner of the servient property indicates by their actions
or words that they do not recognize the easement's existence.
iii) By prescription: An easement may be extinguished by prescription if the person who has the benefit of the
easement fails to use it for a long time, and the owner of the servient property objects to the easement's existence.
PROFITS A PRENDRE
Profits a prendre are a type of easement that allows someone to take something from another person's land. In
Kenya, profits a prendre are governed by Section 69 of the Land Act. A profit a prendre may be extinguished in
the same way as an easement.
RESTRICTIVE COVENANTS
A restrictive covenant is a legal agreement that limits the use of a property. In Kenya, restrictive covenants are
governed by Section 41 of the Land Registration Act. A restrictive covenant may be cancelled or modified by
mutual consent or by a court order.
RESTRICTIVE AGREEMENTS
A restrictive agreement is an agreement between parties that limits the use of a property. In Kenya, restrictive
agreements are governed by Section 69 of the Land Act. A restrictive agreement may be cancelled or modified by
mutual consent or by a court order.
WAYLEAVES
A wayleave is an agreement that allows someone to use someone else's land for the purpose of installing or
maintaining services such as electricity or telecommunications. In Kenya, wayleaves are governed by Section 144
of the Land Act. A wayleave may be cancelled or modified by mutual consent or by a court order.
In conclusion, the creation and cancellation of easements, profits, restrictive covenants, and agreements are
important legal concepts that govern property rights in Kenya. Understanding the legal framework that governs
these concepts is essential for conveyancing transactions in Kenya. The Land Act, the Land Registration Act, and
the Registered Land Act provide the legal basis for the creation and cancellation of these rights
TOPIC 8:
CAUTIONS,
INHIBITIONS
&
RESTRICTIO
NS
10.1 CAUTIONS
10.1.1. Definition of a caution
10.1.2 Procedure of Lodging and removing Caution
10.1 CAUTIONS:
10.1.1 Definition of a caution:
A caution is a legal mechanism used in the context of property transactions to protect the interests of parties who
have an interest in the property but are not registered proprietors. In Kenya, a caution is a legal notice lodged by
a person who has an interest in land, which is not reflected in the register, to prevent any dealing with the land
without their knowledge or consent. It acts as a warning to potential purchasers, mortgagees or other interested
parties that the property may not be free from encumbrances and that there is another person who has a claim to
the property.
A caution can be lodged by any person who has an interest in the property, including those who claim an
equitable interest, such as a beneficiary of a trust, a lessee or a licensee. A caution can also be lodged by a
creditor who has a charge on the property or a person who has a right of pre-emption or a right of way over the
land.
The purpose of a caution is to protect the interests of the person who has lodged it by preventing any dealing
with the property without their knowledge or consent. It also ensures that the registered proprietor cannot deal
with the property without notifying the person who has lodged the caution.
10.1.2 Procedure of Lodging and removing Caution:
In Kenya, the procedure for lodging a caution is set out in Section 139 of the Land Registration Act, 2012. To
lodge a caution, a person must fill in a form known as Form 1 and submit it to the registrar of titles. The form
must contain the details of the person lodging the caution, the nature of the interest they have in the property
and the reasons for lodging the caution.
Once the form has been submitted, the registrar of titles will enter the caution in the register of cautions, which is
a public record of all cautions lodged against a property. The registrar will also notify the registered proprietor
of the caution and provide them with a copy of the caution form.
A caution remains in place until it is removed by the person who lodged it, or by a court order. To remove a
caution, the person who lodged it must fill in a form known as Form 2 and submit it to the registrar of titles. The
form must contain the reasons for removing the caution, and the registrar will remove the caution from the
register of cautions.
If the registered proprietor wishes to have a caution removed, they can apply to the court for an order to remove
it. The court may order the removal of the caution if it is satisfied that the person who lodged the caution no
longer has an interest in the property, or if the caution was lodged in bad faith.
In conveyancing transactions in Kenya, it is essential to mention any specific sections of the applicable statutes
when lodging or removing a caution. For example, when lodging a caution against a property that is subject to a
lease, it is important to refer to the relevant sections of the Leasehold Property Act to ensure that the caution is
effective. Similarly, when removing a caution, it is important to refer to the relevant sections of the Land
Registration Act to ensure that the process is carried out correctly.
In conclusion, a caution is a vital mechanism for protecting the interests of parties who have an interest in land
but are not registered proprietors. The process of lodging and removing a caution is straightforward, but it is
important to follow the correct procedure and refer to the relevant statutes to ensure that the caution is effective.
10.2 INHIBITION
10.2.1 Definition of Inhibition
10.2.2 Procedure of lodging and removing an inhibition
10.2 INHIBITION:
10.2.1 Definition of Inhibition:
An inhibition is a legal mechanism used in property transactions to prevent a registered proprietor from dealing
with their property. In Kenya, an inhibition is a notice that is lodged against a registered proprietor, preventing
them from disposing of their property or creating any encumbrances on it. An inhibition is typically lodged by a
creditor who has a claim against the registered proprietor and wishes to prevent them from disposing of their
property until the debt is settled.
An inhibition can also be lodged by a person who has an interest in the property but is not a registered
proprietor. For example, a person who has a right of pre-emption or a right of way over the land may lodge an
inhibition to prevent the registered proprietor from selling or mortgaging the property without their consent.
The purpose of an inhibition is to protect the interests of the person who has lodged it by preventing the
registered proprietor from dealing with the property without settling their debt or obtaining their consent.
10.2.2 Procedure of lodging and removing an inhibition:
In Kenya, the procedure for lodging an inhibition is set out in Section 142 of the Land Registration Act, 2012. To
lodge an inhibition, the person who wishes to do so must fill in a form known as Form 4 and submit it to the
registrar of titles. The form must contain the details of the registered proprietor, the nature of the interest being
secured and the reasons for lodging the inhibition.
Once the form has been submitted, the registrar of titles will enter the inhibition in the register of inhibitions,
which is a public record of all inhibitions lodged against a property. The registrar will also notify the registered
proprietor of the inhibition and provide them with a copy of the inhibition form.
An inhibition remains in place until it is removed by the person who lodged it, or by a court order. To remove
an inhibition, the person who lodged it must fill in a form known as Form 5 and submit it to the registrar of
titles. The form must contain the reasons for removing the inhibition, and the registrar will remove the
inhibition from the register of inhibitions.
If the registered proprietor wishes to have an inhibition removed, they can apply to the court for an order to
remove it. The court may order the removal of the inhibition if it is satisfied that the debt has been settled, or if
the inhibition was lodged in bad faith.
In conveyancing transactions in Kenya, it is important to mention any specific sections of the applicable statutes
when lodging or removing an inhibition. For example, when lodging an inhibition against a registered
proprietor who is subject to a mortgage, it is important to refer to the relevant sections of the Land Act, the
Mortgage Act and the Land Registration Act to ensure that the inhibition is effective. Similarly, when removing
an inhibition, it is important to refer to the relevant sections of the Land Registration Act to ensure that the
process is carried out correctly.
In conclusion, an inhibition is an important mechanism for protecting the interests of creditors and other
interested parties in property transactions. The process of lodging and removing an inhibition is
straightforward, but it is important to follow the correct procedure and refer to the relevant statutes to ensure
that the inhibition is effective
10.3 DEFINITION OF A RESTRICTION

10.3.1 Procedure of lodging and removing a Restriction
10.3 DEFINITION OF A RESTRICTION:
A restriction in conveyancing refers to a legal mechanism that imposes limits on how a property can be used or
disposed of. The purpose of a restriction is to protect the interests of the person who has created it, such as the
original developer of a housing estate, or a local authority, by ensuring that the property is used in a certain way
or for a certain purpose.
In Kenya, restrictions can be placed on property titles in a number of ways, such as by way of a covenant or an
agreement between the parties. A restriction may limit the use of the property to residential purposes only, or it
may impose limitations on the size or type of buildings that can be constructed on the property. It can also
restrict the type of businesses that can be operated on the property.
10.3.1 PROCEDURE OF LODGING AND REMOVING A RESTRICTION:
In Kenya, the procedure for lodging and removing a restriction is set out in Section 144 of the Land Registration
Act, 2012. To lodge a restriction, the person who wishes to do so must fill in a form known as Form 4 and submit
it to the registrar of titles. The form must contain the details of the restriction, including the nature of the
restriction and the reasons for imposing it.
Once the form has been submitted, the registrar of titles will enter the restriction in the register of restrictions,
which is a public record of all restrictions lodged against a property. The registrar will also notify the registered
proprietor of the restriction and provide them with a copy of the restriction form.
A restriction remains in place until it is removed by the person who imposed it or by a court order. To remove a
restriction, the person who imposed it must fill in a form known as Form 5 and submit it to the registrar of titles.
The form must contain the reasons for removing the restriction, and the registrar will remove the restriction
from the register of restrictions.
If the registered proprietor wishes to have a restriction removed, they can apply to the court for an order to
remove it. The court may order the removal of the restriction if it is satisfied that the restriction is no longer
necessary or is unreasonable.
In Kenya conveyancing, it is important to mention any specific sections of the applicable statutes when lodging
or removing a restriction. For example, when imposing a restriction on a property title, it is important to refer to
the relevant sections of the Land Act, the Planning Act and the Land Registration Act to ensure that the
restriction is effective. Similarly, when removing a restriction, it is important to refer to the relevant sections of
the Land Registration Act to ensure that the process is carried out correctly.
In conclusion, a restriction is an important mechanism for protecting the interests of the person who imposes it
in property transactions. The process of lodging and removing a restriction is straightforward, but it is
important to follow the correct procedure and refer to the relevant statutes to ensure that the restriction is
effective.
10.4 Effect of Cautions/Inhibitions/Restrictions

10.4 EFFECT OF CAUTIONS/INHIBITIONS/RESTRICTIONS IN CONVEYANCING TRANSACTION KENYA
Cautions, inhibitions, and restrictions are important mechanisms in conveyancing transactions in Kenya. They
are used to protect the interests of parties involved in a transaction, and they can have a significant impact on the
ability of a property to be bought, sold or mortgaged.
10.4.1 EFFECT OF CAUTIONS
A caution is a notice registered against a property title to indicate that someone has an interest in the property.
The effect of a caution is to prevent any transaction involving the property without the consent of the person
who registered the caution. Section 142 of the Land Registration Act, 2012 provides for the effect of a caution. It
states that once a caution is registered, it serves as a notice to anyone dealing with the property that there is a
potential interest in the property, and that no transaction can take place without the consent of the person who
registered the caution.
10.4.2 EFFECT OF INHIBITIONS
An inhibition is a court order that prevents any transaction involving a property without the permission of the
court. Inhibitions are usually ordered by a court in cases where there is a dispute over ownership or a claim
against the property. Section 115 of the Land Registration Act, 2012 provides for the effect of an inhibition. It
states that once an inhibition is registered, it prevents any transaction involving the property without the
permission of the court. The inhibition remains in place until it is removed by the court.
10.4.3 EFFECT OF RESTRICTIONS
A restriction is a legal mechanism that limits how a property can be used or disposed of. The effect of a
restriction is to prevent the registered proprietor from using or disposing of the property in a manner that is
inconsistent with the restriction. Section 143 of the Land Registration Act, 2012 provides for the effect of a
restriction. It states that once a restriction is registered, it serves as notice to anyone dealing with the property
that there are limitations on the use and disposal of the property. Any transaction involving the property must
be consistent with the restriction.
In summary, the effect of a caution is to prevent any transaction involving the property without the consent of
the person who registered the caution, the effect of an inhibition is to prevent any transaction involving the
property without the permission of the court, and the effect of a restriction is to limit how a property can be used
or disposed of. The specific sections of the Land Registration Act, 2012 that provide for the effects of these
mechanisms should be referred to in conveyancing transactions in Kenya to ensure that they are used correctly
and to protect the interests of the parties involved
TOPIC 9:
TAXATION
IN
CONVEYANC
ING
TAXATION ON DOCUMENTS
11.1 STAMP DUTY
11.1.1 STAMP DUTY VALUATION
11.1.2 VALUATION ON GIFT INTER-VIVOS
11.1.3 HOW TO COMPUTE STAMP DUTY PAYMENT
11.1.4 EXEMPTIONS TO PAYMENT OF STAMP DUTY
11.1.5 PROCESS OF PAYING STAMP DUTY
11.1.5 STAMPING OUT OF TIME
11.1.6 REFUND OF STAMP DUTY
Introduction:
Stamp Duty is a tax that is charged on various types of documents that are executed in Kenya. The law that
governs the payment of stamp duty is the Stamp Duty Act (Chapter 480 of the Laws of Kenya). In this article, we
will focus on the provisions of the Act as they relate to conveyancing transactions.
11.1 Stamp Duty:
Stamp Duty is a tax that is levied on various documents that are executed in Kenya. The types of documents that
are subject to stamp duty include agreements, contracts, deeds, and conveyances.
11.1.1 Stamp Duty Valuation:
The value of stamp duty is determined by the market value of the property that is being conveyed. The market
value is the price that the property would fetch if it were sold in the open market. In order to determine the
market value, the Stamp Duty Act provides that the Commissioner of Lands shall provide a valuation certificate.
11.1.2 Valuation on Gift Inter-Vivos:
Gifts that are made during the lifetime of the donor are subject to stamp duty. The value of the gift is
determined by the market value of the property that is being gifted.
11.1.3 How to Compute Stamp Duty Payment:
The amount of stamp duty payable is calculated as a percentage of the market value of the property that is being
conveyed. The Stamp Duty Act provides for different rates of stamp duty depending on the nature of the
transaction. For example, the rate of stamp duty for a transfer of land is 4% of the market value, while the rate of
stamp duty for a lease is 2% of the market value.
11.1.4 Exemptions to Payment of Stamp Duty:
There are certain transactions that are exempt from payment of stamp duty. For example, instruments executed
by or on behalf of the Government of Kenya are exempt from payment of stamp duty. Additionally, certain
instruments executed for charitable purposes are also exempt from payment of stamp duty.
11.1.5 Process of Paying Stamp Duty:

The Stamp Duty Act provides that stamp duty must be paid before the execution of the document. The payment
of stamp duty is made by purchasing adhesive stamps from the Kenya Revenue Authority (KRA). The stamps
must be affixed to the document in the presence of a witness.
11.1.5 Stamping out of Time:
If a document is not stamped before it is executed, it may be stamped within 30 days of its execution without
incurring a penalty. However, if the document is stamped after 30 days, a penalty of 2% per month or part of a
month is charged.
11.1.6 Refund of Stamp Duty:
The Stamp Duty Act provides for the refund of stamp duty in certain circumstances. For example, if a document
is not executed, or if the transaction does not take place, the stamp duty paid may be refunded. Additionally, if
an instrument is stamped with an incorrect amount of duty, the excess duty may be refunded.
Conclusion:
Stamp Duty is an important tax that is levied on various types of documents in Kenya. The Stamp Duty Act
provides for the calculation and payment of stamp duty, as well as exemptions and refunds. It is important for
those involved in conveyancing transactions to be aware of the provisions of the Act in order to ensure
compliance with the law
11.2 CAPITAL GAINS TAX AND CONSEQUENCES THERE OF IN VARIOUS

TRANSACTIONS
11.2.1 COMPUTATION OF CAPITAL GAINS TAX
11.2.2 PROCESS OF PAYMENT OF CAPITAL GAINS TAX
Introduction:
Capital gains tax is a tax on the profit that arises from the sale or transfer of a capital asset. In Kenya, the law that
governs the payment of capital gains tax is the Income Tax Act (Chapter 470 of the Laws of Kenya). In this
article, we will focus on the provisions of the Act as they relate to capital gains tax consequences in various
transactions, computation of capital gains tax, and the process of payment of capital gains tax in Kenya
conveyancing.
Capital Gains Tax Consequences in Various Transactions:
Capital gains tax applies to various transactions involving capital assets. Some examples of such transactions
include:
Sale of land: When a person sells land, they may be liable to pay capital gains tax on the profit that arises from
the sale.
Transfer of shares: When a person transfers shares in a company, they may be liable to pay capital gains tax on
the profit that arises from the transfer.
Sale of business assets: When a person sells assets that are used in a business, such as machinery or equipment,
they may be liable to pay capital gains tax on the profit that arises from the sale.
Computation of Capital Gains Tax:
The amount of capital gains tax payable is calculated by subtracting the cost of acquiring the asset from the sale
proceeds. The cost of acquiring the asset includes any expenses that were incurred in acquiring and improving
the asset, such as legal fees and renovation costs.
The Income Tax Act provides for various methods of calculating the cost of acquisition, depending on the type
of asset and the date of acquisition. For example, the cost of acquiring land is the purchase price, while the cost
of acquiring shares is the market value at the time of acquisition.
Once the capital gain has been calculated, it is taxed at a rate of 5% for individuals and 20% for companies.
Process of Payment of Capital Gains Tax in Kenya Conveyancing:
In Kenya conveyancing, capital gains tax is paid to the Kenya Revenue Authority (KRA). The process of
payment of capital gains tax involves the following steps:
Obtain a Tax Identification Number (TIN): Before paying capital gains tax, the seller must obtain a TIN from the
KRA.
Obtain a clearance certificate: The seller must obtain a clearance certificate from the KRA to confirm that all taxes
have been paid.
Calculate the capital gains tax: The seller must calculate the amount of capital gains tax payable based on the
sale proceeds and the cost of acquisition.
Pay the tax: The seller must pay the capital gains tax to the KRA within 30 days of the sale.
File a return: The seller must file a return with the KRA within 30 days of the sale, providing details of the sale
and the capital gains tax paid.
Conclusion:
Capital gains tax is an important tax that applies to various transactions involving capital assets. The Income Tax
Act provides for the computation of capital gains tax and the process of payment, which involves obtaining a
TIN, obtaining a clearance certificate, calculating the tax, paying the tax, and filing a return. It is important for
those involved in conveyancing transactions to be aware of the provisions of the Act in order to ensure
compliance with the law
TOPIC 10:
THE
METHODS
OF
ACQUISITIO
N OF TITLE.
12.1 COMPULSORY ACQUSITION
i. INTRODUCTION
ii. PROCESS OF COMPULSORY ACQUISITION
iii. III. VALUATION FOR COMPENSATION
I. Introduction
Compulsory acquisition, also known as eminent domain, is a legal process through which
the government acquires private property for public use without the owner's consent. In
most cases, compulsory acquisition occurs when the government needs the property for a
public project, such as building a road, airport, or other infrastructure. The government is
required to compensate the property owner for the value of the property taken. The
compensation amount must be fair and just and based on the property's market value.
In Kenya, the Constitution of Kenya, 2010, provides that the government has the power to
acquire property for public purposes through compulsory acquisition. The power of
compulsory acquisition is also provided for under the Land Act, 2012, and the Physical
Planning Act, 2019.
II. Process of Compulsory Acquisition

The process of compulsory acquisition in Kenya involves the following steps:
Identification of Property: The first step is for the government to identify the property
needed for public use. The property may be identified by the relevant government agency
or through public consultation.
Notice of Intention: The government is required to serve a notice of intention to acquire

the property to the owner, occupier, or any other person with an interest in the property.
The notice should contain the reasons for the acquisition and the proposed compensation
amount.
Objection: The property owner or any other person with an interest in the property may
object to the acquisition within thirty days from the date of the notice. The objection
should be in writing and should state the grounds for the objection.
Inquiry: If there is an objection, an inquiry will be conducted by the National Land

Commission (NLC) to determine whether the acquisition is necessary and whether the
compensation offered is fair and just.
Determination of Compensation: If the inquiry finds that the acquisition is necessary, the
NLC will determine the compensation amount. The compensation must be fair and just
and based on the market value of the property at the time of acquisition.
Payment of Compensation: Once the compensation amount has been determined, the
government is required to pay the amount to the property owner or any other person
with an interest in the property. The payment must be made within a reasonable time.
Possession of Property: After the payment of compensation, the government is entitled to

take possession of the property and use it for the intended public purpose.
III. Valuation for Compensation

Valuation for compensation is a critical aspect of the compulsory acquisition process. The
compensation amount should be fair and just and based on the market value of the
property at the time of acquisition.
12.2 ALLOCATION IV. PRE-

REQUISITES
V. ALLOCATION PROCESS
I. Introduction
Allocation is the process of assigning or distributing a particular asset or resource to a specific individual or
entity. In the context of real estate, allocation refers to the process of distributing land or property to specific
individuals or entities, usually through a formal allocation process. In Kenya, the allocation process is regulated
by various statutes and regulations, including the Land Act, 2012, and the Physical Planning Act, 2019.
II. Pre-Requisites for Allocation

Before any land or property can be allocated in Kenya, certain pre-requisites must be met. These include:
Land Availability: The land must be available for allocation. This means that the land should not be already
allocated or reserved for any other use.
Zoning and Planning: The land should be zoned for the intended use and should conform to the local planning
requirements. This ensures that the land is suitable for the intended use and that the allocation process will not
negatively impact the surrounding area.
Survey and Subdivision: The land should be surveyed and subdivided into plots. This ensures that each plot is
clearly defined and can be allocated to specific individuals or entities.
Infrastructure: The land should have adequate infrastructure, including roads, water, electricity, and sanitation
facilities. This ensures that the allocated land is habitable and suitable for the intended use.
Environmental Impact Assessment: An environmental impact assessment (EIA) should be carried out to
determine the potential impact of the allocation process on the environment. This ensures that the allocation
process is sustainable and does not harm the environment.
III. Allocation Process

The allocation process in Kenya involves the following steps:
Application: The interested individual or entity applies for the allocation of land or property. The application
should be made to the relevant government agency, usually the Ministry of Lands.
Verification: The government agency verifies the application and checks whether the applicant meets the
eligibility criteria. The eligibility criteria may include factors such as residency, citizenship, and financial status.
Valuation: The land or property is valued to determine its market value. This ensures that the allocation process
is fair and just, and the allocated land or property is of equal value.
Allocation Letter: The successful applicant is issued with an allocation letter. The allocation letter confirms that
the applicant has been allocated the land or property and outlines the terms and conditions of the allocation.
Payment: The applicant is required to pay the allocated amount within a specified period. Failure to pay the
allocated amount within the specified period may result in the cancellation of the allocation.
Transfer: Once the allocated amount has been paid, the land or property is transferred to the applicant's name.
This involves registering the transfer of the land or property with the relevant government agency, usually the
Ministry of Lands.
In conclusion, the allocation process is an essential aspect of the real estate industry in Kenya. The process must
adhere to the relevant statutes and regulations, including the Land Act, 2012, and the Physical Planning Act,
2019. The pre-requisites for allocation, including land availability, zoning and planning, survey and subdivision,
infrastructure, and environmental impact assessment, ensure that the allocated land or property is suitable for
the intended use and is sustainable. The allocation process, including application, verification, valuation,
allocation letter, payment, and transfer, ensures that the allocation is fair and just and that the allocated land or
property is of equal value
12.3 PRESCRIPTION
Prescription in Kenya conveyancing refers to the acquisition of a right to a property or land by way of
continuous and uninterrupted use of the property for a specified period. It is a legal doctrine that enables a
person who has used or occupied a piece of land or property for a long period of time to acquire a right or title
to the land or property. In Kenya, prescription is recognized and governed by various statutes and laws,
including the Limitation of Actions Act and the Land Act.
I. Limitation of Actions Act

The Limitation of Actions Act, Cap. 22, Laws of Kenya, provides the legal framework for prescription in Kenya
conveyancing. The Act sets out the period within which an action must be brought to enforce a right. Section 6
of the Act provides that an action to recover land or property shall not be brought after the expiration of twelve
years from the date when the right of action accrued. This means that if a person has been in continuous and
uninterrupted possession of a piece of land for twelve years, they can acquire the right or title to the land.
II. The Land Act

The Land Act, No. 6 of 2012, also recognizes prescription as a means of acquiring land or property rights. Section
30 of the Act provides that a person who has been in possession of land for a continuous period of 12 years can
acquire a right or title to the land. The section also provides that the person acquiring the land by prescription
must prove that they have been in possession of the land for the requisite period and that the possession has
been continuous and uninterrupted.
III. Requirements for Prescription

In Kenya conveyancing, certain requirements must be met before a person can acquire land or property rights by
prescription. These include:
Continuous and Uninterrupted Possession: The possession of the land or property must be continuous and
uninterrupted for the requisite period, which is 12 years.
Open and Notorious Possession: The possession of the land or property must be open and notorious. This means
that the possession must be visible and apparent to anyone who comes to the property.
Hostile Possession: The possession of the land or property must be hostile, meaning that it must be without the
permission of the true owner.
Exclusive Possession: The possession of the land or property must be exclusive, meaning that the person
claiming the right or title must be the only one in possession of the land or property.
Peaceful Possession: The possession of the land or property must be peaceful, meaning that it must not be
obtained through force or violence.
IV. Effect of Prescription
When a person acquires land or property rights by prescription in Kenya conveyancing, they become the legal
owner of the property. The right or title acquired by prescription is as good as any other right or title to the
property. The person who has acquired the right or title by prescription can sell, mortgage, or transfer the
property to another person.
In conclusion, prescription is a legal doctrine in Kenya conveyancing that allows a person who has used or
occupied a piece of land or property for a long period of time to acquire a right or title to the land or property.
The doctrine is recognized and governed by various statutes and laws, including the Limitation of Actions Act
and the Land Act. Certain requirements must be met before a person can acquire land or property rights by
prescription, including continuous and uninterrupted possession, open and notorious possession, hostile
possession, exclusive possession, and peaceful possession. The effect of prescription is that the person who
acquires the right or title becomes the legal owner of the property
12.4 SETTLEMENT PROGRAMMES
Settlement programmes in Kenya conveyancing refer to initiatives undertaken by the government or other
stakeholders to settle individuals or communities on land. These programmes are aimed at providing access to
land to those who may not have it and promoting land ownership, particularly for marginalized communities.
Settlement programmes are recognized and governed by various statutes and laws in Kenya, including the
Constitution of Kenya, the Land Act, the Community Land Act, and the Physical Planning Act.
I. Constitution of Kenya
The Constitution of Kenya, 2010, recognizes the right to property as a fundamental right. The Constitution
provides for the equitable distribution of land and the protection of the rights of those who have been
historically marginalized in land ownership. Article 40 of the Constitution provides that every person has the
right to own property either individually or in association with others. It also provides that land may be held,
used, or managed in accordance with the law. The Constitution also recognizes the rights of communities to own
and manage their land.
II. Land Act

The Land Act, No. 6 of 2012, provides for the management, administration, and sustainable use of land resources
in Kenya. The Act recognizes settlement programmes as a means of providing access to land to individuals and
communities who do not have it. Section 107 of the Act provides for the establishment of settlement schemes and
the procedures for the allocation of land in such schemes. The section provides for the identification and
selection of beneficiaries, the allocation of plots, and the registration of the titles to the land.
III. Community Land Act

The Community Land Act, No. 27 of 2016, provides for the recognition, protection, and registration of
community land in Kenya. The Act recognizes the rights of communities to own and manage their land and
provides for the establishment of community land management committees. The Act also recognizes settlement
programmes as a means of providing access to land to communities who do not have it. Section 110 of the Act
provides for the identification and selection of beneficiaries, the allocation of plots, and the registration of the
titles to the land.
IV. Physical Planning Act

The Physical Planning Act, No. 6 of 2019, provides for the regulation and coordination of physical planning in
Kenya. The Act recognizes settlement programmes as a means of providing access to land to individuals and
communities who do not have it. Section 44 of the Act provides for the preparation of settlement plans and the
allocation of land for settlement purposes. The section provides for the identification and selection of
beneficiaries, the allocation of plots, and the registration of the titles to the land.
V. Procedures for Settlement Programmes

Settlement programmes in Kenya conveyancing are carried out through a set of procedures that include the
identification and selection of beneficiaries, the allocation of plots, and the registration of titles to the land. These
procedures are governed by the various statutes and laws mentioned above.
The identification and selection of beneficiaries involves the identification of individuals or communities who do
not have access to land and who are in need of settlement. This is usually done through a vetting process that
involves interviews and verification of the applicants.
The allocation of plots involves the identification of suitable land for settlement and the subdivision of the land
into plots. The plots are then allocated to the beneficiaries in accordance with the criteria set out by the relevant
statutes and laws.
The registration of titles to the land involves the preparation and registration of the titles to the land in the
names of the beneficiaries. This is usually done through the relevant land registry offices in accordance with the
procedures set out in the Land Act and the Community Land Act.
In conclusion, settlement programmes in Kenya conveyancing are initiatives aimed at providing access to land
to individuals and communities who do not have it
12.5. LAND ACQUISITION.

Land acquisition is an important aspect of conveyancing transactions in Kenya. It refers to the process of
acquiring land or property through various means, including compulsory acquisition, purchase, or lease. The
process of land acquisition is governed by various statutes and legal provisions, including the Constitution
of Kenya, the Land Act, the Physical Planning Act, and the Land Acquisition Act.
I. Constitution of Kenya
The Constitution of Kenya, 2010, provides for the protection of property rights and the equitable distribution
of land. It recognizes the right of every person to own property individually or in association with others,
and the right to acquire and own property without discrimination. Article 40 of the Constitution provides for
the protection of property rights and the establishment of mechanisms for the equitable distribution of land.
II. Land Act

The Land Act, No. 6 of 2012, governs the management and administration of land resources in Kenya. The
Act provides for various methods of land acquisition, including compulsory acquisition, purchase, and lease.
Section 107 of the Act provides for the establishment of settlement schemes and the procedures for the
allocation of land in such schemes. Section 109 of the Act provides for the compulsory acquisition of land for
public purposes, subject to the payment of just compensation to the affected persons.
III. Physical Planning Act

The Physical Planning Act, No. 6 of 2019, provides for the regulation and coordination of physical planning
in Kenya. The Act provides for the preparation and implementation of physical development plans, which
include the identification of land for public purposes. Section 44 of the Act provides for the acquisition of
land for public purposes, subject to the payment of just compensation to the affected persons.
IV. Land Acquisition Act

The Land Acquisition Act, Cap. 295, provides for the compulsory acquisition of land for public purposes. The
Act sets out the procedures for the acquisition of land, including the notification of the affected persons, the
assessment of compensation, and the procedures for the determination of compensation in case of disputes.
Section 7 of the Act provides for the establishment of a Land Acquisition Advisory Committee, which is
responsible for advising the government on matters relating to land acquisition.
V. Procedures for Land Acquisition

The procedures for land acquisition in Kenya are governed by various statutes and legal provisions. The
process usually starts with the identification of land for public purposes, which is usually done through the
preparation and implementation of physical development plans. Once the land has been identified, the
government or the relevant authority may initiate the process of land acquisition.
The process of land acquisition usually involves the notification of the affected persons, which includes the
landowners and any other persons with an interest in the land. The notification should be done in writing
and should provide details of the land to be acquired, the purpose of the acquisition, and the proposed
compensation.
The assessment of compensation is usually done by a valuer appointed by the government or the relevant
authority. The valuer is responsible for determining the value of the land to be acquired and any other losses
that may be incurred as a result of the acquisition.
The affected persons have a right to challenge the valuation and the proposed compensation. In case of
disputes, the Land Acquisition Advisory Committee is responsible for determining the compensation to be
paid.
Once the compensation has been agreed upon, the government or the relevant authority may proceed to
acquire the land. The title to the land is then transferred to the government or the relevant authority, and the
compensation is paid to the affected persons.
In conclusion, land acquisition is an important aspect of conveyancing transactions in Kenya. The process is
governed by various statutes and legal provisions, including the Constitution of Kenya, the Land Act, the
Physical Planning Act, and the Land Acquisition Act
TOPIC 11:
INSTITUTIONAL
FRAMEWORK
FOR
LAND
ADMINISTRATION
12.1 Departments of the Ministry of Lands and their Roles

12.2.1 Administration and Planning
12.2.2 Physical Planning
12.2.3 Land Adjudication and Settlement
12.2.4 Surveys
12.2.5 Lands- Divisions of Lands
12.2.5.1 Land Administration Division
12.2..5.2 Land Valuation Division
12.2.5.3 Land Registration Division
The Ministry of Lands in Kenya is responsible for the management, administration, and planning of public land
in the country. It is also responsible for the adjudication and settlement of land disputes, surveying and
mapping, and maintaining land records. The ministry is divided into several departments, each with its unique
roles and responsibilities. In this article, we will discuss the various departments of the Ministry of Lands and
their functions.
Administration and Planning

The Administration and Planning department is responsible for the formulation and implementation of land
policies and laws. It also coordinates the ministry's activities, manages the ministry's budget, and ensures
compliance with government regulations. The department is responsible for the development and
implementation of land-use plans, zoning regulations, and other policies related to land use. Additionally, the
department is responsible for coordinating with other government agencies, stakeholders, and the public to
promote efficient and effective land administration and management.
Physical Planning
The Physical Planning department is responsible for the management and development of physical
infrastructure in the country. It is responsible for preparing physical development plans and zoning regulations
to guide the use and development of land in the country. The department is also responsible for assessing the
suitability of land for different uses, such as residential, commercial, or industrial purposes.
Land Adjudication and Settlement

The Land Adjudication and Settlement department are responsible for resolving land disputes and facilitating
the settlement of land claims. The department is responsible for conducting inquiries, hearings, and other
procedures to resolve disputes and ensure that land is allocated fairly and equitably. Additionally, the
department works to facilitate the settlement of land claims by providing assistance and support to individuals
and communities seeking to secure their land rights.
Surveys
The Survey department is responsible for conducting surveys to determine the boundaries of land and provide
accurate measurements of land parcels. The department is responsible for maintaining and updating land
records, including survey maps, and providing survey information to landowners, government agencies, and
the public. The department is also responsible for the demarcation of boundaries between private and public
land.
Lands- Divisions of Lands

The Lands Division is divided into three departments, which are responsible for different aspects of land
administration and management.
a. Land Administration Division

The Land Administration division is responsible for the registration and management of land transactions, such
as the transfer of land ownership, leases, and mortgages. The department is responsible for maintaining land
records, issuing land titles and certificates, and providing information on land transactions.
b. Land Valuation Division

The Land Valuation division is responsible for the valuation of land and property in the country. The
department is responsible for determining the market value of land and property for taxation, compensation,
and other purposes. The department also provides advice and guidance on property valuation to government
agencies, private individuals, and businesses.
c. Land Registration Division

The Land Registration division is responsible for the registration of land titles, leases, mortgages, and other land
transactions. The department is responsible for ensuring the accuracy and completeness of land records and
providing information on land ownership and title. The department also provides advice and guidance on land
registration and assists individuals and businesses in registering their land transactions.
In conveyancing, Kenya's land law requires that all land transactions must be registered with the Ministry of
Lands. The registration process involves the preparation and execution of various legal documents, including
transfer deeds, leases, and mortgages. These documents must be prepared by qualified legal practitioners and
submitted to the Land Registration division for registration. The Land Registration division is responsible for
ensuring that all legal requirements are met, and the transaction is registered in accordance with the law.
In conclusion, the Ministry of Lands plays a crucial role in the management and administration of land in Kenya.
The various departments of the ministry work together to ensure that land is allocated fairly and equitably
12.3 The functions of the Registrar of Lands
The Registrar of Lands in Kenya is a government official who is responsible for maintaining accurate records of
all land transactions and interests in the country. The functions of the Registrar of Lands are outlined in the
Land Registration Act, 2012 (Act No. 3 of 2012), which came into effect on 2nd May 2012. The Act sets out the
roles and responsibilities of the Registrar of Lands in Kenya in sections 5 through 13.
Section 5 of the Act establishes the office of the Registrar of Lands and sets out its functions. The Registrar of
Lands is tasked with the responsibility of ensuring that all land transactions are properly registered and
recorded in accordance with the law. This includes maintaining an accurate and up-to-date land register, which
contains details of all landowners, their interests, and any encumbrances on the land.
Section 6 of the Act outlines the specific functions of the Registrar of Lands. These functions include receiving,
registering, and storing all land documents and records submitted for registration. The Registrar of Lands is also
responsible for maintaining and updating the land register, issuing land titles, and conducting searches of the
land register upon request.
Under section 7, the Registrar of Lands is required to maintain and manage the National Land Information
System (NLIS), which is a computerized database containing information about all land transactions and
interests in Kenya. This system is designed to improve the efficiency and accuracy of land registration and
management in the country.
Section 8 of the Act empowers the Registrar of Lands to carry out inspections and audits of land records and
transactions to ensure compliance with the law. This includes verifying the authenticity of land documents,
identifying fraudulent transactions, and investigating any irregularities or disputes that arise.
Section 9 of the Act establishes the powers of the Registrar of Lands in relation to the rectification of errors and
omissions in land documents and records. The Registrar of Lands is authorized to correct any errors or
omissions that are discovered in the course of land registration or management.
Under section 10, the Registrar of Lands is required to maintain a public office where members of the public can
access land records and documents. The Registrar of Lands is also required to provide copies of land records
and documents to interested parties upon request, subject to the payment of a prescribed fee.
Section 11 of the Act sets out the powers of the Registrar of Lands in relation to the cancellation or amendment
of land titles. The Registrar of Lands is authorized to cancel or amend land titles in cases where the title was
obtained fraudulently, where there is a dispute over the ownership of the land, or where there are errors or
omissions in the land record.
Finally, section 13 of the Act empowers the Registrar of Lands to delegate any of his or her functions to other
officers within the Land Registration Department, subject to any conditions or limitations that may be
prescribed. This delegation of functions is designed to ensure the efficient and effective management of land
records and transactions in Kenya.
In conclusion, the Registrar of Lands in Kenya plays a crucial role in the management and regulation of land
transactions and interests in the country. The Land Registration Act, 2012 outlines the functions and
responsibilities of the Registrar of Lands, which include maintaining accurate records of land transactions,
managing the National Land Information System, carrying out inspections and audits, rectifying errors and
omissions, providing public access to land records, and canceling or amending land titles where necessary.
These functions are essential for ensuring the efficient and effective management of land in Kenya, and for
protecting the interests of all stakeholders in the land sector
Hi
TOPIC 12:
CONTEMPOR
ARY ISSUES &
REFORMS IN
CONVEYANC
ING
THE NATIONAL LAND COMMISSION
13.1 CONVERSION OF PUBLIC LAND TO COMMUNITY OR PRIVATE LAND
13.2 PUBLIC AUCTION
13.3 APPLICATION CONFINED TO A TARGETED GROUP OF PERSONS OR GROUPS
13.4 PUBLIC NOTICE OF TENDERS
13.5 PUBLIC DRAWING OF LOTS
13.6 PUBLIC REQUEST FOR PROPOSALS
13.7 POWER OF NLC TO CREATE PUBLIC RIGHTS OF WAY
CASE LAW
RE: THE NATIONAL LAND COMMISSION (2015) EKLR
The National Land Commission (NLC) is a constitutional body established under Article 67 of the Constitution
of Kenya 2010, with the mandate to manage public land on behalf of the national and county governments. The
Commission is also responsible for investigating and resolving disputes related to land, and for advising the
government on matters related to land management and administration. In this discussion, we will refer to
specific sections in applicable statutes related to the NLC and its powers in conveyancing Kenya.
13.1 CONVERSION OF PUBLIC LAND TO COMMUNITY OR PRIVATE LAND
Section 5 of the Land Act, 2012 provides that public land may be converted to community land or private land
under certain conditions. This conversion can only be done by the National Land Commission with the approval
of the relevant county government. The process of conversion must be conducted in accordance with the
principles of public participation, transparency, and accountability. The Commission must give public notice of
its intention to convert the land and invite objections or comments from the public. The Commission must also
consider the views of any person or group of persons likely to be affected by the conversion.
13.2 PUBLIC AUCTION

Section 93 of the Land Act, 2012 provides that the National Land Commission may sell or dispose of public land
through public auction. The Commission must follow the procedure set out in the Act for disposing of public
land, which includes publishing a notice of the proposed sale in the Gazette and in at least two newspapers of
national circulation. The notice must specify the date, time, and place of the auction, as well as the terms and
conditions of the sale.
13.3 APPLICATION CONFINED TO A TARGETED GROUP OF PERSONS OR GROUPS
Section 15 of the Community Land Act, 2016 provides that the National Land Commission may grant leases,
easements, and other rights over community land to a targeted group of persons or groups. The Commission
must consult with the relevant community and obtain its consent before granting any such rights. The
Commission must also ensure that the rights granted are consistent with the community's customs and
traditions.
13.4 PUBLIC NOTICE OF TENDERS
Section 108 of the Land Act, 2012 provides that the National Land Commission must invite tenders for the sale
or lease of public land. The Commission must publish a notice of the tender in the Gazette and in at least two
newspapers of national circulation. The notice must specify the terms and conditions of the tender, including the
reserve price, the period of lease, and any other conditions of the tender.
13.5 PUBLIC DRAWING OF LOTS
Section 109 of the Land Act, 2012 provides that the National Land Commission may allocate public land through
a public drawing of lots. The Commission must publish a notice of the drawing of lots in the Gazette and in at
least two newspapers of national circulation. The notice must specify the date, time, and place of the drawing of
lots, as well as the terms and conditions of the allocation.
13.6 PUBLIC REQUEST FOR PROPOSALS
Section 110 of the Land Act, 2012 provides that the National Land Commission may invite proposals for the
development of public land. The Commission must publish a notice of the request for proposals in the Gazette
and in at least two newspapers of national circulation. The notice must specify the terms and conditions of the
request for proposals, including the criteria for selecting the successful proposal.
13.7 POWER OF NLC TO CREATE PUBLIC RIGHTS OF WAY
Section 12 of the Land Act, 2012 provides that the National Land Commission may create public rights of way
over private land where it is necessary for the public to access public amenities or facilities. The Commission
must notify the owner of the private land in writing of its intention to create the public right of way. The owner
may object to the creation of the public right of way within 21 days of receiving the notice. If the owner objects,
the matter shall be resolved through mediation or arbitration. If mediation or arbitration fails, the matter may be
referred to court for resolution.
In conclusion, the National Land Commission plays a critical role in the management and administration of
public land in Kenya. The Commission has wide-ranging powers in the disposal of public land, including the
conversion of public land to community or private land, public auction, allocation through public drawing of
lots, and the creation of public rights of way. These powers are exercised in accordance with the principles of
public participation, transparency, and accountability, as set out in the relevant statutes. It is important for all
stakeholders in land management and administration to be familiar with these laws and regulations to ensure
that the process is fair and equitable for all parties involved
ENVIROMENTAL MANAGEMENT
14.1 ESTABLISHMENT, POWERS AND FUNCTIONS OF NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY
(NEMA)
14.2 ENVIRONMENTAL IMPACT ASSESSMENT LICENCE
14.3 ORDERS ISSUED TO FACILITATE THE CONSERVATION AND ENHANCEMENT OF THE
ENVIRONMENT
14.4 ENVIRONMENTAL AUDIT AND MONITORING
Environmental management is an important aspect of land management and administration in Kenya. The
government has put in place laws and regulations to guide the management and conservation of the
environment. In this discussion, we will refer to specific sections in applicable statutes related to environmental
management in Kenya.
14.1 ESTABLISHMENT, POWERS AND FUNCTIONS OF NATIONAL ENVIRONMENT MANAGEMENT

AUTHORITY (NEMA)
The National Environment Management Authority (NEMA) is a state corporation established under the
Environmental Management and Coordination Act (EMCA) of 1999. The Authority is responsible for the
management and conservation of the environment in Kenya. Section 8 of the EMCA outlines the powers and
functions of NEMA, which include:
Developing policies, plans, and programs for the management and conservation of the environment.
Coordinating and enforcing environmental laws and regulations in Kenya.
Conducting research and providing information on environmental issues.
Developing and implementing environmental impact assessment procedures.
Advising the government on matters related to environmental management.
NEMA also has the power to issue licenses and permits for various activities that may impact the environment,
such as waste management, air pollution, and water use.
14.2 ENVIRONMENTAL IMPACT ASSESSMENT LICENCE
The Environmental Impact Assessment (EIA) is a process that assesses the potential environmental impacts of a
proposed project or activity before it is implemented. The EIA process is governed by the Environmental Impact
Assessment and Audit Regulations of 2003, which are issued under the EMCA. The regulations require that any
project or activity that may have a significant impact on the environment must undergo an EIA before it can be
approved.
Section 58 of the EMCA empowers NEMA to issue environmental impact assessment licenses for proposed
projects or activities. The license is a legal requirement for any project that may have a significant impact on the
environment. To obtain an EIA license, an applicant must submit an Environmental Impact Assessment Study
Report to NEMA, which outlines the potential environmental impacts of the proposed project or activity and the
measures that will be put in place to mitigate those impacts.
14.3 ORDERS ISSUED TO FACILITATE THE CONSERVATION AND ENHANCEMENT OF THE

ENVIRONMENT
Section 107 of the EMCA provides NEMA with the power to issue orders to facilitate the conservation and
enhancement of the environment. NEMA may issue an order to any person or entity that is involved in an
activity that may have a negative impact on the environment. The order may require the person or entity to take
certain measures to mitigate the environmental impact of their activities, such as installing pollution control
measures or carrying out environmental restoration works.
NEMA may also issue a stop order to any person or entity that is carrying out an activity that may have a
significant impact on the environment without the required environmental licenses or permits. The stop order
requires the person or entity to immediately stop the activity until they obtain the necessary licenses or permits.
14.4 ENVIRONMENTAL AUDIT AND MONITORING
Section 63 of the EMCA requires that all projects or activities that have been issued with an environmental
impact assessment license must undergo environmental monitoring and audit. The environmental monitoring
and audit process is designed to ensure that the project or activity is carried out in accordance with the
conditions set out in the environmental impact assessment license and that any environmental impacts are
monitored and mitigated.
NEMA is responsible for carrying out environmental audits and monitoring of projects and activities that have
been issued with an environmental impact assessment license. The Authority may also require the project
proponent to carry out monitoring and audit and submit regular reports to NEMA.
In conclusion, environmental management is an important aspect of land management and administration in

Kenya
CONTEMPORARY ISSUES & REFORMS IN CONVEYANCING
15.1. TITLE DOCUMENTS (ISSUANCE, LOSS AND REPLACEMENT): SEC 24 – 26, 33 LRA
15.2. RECTIFICATION OF TITLE
15.3. EXTENSION OF LEASES AND CHANGE OF USER.
15.4. MIGRATION OF TITLE, REGISTERS AND REGISTRIES
15.5. ELECTRONIC CONVEYANCING
15.6. ARDHI SASA AND NLIMS.
Conveyancing is the process of transferring property ownership from one party to another. In Kenya, the
process of conveyancing is governed by various laws and regulations. In recent years, there have been several
contemporary issues and reforms in conveyancing. In this discussion, we will refer to specific sections in
applicable statutes related to contemporary issues and reforms in conveyancing in Kenya.
15.1 TITLE DOCUMENTS (ISSUANCE, LOSS AND REPLACEMENT): SEC 24 – 26, 33 LRA
The Land Registration Act (LRA) of 2012 provides for the issuance, loss, and replacement of title documents.
Sections 24 to 26 of the LRA outline the process of applying for a certificate of title. The applicant must provide
evidence of ownership and pay the applicable fees. Once the application is processed, the Registrar of Titles will
issue the certificate of title.
If a certificate of title is lost or destroyed, the owner or their agent may apply for a duplicate certificate of title.
Section 33 of the LRA outlines the process of applying for a duplicate certificate of title. The applicant must
provide evidence of ownership and pay the applicable fees. The Registrar of Titles may then issue a duplicate
certificate of title.
15.2 RECTIFICATION OF TITLE
Sometimes, errors may occur in a certificate of title. The Land Registration Act provides for the rectification of
title documents. Section 79 of the LRA allows the Registrar of Titles to rectify any error or omission in a
certificate of title. The Registrar may also rectify any defect in a certificate of title that affects the validity of the
title. However, the rectification must be made in accordance with the law and after giving notice to all affected
parties.
15.3 EXTENSION OF LEASES AND CHANGE OF USER
The Landlord and Tenant (Amendment) Act of 2011 introduced changes to the process of extending leases and
changing land use. The Act provides for the extension of leases for up to 99 years. The process of extending a
lease involves negotiating with the landlord and obtaining consent from the relevant authorities.
The change of land use also requires obtaining consent from the relevant authorities. The process involves
submitting an application to the county government, which will consider the application and issue a decision.
15.4 MIGRATION OF TITLE, REGISTERS AND REGISTRIES
The government of Kenya has been undertaking a process of migrating land titles, registers, and registries to a
digital platform. The process involves the creation of a National Land Information Management System
(NLIMS). The NLIMS is designed to improve the efficiency of land administration and reduce the incidence of
fraud and corruption.
The process of migrating land titles, registers, and registries to the NLIMS involves the digitization of existing
records and the creation of new digital records. The process is being carried out in stages, with different regions
of the country being migrated at different times.
15.5 ELECTRONIC CONVEYANCING
The government of Kenya has also introduced electronic conveyancing as part of the process of migrating land
titles, registers, and registries to the NLIMS. Electronic conveyancing allows for the electronic transfer of
property ownership, which is faster and more efficient than the traditional paper-based process.
The process of electronic conveyancing involves the use of digital signatures and encryption to ensure the
security of the transaction. The government has also introduced a platform called Ardhi Sasa, which allows for
the electronic submission of conveyancing documents.
15.6 ARDHI SASA AND NLIMS
Ardhi Sasa is an online platform that allows for the electronic submission of conveyancing documents. The
platform is part of the government's efforts to improve the efficiency of land administration and reduce the
incidence of fraud and corruption.
NLIMS is a digital platform that is designed to improve the efficiency of land administration by providing a
centralized and comprehensive database of land records. NLIMS will store all land records, including title
deeds, leases, and conveyancing documents.
NLIMS will also provide access to land records to all relevant government agencies, including the National Land
Commission, the Ministry of Lands, and the county governments. This will improve the coordination of land
administration and reduce the time and resources required to access land records.
Overall, the introduction of contemporary issues and reforms in conveyancing in Kenya is aimed at improving
the efficiency and transparency of land administration. The migration to digital platforms such as Ardhi Sasa
and NLIMS is expected to reduce the incidence of fraud and corruption in the land sector. The extension of
leases and change of land use will also provide greater flexibility to landowners and promote investment in the
real estate sector
CONVEYANCING LAW & PRACTICE

INTRODUCTION
Conveyancing has been defined as the “process by which legal title to property is transferred “(Abbey &
Richards, 2000, 18).The Council of Licensed Conveyancers in England and Wales on the other hand
defines Conveyancing as “the legal process of transferring a house or flat, commercial property orpiece of
land from one owner to another”. Both definitions may however be limiting as Conveyancing involves
more than just drafting and registering documents. Conveyancing may also involve a simple modification
of title or even an involuntary transfer of an interest e.g. sale by a mortgagee.It may thus be more
appropriate to define Conveyancing as the art or science of conveying or effecting the transfer of legal
property or modifying interest in relation to property by means of a (written) document. The three
critical ingredients are thus the process, the legal title and the transfer or modification.
The process is what is basically referred to as Conveyancing practice or protocol – which refers to the
branch of advocacy in real property transactions or the procedural side of the coin of which the law of
property is the substantive side. The legal title or interest to be transferred or modified must be legal in
the strictest sense of the word. The transferee must be seized of a legal title. Consequently, protocol or
process will demand that a Conveyancer investigates and ascertains that the title to be transferred or
modified is legal.
“Conveyance” describes the document used to effect the conveyancing, and “Conveyancer” describes the
qualified professional or specialist lawyer retained by the parties to a transaction to deal with the paper
work and finances. His role is to represent the buyer or seller or the mortgagor. He must however be
qualified in line with the decision of the Court of Appeal in the unreported case of National bank of
Kenya Ltd Vs Wilson Ndolo Ayah & Another (eKLR 2009).
National Bank of Kenya Ltd v Wilson Ndola Ayah [2009] eKLR

In this suit the respondent prayed for, among other relief’s, a declaration that a charge and Deed of
Guarantee, both in favour of the appellant, dated 23 rd July 1990 and 17th October, 1990, respectively
were null and void ab initio, and that the sums of money they purportedly secured were irrecoverable.
Both documents were executed by the respondent for the benefit of a company known as Bungu
Investments Ltd, and were drawn by one V. Nyamodi, advocate.
At the trial, the Court found as a fact that on the respective dates the two documents were drawn, V.
Nyamodi did not hold a current Advocates Practicing Certificate, and was therefore not qualified to draw
those documents in view of the provisions of section 34 of the Advocates Act, Cap 16 of the Laws of
Kenya.
Section 34 provides that No unqualified person shall, either directly or indirectly, take instructions or
draw or prepare any document or instrument—
(a) Relating to the conveyancing of property; or
(b) For, or in relation to, the formation of any limited liability company, whether private or public;
or
(c) For, or in relation to, an agreement of partnership or the dissolution thereof; or
(d) For the purpose of filing or opposing a grant of probate or letters of administration; or
(e) For which a fee is prescribed by any order made by the Chief Justice under section 44; or
(f) relating to any other legal proceedings; nor shall any such person accept or receive,
directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the
drawing or preparation of any such document or instrument: Provided that this subsection
shall not apply to—
(i) any public officer drawing or preparing documents or instruments in the course of his
duty; or
(ii) any person employed by an advocate and acting within the scope of that
employment; or
(iii) Any person employed merely to engross any document or instrument.
(2) Any money received by an unqualified person in contravention of this section may be
recovered by the person by whom the same was paid as a civil debt recoverable summarily.
(3)Any person who contravenes subsection (1) shall be guilty of an offence.
(4) This section shall not apply to—
(a) A will or other testamentary instrument; or
(b) A transfer of stock or shares containing no trust or limitation thereof.
Following the trial court’s findings as aforesaid, the court concluded that the instrument of charge and
deed of Guarantee aforesaid were null and void ab initio, with the result that the money they secured
which had grown from the initial figure at Kshs. 10 million to Kshs. 57,308,137/50 was irrecoverable. The
court gave judgement in terms and thus provoked an appeal.
Mrs. V.Nyamodi did not hold a practicing certificate as at the date she drew the two documents. She was
qualified as an advocate having successfully gone through law School. However, qualifying as an
advocate is quite different from qualifying to practice as an advocate.
Neither the Advocates Act nor any other written law makes provision with regard to the validity or
otherwise of such documents. The Stamp Duty Act, Cap 480 Laws of Kenya, unlike the Advocates Act,
makes provision, in section 19, making an unstamped document inadmissible in evidence. The
Legislature, we think, not only made the document unregistrable but also made the document invalid for
any other purpose before stamping.
Section 9 makes provision for qualifications for practicing as an advocate, and the qualifications include
having in force a current practicing certificate. No person shall be qualified to act as an advocate unless—
(a) He has been admitted as an advocate; and
(b) His name is for the time being on the Roll; and
(c) He has in force a practicing certificate; and for the purpose of this Act a practising certificate shall be
deemed not to be in force at any time while he is suspended by virtue of section 27 or by an order under
section 60 (4).
The Court of Appeal held that:

It is also noteworthy that the Advocates Act itself makes provision for the recovery of the fees paid to
such an advocate. So the innocent party is reasonably covered, although in our view provisions similar to
section 19 of the Stamp Duty Act should have been included in the Advocates Act to remove any doubt
as to the validity of documents drawn by unqualified advocates. It is public policy that courts should not
aid in the perpetuation of illegalities. Invalidating documents drawn by such advocates we come to the
conclusion that will discourage excuses being given for justifying the illegality.
A failure to invalidate the act by an unqualified advocate is likely to provide an incentive to repeat the
illegal Act. For that reason alone the charge and instrument of guarantee in this matter are invalid, and
we so hold.
GenerallyConveyancers duties are wide and varied and are not limited to merely drafting the
conveyance and registering the same.
The duties include:
 Advising clients on buying and selling process + effect of transferring an interest in land
 Investigating title
 Drafting the K with sale details, offers, leases, transfer
 Liasing with lenders, estate agents, Advocates, etc
 Paying taxes e.g. Stamp duty, land rent, VAT, CGT, Rates
 Keeping records of payments and finally preparing a completion statement
 Perfecting the documentation including proper execution, completion and registration
DUTIES OF ADVOCATES IN CONVEYANCING TRANSACTIONS

Generally- the role of a conveyancer is to represent the parties. Read S 34 (1) (a)of the Advocates Act-
no unqualified person shall either directly or indirectly take instructions, draw or prepare any document or
instrument relating to the conveyancing of property.
Vendor’s Advocate
Obtain information on:-
Full names of the parties, full particulars of the property, the price, whether any deposit is required,
details of encumbrances (if any), whether the property is vacant, expected date of completion, prepare
the sale agreement, obtain original title document from vendor, approve transfer/conveyance, procure
execution of transfer/conveyance, receive and account for the proceeds of the sale to vendor., obtain
rates, rent clearances, consents where required, obtain discharge of charge/reconveyances.
Purchaser’s Advocate
Obtain information on:-finances taxes and legal costs and expenses of the conveyance, scrutinizing of
title documents, investigation of title, approving sale agreement, preparation of transfer/conveyance and
engrossing the same, attending to execution of the conveyance or transfer where necessary, stamping
and lodging of documents where necessary, obtaining and paying the purchase price to the vendor’s
advocates.
The worst mistake a practicing conveyancer can make is to fail to spot something fraudulent. A
conveyancer must not be negligent. Attestation of signatures without verifying could constitute
negligence. The need to verify if the practitioner on the other side is qualified is really important. So are
searches at government land registries.
A thorough understanding of the key conveyancing protocols is also important. (E.g. where advocate for
the buyer calls for original title documents and clearances without offering cheque for purchase SUM to
the sellers advocate or ensuring that requisite undertakings are given by the buyer's financers.)
An understanding of the Law Society Conditions of sale, current practice notes and guidelines is also
important.
Conveyancing practitioners also have a duty of confidentiality to their clients. There is also the obligation
to act in the best interests of the client. There is need to verify a client's identity before commencing any
transaction particularly if the client is new or unknown to the advocate.
There is also need to ensure that there are no conflicts of interest and also to ensure one has proper
instructions from the clients. Sometimes it may be necessary to confirm your instructions in writing at
each stage of the transaction and especially just before an exchange of money or documents. If any one
writes to confirm instructions there can be no dispute at a later stage. It is also important to keep full and
detailed attendance notes record telephone conversations with the client as well as meetings in the office
or outside the office with the client. Make diary entries of important dates such as completion dates or
search priority records.
Reflection:What skills and knowledge will one need as a conveyancer?
The process of transfer or modification of interest must be by way of a written document. This is a
statutory requirement as the transfer or modification is deemed only to be complete once registration has
been effected as demanded by the relevant statute. It is noteworthy that the transfer or modification
can be to oneself [cf. Assents and transmissions].
Can an advocate act for both parties?bu6

General principle is that one should avoid acting for both vendor and purchaser where there is a conflict
of interest or where such a conflict is likely to arise. This view has been restated by the court in the case
ofKing woolen Mills and another v. Kaplan and Stratton Advocates6
6 Civ. App. No.55/93

In this case, the firm named Kaplan and Stratton had acted for both the borrower and the lender in a
borrowing transaction. The firm had prepared all the relevant documents, including the security
documents.
Subsequently, the borrower had defaulted on repayment and had questioned the validity of the security
documents. Subsequently, Kaplan and Stratton 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 Kaplan and
Stratton Advocates were 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.It is thus evident that an advocate should not purport to act for a client during the trial
process where a conflict of interest exists or is likely to arise.
Both parties should consent.
To appreciate conveyancing protocols better one ought to be familiar with the other branches of law
dealing with real property [Land Law], Obligations [Contract law] and remedies/restitution [equity]. An
appreciation of these branches of the law is thus necessary as advice to client will run and cross through
literally all of them in any ordinary conveyancing transaction.
[Reflection: what is the relationship of the other branches of law in particular the law of contract, the law
of torts, the law of equity, the law of real property to conveyancing law and practice?]
A Conveyancer must however not only be knowledgeable but also ethical and defensive.
See: JumaMuchemi V WaweruGatonye HCCC No.853 of 2002 NBI
Momanyi V Hatimy 2003 KLR 545
HISTORY
Conveyancing law in Kenya, like other branches of law has drawn its history mainly from English Law. Up
till 1535 the English medium of transferring an interest in land was vide the primitive method of
surrendering to the Lord of Manor the subject parcel of land and his Lordship in turn granted the same
to the transferee’s nominee. The earliest and most important form of conveyance however was the
feoffment. This involved no formalities save in the form of a ceremony known as livery of seisin
(delivery of possession). The feoffment was an assurance note made by the feoffor (owner of land) that
he had given his right over an estate to the feofee. The assurance note was accompanied with a formal
public delivery of possession in the presence of witnesses mainly feudal lords. The law then also
recognized facts of leases, assignments, exchanges and partitions. [Note the enactments of 1535 Statute
of Uses and 1536 Statute of Enrolments, the 1677 Statute of Frauds which introduced the requirements
of writing, execution and attestation, the Real Property Act 1845, Land Transfer Act 1875, Vendors &
Purchasers Act 1874 and finally the most important of them all the 1925 Law of Property Act which like
the Registered Land Act Cap 300 Laws of Kenya was intended to simplify conveyancing.The 1925 statute
established a formal register and also introduced state indemnity to those deprived of their land or title.
Reflection: The conveyancing instrument to be drafted depended on the interest to be transferred and
the statutes played no role:true or false?
The history of conveyancing in Kenya can be traced to the turn of the 19 th Century. Like most laws, the
relevant statutes were also transplanted the last being the Registered Land Act in 1963 which was an
even imitation of the Law of Property Act 1925 (U.K).
The first relevant conveyancing statute enacted in Kenya was the 1901 Registration of Documents Act
(RDA). Section 4 of the Act requires/d that documents conferring property interest be registered within
the month of its making to ensure its availability in evidence. Registration of a transaction under the RDA
guarantees no title but is merely evidence of the occurrence of a transaction. Under the RDA certain
conveyancing documents are still registered to give efficacy to some conveyancing transactions. These
documents include; Trust Deeds, Powers of Attorney and Building Plans. Next was the Land Titles Act
1908 (LTA) which was intended to help deal with the haphazard “deserted” parcels at the Coastal strip of
the country. The LTA also guarantees no title. In 1915 the Government Lands Act (GLA) was enacted to
deal with conveyancing and land titles in the interior hinterland. It introduced a more systematic
approach to registration and provided for Deed Plans for all parcels of land to the registered. The title
under the GLA was usually the last Indenture of Conveyance (Freeholds) or Assignment
(Leaseholds).In 1920 the Registration of Titles Act (RTA) was enacted. It was based on the Australian
Torrens system as to systematic certainty of title. It provided for registration of and guarantee of titles.
It attempted to make conveyancing simple by introducing statutory conveyancing form albeit not
mandatory. The title document under the RTA is either a Grant or Certificate of Title or a
Lease.
The Registered Land Act (RLA) enacted in 1963 tried to “modernize” conveyancing. The Act borrowed
heavily from the 1925 English Law of Property Act. Unlike the RTA, the RLA made the use of statutory
conveyancing forms mandatory(S.108). Thetitle document under the RLA was a Title Deed/Land
Certificate (for absolute proprietorship) or Certificate of Lease (for leaseholds) or a Certificate of Sectional
Property if it is a property under the Sectional Properties Act. Both were issued at the request of the
registered proprietor and upon payment of the requisite fees. The Land Registration Act of 2012 was
later enacted to repeal the RLA LTA RTA GLA and ITPA.
Reflection: what is the Torrens System? Of what relevance is it today nearly 150 years since a non-
lawyer in Sir Robert Torrens cropped up with it in Australia?
FORMALITY OF WRITING IN CONVEYANCING

One cannot buy land the way one would buy a newspaper or a loaf of bread. The contract must be in
writing executed by both parties and attested. This is a mandatory statutory requirement. 1Section 3(3) of
the of the Law Contract Act provide that:
(3) No suit shall be brought upon a contract for the disposition of an interest in land unless-
(a) the contract upon which the suit is founded-
(i) is in writing. (ii) is signed by all the parties thereto; and
(b) the signature of each party signing has been attested by a witness who is present when the
contract was signed by such party:
Provided that this subsection shall not apply to a contract made in the course of a public auction by
an auctioneer within the meaning of the Auctioneers Act, nor shall anything in it affect the creation
of a resulting, implied or constructive trust.
(4) subsection (3) shall not apply to a contract made in the course of a public auction by a licensed
auctioneer within the meaning of the Auctioneers Act, 1996 nor shall anything in that subsection
affect the creation or operation of a resulting, implied or a constructive trust.
Under Section 44(1) of the LRA every instrument effecting any disposition under the Act shall be
executed by each of the parties consenting to it, in accordance with the provisions of this section. And
this is by of appending a person’s signature on it or affixing the thumbprint or other mark as evidence of
personal acceptance of that instrument.
The formality of writing serves three purposes: Evidentiary, Protective and Forensic. The formality of
writing performs the forensic (of or used in court of law) function in providing simple yet conclusive
evidence of the fact of agreement. The Statute of Frauds 1677 expressly provided that the
requirement of writing was intended to guard against the fraud.
Formality of writing also performs a useful evidentiary function in encouraging precision and
recording the result for posterity. Writing helps to avoid disputes as to what interest has been or is
intended to be conveyed. Remember too that land can generate an array of interests from its original
form in the freehold estate.
1 Section 3 of Law of Contract Act Cap 23 Laws of Kenya

Thirdly, it is argued2 that the formality of writing performs the protective function of giving parties a
chance to reflect and think on the deal before executing a binding contract that they may wish so shortly
before the ink is dry to renege on. It is stated that if the agreement was to be oral there would be no
time for reflection on the deal per se. This function has been reinforced further by the requirement of
“independent legal advise” to be given by a qualified conveyance.Under The Evidence Act there are some
agreements that must be in writing.
Reflection: Are these arguments conclusive?e.g.has writing gotten rid of fraud in conveyancing and how
often do we make sensible decisions orally?]
Formality of Registration in Conveyancing

Conveyancing is complete only once registration is effected. Registration is the keeping of records of
land transactions in the Lands Register. It involves registration of both the title and as well as the
interest. What is registered is usually the title or ownership to land and any instrument dealing with land
or the disposal thereof. The purposes of registration include:-
 enabling the Government to keep track of user and easier collection of revenue;
 simplifying dealings in land registration and also avail certainty and security of title or tenure;
 Reduction of unnecessary litigation in matters relating to land.
 Enables easy dealings in land transactions
Security of tenure: A registered proprietor acquires an indefeasible tile against the whole world. The
security of tenure acquired through registration also gives the property, owner a right to indemnity from
the Government where there is fraud or an error in the Register. See LRA 81-84 Ss, but note the
qualification in S. 80(1).
Reduction of unnecessary litigation: The registered owner can transact or settle his land without the
fear of being sued to challenge his title because upon registration, he acquires an indefeasible title
against the whole world.
Prevention of re-fragmentation of land: Registration helps to determine whether or not a particular
piece of land can be sub-divided because his tide details pertaining to the land, such as acreage, will
have been noted in the Register.
Facilitation of Government property tax administration: Through registration, the Government is
able to identify persons/property owners on whom to levy tax in respect of a particular piece of land and
also keep track of the Government's planning programmes.
2Moriaty, 1984 LQR 376) (Ojienda,2008)

Efficient administration and facilitation of the loan system: The security of title which flows from
registration makes it possible for property owners to obtain loans from financial institutions. A prospective
purchaser has more faith dealing with an owner whose land is registered.
Prevention of concealed dealings in land: Registration gives publicity to land transactions. Since the
register is a public document and is therefore open to the public, it is possible to ascertain who owns
what interest in land.
Upon registration of the land or conveyance the registered proprietor acquires an indefeasible title
against the whole world [cf. Section 24 of the Land Registration Act No. 3 of 2012]. Registration is
effected at the relevant Lands Registries.
Care must be taken that the conveyancing instrument is not only presented at the proper Registry but is
also signed/registered by the proper Registrar.
What is registered? Title (land) and interest (servitudes,encumbrances,quasi-encumbrances).The latter

includes charges, leases, easements, profits, restrictive agreements or covenants 3. The former involves
the estates namely allodiums, fee-simple, freeholds and leaseholds which also rank as limited interests.
Effect of Registration
Pursuant to Section 24 of the LRA the registration of a person as the proprietor of land shall vest in that
person the absolute ownership of that land together with all rights and privileges belonging or
appurtenant thereto; and the registration of a person as the proprietor of a lease shall vest in that person
the leasehold interest described in the lease, together with all implied and expressed rights and
privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities
or incidents of the lease.
One becomes an absolute owner of the title or interest registered. [Reflection: How absolute is
absolute?]
Pursuant to section 25 of the LRA The rights of a proprietor, whether acquired on first registration or
subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except
as provided under the Act, and shall be held by the proprietor, together with all privileges and
appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any,
shown in the register; and
(b) Overriding interest (S. 28 LRA)
3 (see Tulk –v-s Moxhay [1843-60] All E. R 9)

See also: National Prov. Bank Limited –vs- Hastings (1964) Ch
9 Mbui –vs- Mbui (2005) I E. A 256
Marigi Vs Marigi 1996 LLR 463
Ogongovs.Ogongo CACA 29/2003
Esiroyo –vs- Esiroyo (1973) E.A.
Effect of Non-registration
Non-registration means simply that there is no interest passedat least in rem. See however Section 30 (3)a
certificate of title or certificate of lease shall be prima facie evidence of the matters shown in the
certificate, and the land or lease shall be subject to all entries in the register.
Section 26LRA1providescertificate of title to be held as conclusive evidence of proprietorship unless obtained

by way of fraud or misrepresentation or where it has been acquired illegally, unprocedurally or through a
corrupt scheme.
See also Rogan Kamper vs. Grosvenor 1977 KLR 123, Clarke vs.Sondhi (1963) E.A., Merali vs.
Parker (1956) 29KLR 26, Bains -Vs- Chogley (1949)
Reflections: On a proper construction of Section 30 of the LRA, rightsconcerningland give no

proprietary quality unless registered – true & false? cf.
 S. 30(3) LRA.
 Registration only creates more to the whole world and no more.
 Cautions and caveats effect of,
 Overriding interests
 Abstract matrimonial property rights
Echaria –vs- Echaria C.A.C.A 75/2001
Kivuitu –vs- Kivuitu C.A.C.A 26 of 1985
Lord Melvin Blackburn Vs Lady Blackburn ( Malindi HCCC No. 87 of 2007)
Married Women’s Property Act 1882. S. 17
 Adverse possession
Wambugu vs. Njuguna 1983 KLR 172
 Proprietary estoppel.
TengHuanvs.SweeChuan 1992 1 WLR
11
NB
1
Q 1 2008: EXISTENCE OF DEED DOESN’T GUARANTEE TITLE TO LAND. EXPLAIN!
 Registration at the Company’s Registry under Section 96 of the Companies Act (Cap 486) is
required where a Company creates a Charge over its parcel of land. Companies Form 214. use
of,
 Registration at the Registrar of Co-operative Societies.
 Purpose in both instances:
- Create a secured creditor vis-à-vis insolvency
- Notice to prospective Debentures- holders.
 Under Section 44(1) of the LRA every instrument effecting any disposition under the Act shall
be executed by each of the parties consenting to it, in accordance with the provisions of this
section. And this is by of appending a person’s signature on it or affixing the thumbprint or other
mark as evidence of personal acceptance of that instrument.
 Reflections on Registration:Where is registration effected? Who effects it? When is it deemed

to have been effected? What is registration subject to? What is (must be) registered?
INSIDE A LANDS’ REGISTRY:A CONVEYANCER’S NIGHTMARE OR PYRRHIC?

1. Filled Valuation Forms lodged with the Collector of Stamp Duty for purposes of valuation
Particulars of property Form filled by conveyancer
Valuation for Stamp Duty Requisition Form filled by the Collector
and sent to Chief Government Valuer for valuation. This is only applicable where
the document is a transfer or Deed of Conveyance
2. Document stamped and dutypaid at the Banks (KCB/NBK) then document lodged for registration
3. Document presented in duplicate together with all relevant requisite documents e.g. original of the
government’s valuation report, consent, clearance certificate, original title,e.t.c
Fill out application for registration in quadruplicate.
Pay registration fees. 500/=
4.Upon Presentation of document and a day book number given entered into a register and date and
time of presentation endorsed on the document for purposes of priority
-See Sec 27 RDA4
The time of presentation of doc ,not execution or date thereof , counts to pass interest.
5. taken to audit and Government Auditor ascertain stamp/duty,taxes-rent,rates, have been paid.
6. Left for matching with the Deed or Parcel files from the strong room
7. Registration proper commences with the Registry- in charge of marking the documents for action
in a register known as the ’A’ book
First is verification of document by an officer in the registry: detection of any defects
Second is Inspection of the title by an officer to ensure title is clear and registration can
proceed
4Section 27 of the RDA cap 285, the day upon which a document is presented for registration shall be deemed to be the date of
registration.
Third is Entry of particulars of interest being acquired.
8. Document is then passed to relevant Registrar for execution and ultimate registration
Registrar vets it again and then signs in approval or rejection with reasons
9. In epilogue:
Document is photocopied (except RLA documents)
Sealed with Land Registry’s Seal (except GLA documents)
Released to owner. If RTA,RDA,GLA or LTA the Registry keeps a photocopy,if RLA the Registry
keeps the original and releases the counterparts.
Reflection:Why does it take more than 14 days to complete such a simple looking process?
PRE CONTRACT PERIOD AND INVESTIGATION OF TITLE

Of Estate Agents2
Ordinarily any contract of conveyance will have two parties: the Vendor and the Purchaser, the Chargor
and Chargee, the Lessor and Lessee. The third outsider is always the Conveyancer. However most of
the conveyancing transactions have also been known to have another outsider in the form of an agent
who brokers the conveyancing deal. Brokers are now statutorily recognized under the Estate Agents Act
(Cap 533) Laws of Kenya. Their role is to identify a party to a conveyance i.e. the Purchaser or
Vendor or the Financier, at a commission.
The Estate Agents Act was enacted ‘’to provide for inter alia the registration of persons who by way of
business negotiate for or act in the selling or purchasing or letting of land or buildings erected thereon”.
Section 2(3) of the Estate Agents Act expressly exempts advocates from the provisions of the said Act.
Advocates do not need to be registered under Section 13 to practice as estate agents. Advocates by
dint of the provisions of the Advocates Remuneration Order Articles 27 (Sales) and Article 30 (Mortgages)
can also be agents even though they do not meet the stringent qualifications outlined in the Estate
Agents Act. Advocates are exempt from the provisions of the Act under S 2(3)(Advocates can be estate
agents).
For any one to earn a commission as an Estate Agent one must be registered under the said Estate
Agents Act: See Omollo J. A. in Rajdip Housing Development Company Limited vs. J. W.
Wambugu t/a Wambugu & Company Advocates C.A.C.A 4/1991. See also the case ofMapis
Investment (K) Limited vs. Kenya Railways Corporation C.A.C.A 14 of 2005 and section 18 of
cap 5335.
5Section 18 provides(1) After the expiration of six months from the commencement of this Act or such further period as the
Minister may, by notice in the Gazette, allow either generally or in respect of any particular person or class of persons—
(a) no individual shall practice as an estate agent unless he is a registered estate agent;
(b) no partnership shall practice as estate agents unless all the partners whose activities include the doing of acts by way of such
practice are registered estate agents;
2
Q2-2008: ROLE OF ESTATE AGENTS
It is otherwise a positive transgression of the law to practice as an estate agent when one is not
registered6and the message passed by the Court of Appeal in the MapisCaseis that a transaction may
be declared null and void and unenforceable ex turpicausa. The commission is earned when the
transaction is actually successful and is either as agreed or per the scale provided under the Estate
Agents (Remuneration) Rules 2002.
Rajdip Housing Development Company Limited vs. J. W. Wambugu t/a Wambugu &
Company Advocates
The seller asked the advocate to instruct an estate agent to get a buyer for property at the asking price
of 100 million. The advocate instructed the broker who got a buyer for 200 million. Then the advocate
moved a step further and managed to secure 225 million. When the seller realized what happened he
went to court and claimed unjust enrichment and instructed the advocate to refund 25 million. The court
of appeal alluded to the fact that advocates should actually earn commission.
Facts of the case

Rajdip housing the appellant entered into a sale agreement dated March 30 th 1990 to sell to Ufundi co-
operative property situated along Uhuru Highway at a consideration of Ksh. 225 million. Wambugu &Co.
Advocates acted as advocate for the appellant while Mr. Satish Gautama acted for the Society. It was a
term of the Sale Agreement that 125 million represented the developments and expenses and the
balance of the purchase price of 100 million would be paid by installments as stipulated in the
agreement. The advocates of the appellant refused to forward some of the money (25m) to the
appellants as part of the sale price claiming that fees of some firms needed to be settled. These included
fees of Lobi firm as commission agents for the purposes of securing a purchaser and negotiating on the
purchase price of the property. The appellant contended that the advocate had no authority to negotiate
the sale of its property or to bind it in any way without its agreement nor had it held them out as having
such authority. The advocates argued that the agreement was ambiguous and therefore extrinsic
evidence was needed to show the intention of the parties. The court was of the view that an instrument
must be read most strongly against the party who prepares it and offers it for execution. This is the rule
in the maxim verbafortiusaccipiuntur contra preferentem. Also unless otherwise shown the
presumption is that the advocates for the vendor prepare the Agreement of Sale.
Reflection: Are Advocates to be subjected to the Estate Agents (Remuneration) Rules 2002 or the
Advocates (Remuneration) Order when calculating their commissions as Advocates qua Agents? Are
(c) No body corporate shall practice as an estate agent unless all the directors thereof whose duties include the doing of acts by way
of such practice are registered estate agents.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding twenty thousand
shillings or to imprisonment for a term not exceeding two years or to both.
6 Ibid
Advocates deemed qualified per se under the Estate Agents Act? What happens when an estate agent
misappropriates money deposited with him and which constitutes part of the purchase price?
It must however be noted that the role of a Conveyancer and of the Agent must always be separated.
An Advocate must as a Conveyancer keep off the negotiations and show the least interest. Likewise an
Advocate must not allow an Agent to take over his role e.g. conduct an investigation of the title on behalf
of or for the Advocate. Besides estate agents, a conveyancing transaction may also invite other
“innominate“parties. A conveyancer and or a party to the conveyance may require the services of a
‘Valuer’,’an urban planner’, ‘a surveyor’, ‘an architect’ to ensure the success of the transaction.
Q2: 2008 – DISTINGUISH BETWEEN FUNCTIONS OF SURVEYORS,

URBAN PLANNERS & VALUERS
Land valuer
Land valuers must be qualified under the Valuers Act- Cap 532. They value the property especially if the
purchase is financed by a bank.
ROLES OF GOVERNMENT VALUERS IN CONVEYANCING
Planners (control of developments and subdivisions within local authorities)

Planners must be registered under the Physical Planners Registration Act no.3 of 1996.
Architects
Architects must be qualified under the Architects and Quantity Surveyors Act (Cap 525). Create the
architecture of the development.
Quantity Surveyors
They must be qualified under the Act above. They estimate the quantities and cost of the materials
labour and time of the development.
Land Surveyors
They must be qualified under the Survey Act (Cap 299). They determine boundaries and mapping. They
are useful when subdividing the property.
Reflection: In what instant will you advise your client to engage the services of each of the above
professionals?
Of the Initial Client Interview

Prior to the formation of an enforceable contract an Advocate will have an initial client interview. The
purpose of the initial client interview is to firstly gather all the relevant facts pertaining to the intended
transaction and secondly afford crucial advise to the client on transactions generally and the particular
transactions specifically. There is utter need to prepare well for the interview. The facts and instructions
to be ultimately obtained at the initial client interview will depend on each transaction but ordinarily one
will be interested in:-
Details of the parties: names, capacity, advise on co-ownership [cf. Barclays Bank PLC vs. Obrien
(1994) 1AC 180, Shah V Akiba Bank Limited (2005) 2 KLR. At the initial interview, look at their
capacities. For instance if the client is a minor, you advise the client to use a trustee. If transferred to the
minor there are repercussions because the minor will not be able to transfer the property or deal with the
property as he/she may please. Or in certain circumstances the trustee may even misuse the property.
The issue of joint tenancies where such systems are recognized by registration systems. Distinguish joint
tenancy and tenants in common. In joint tenancies the interest is bound and if a tenant dies then the
other tenants gets the share of the deceased tenant. A lawyer can be sued if unmarried couples are
advised to take up joint tenancies. In co-ownerships if advising a mortgagor it is critical to ask the wife to
obtain independent legal advice as this came from many common law cases like: Barclays bank PIC v.
Obrien,in this case the House of Lords held as against the court of appeal, a wife who hasn’t obtained
independent legal advice any such mortgage will be void but only as against the wife. This is the law,
but you ask as a legal advisor aren’t you giving legal independent advice?
Details of the proposed conveyance:parcel number, fixtures, consideration. As an advocate you need
to know the plot number, if the land only is being sold or there are fixtures.
Authorization to disclose details and information about related transactions: Cf. Mortgage
Express Ltd vs. Bowerman& Partners 1996 2 All E R 836. The authorization from the client that
you may disclose information related to the other members in the chain or the parties. There is the duty
of confidentiality and you need permission first. You need to ascertain and get formal authorization. If the
client denies this permission what should the advocate do? Breach the duty of confidentiality or let go of
the brief. Here you try and advise the clients of the repercussions in that if the information isn’t disclosed
the transaction could take longer than expected. There is a duty by the advocate to uphold the dignity of
the client, because if you keep everything in confidence most of the time the client would come back to
you. If the property is charged to a 3rd party you ought to be in a position to disclose the amount the
client is borrowing. In the case of Mortgage Express Limited v. Bowerman& Partners 1996 2 All
ER 836 it was held the advocate doesn’t just protect the client but also 3 rd parties for the sake of earning
fees. You shouldn’t encourage such fraud just to earn your fees.
Details on pre contract enquiries.Especially acting for seller. Here you are bound to receive pre
contract inquiries which are searches that inquire on the physical structure of the property. When acting
for the buyer at the initial interview you don’t really tell your client to go and investigate but if it’s the
seller you even have an evaluation report. Advocates must be equipped with all these information so that
you aren’t sued for negligence.
Discussion on conflict of interest: when acting for buyer/ seller it is a general principle of
professional conduct that an advocate must not act for two or more clients where there is a conflict of
interest between those clients. There is no specific bar against acting for a buyer and seller provided
there is no conflict of interest. The advocate must however not be involved in the negotiation of the sale
price of the property. It is also advisable to get the written consent of both parties for an advocate acting
for both the seller and the buyer. Acting for Lender and Borrower: Acting for lender and borrower is
generally permitted provided the chargee is an institutional lender which provides charges on standard
terms in the normal course of its activities, e.g. a bank or building society. This in the vast majority of
residential transactions, the advocate for the borrower/purchaser will be the same as the advocate for
the lender
The nature of the advise you offer the client must be independentt [ Cf . Barclays Bank PlcVs Obrien
1994 All E R, Royal bank of Scotland VsEtridge 2001 4 All E R 449]
Discussions on fees.-All relevant client care information, together with information on fees to be
charged must be confirmed in writing at the start of the conveyancing transactions. It’s possible to agree
on the advocates fees for the whole transaction. It is also important to inform the client the right to
increase the advocate's charges should the transaction prove to be unduly complicated or protracted. In
this way, the advocate does not bind themselves to a fixed unalterable fee. It may be necessary to
reassure the client by saying that in the vast majority of cases, no increase is, necessary. An advocate
must inform the client in writing the estimate of fees and should also advise the client immediately in
writing if the figure is to be revised.
Discussions on financing and financial implications of the transaction:advice on deposits, stamp

duty, undertakings
Details on the title documents:Obtain copies of the title document.
Reflection:”...When men die at war it is usually because of lack of proper preparation...” Sun Tzu
300B.C.How prepared isyou for your initial interview?
What is the principle of “Independent Legal Advise “all about? Cf. purpose of transaction, nature of
documents as well as their terms and effect, giving client option of making the choice and advise on
liability premised on the documents
Of the Investigation of Title (and Property)
Investigation of title (and property) is the process through which a Conveyancer determines whether the
client is going to ultimately acquire a good marketable title. The Conveyancer is obliged by practice to
ensure that what is being disposed of and or what is being acquired is a good marketable title. For three
basic reasons title (and property) are investigated.
Firstly the caveat emptor (Buyer beware) rule imposes an obligation on any person intending to acquire
an interest in property to investigate the same. A Seller is under no obligation to disclose patent defects
but he is under an obligation to disclose such latent defects as he may be aware of [Reflection: What are
patent defects? And latent defects? Can you figure out some examples of either?].
Secondly, the well settled principle of law that a bona fide Purchaser for value without notice acquires a
good title to property unaffected by matters of which he had no notice also dictates that the title (or
property) is investigated in order for a party to have the protection afforded by the law to such bona fide
Purchasers for value without notice: see Oliver V Hinton 1899 2 Ch D 264, Section 3 of the Conveyancing
Act 1881, Section 199 of the Law of Property Act 1925.
The third reason for investigating a title (or property) is that prudence and practice demands the same
of a Conveyancer as well as of his client. The client wants to be certain that it is obtaining a good and
marketable title. Failure to do so may result in a successful claim for negligence in the event of loss on
the part of the client. It may thus be said that investigation of the title (or property) is part of defensive
conveyancing. Vendor- deducing of title, disclosure of latent defects: This is the responsibility of the
vendor. Vendor is expected to deliver on the promise that he has good title to the property. This duty is
imposed on the vendor because it is expected that the devolution of interest in a property is best known
to the vendor.
The Vendor deduces the title by submitting an abstract of title. This is a brief history of the property
showing how the interest in the property moved from one person to another, the encumbrances and any
other thing that may affect the property. It is also called an epitome of title in many jurisdictions- a
schedule of documents and other relevant information which constitute the title together with copies of
these documents. LSK Conditions of Sale- cond. 9 requires the abstract to be presented by the vendor
within 14 days of the date of the agreement.
Immediately after receiving the abstract/epitome of title it is the duty of the purchaser to conduct an
investigation of the title. The purchaser is expected to go to the following places:
 Land Registry (remember the location of the registries for the various registration Acts)
 Company Registry- where the property is/was owned by a company
 Probate Registry-where transfer is by succession
 Local Authority- to establish planning hindrances, notices, rates payment
 Survey Department to establish boundaries.
 Physical Inspection of the property- to ensure the measurement, description, boundaries,
improvements etc correspond with what is in the title. Also to establish patent defects.
 Court records- if there has been a dispute over the property.
Ideally, investigation of title (or property) will be conducted prior to the contract being executed. Post-
contract investigations of title may however also serve the purposes. [Reflections: what dangers would
post-contract investigations of title pose to the Conveyancer and or his client? Distinguish between patent
defects and latent defects.]
There are basically three mediums of investigating the title or property. These are searches, pre-
contract inquiries and requisitions.
(a) Searches
Like registration, searches also shield against fraud. Searches are enquiries carried out usually by the
Purchaser’s or Chargee’s or Leassee’s Advocate in the government departments so as to check ownership
of the interest as well as planning, environmental and encumbrances and other related matters which
affect ownership of the interest being transferred or given and which matters are noted or ought to be
noted on the title register.
It is effectively the purposeful inspection of title records or register at the relevant (Lands) Registry. The
modern Conveyancer is more concerned with the Lands Registry Search though it is advisable that the
other searches are not ignored. Such other searches will include searches at the Companies Registry to
confirm existence of the Vendor or solvency of such Vendor, search at the Local Authority Registry to
ascertain any planning hindrances or notices search at the Survey Department to reconfirm or identify
boundaries.
With regard to the Lands Registry searches, the statutes recognize both official and unofficial or hand
(personal) searches. An official or postal search is one made by an Official of the relevant lands Registry
at the behest of a party upon payment of the requisite search fees and the results of such official
searches are guaranteed by both the registry and the Government as accurate. A Certificate of Official
Search is always issued for such searches. The personal or unofficial or hand search on the other hand is
made by a member of the public by inspecting the relevant register, parcel or deed file availed by the
Lands Registry staff. Currently only Lawyers and Advocates are allowed to conduct personal or hand
searches. The official search may have the advantage of a government guarantee and indemnity for any
loss resulting or sustained by reason of a defective official search, but is also has its disadvantage in that
the Registry staff may not be able to discern and avail all the relevant information. Such failure to
discern and avail information may not necessarily amount to a “defective search” to qualify for indemnity.
The Official Search on the other hand has one great advantage that one is able to collect the information
required without discrimination.
In conducting a search one ought to get details of ownership, of special conditions, of the tenure, of the
rental, of the user, of encumbrances and quasi-encumbrances (i.e. caveats). Expect however to meet
such hiccups as missing registry deed or parcel files.A third type of Lands Registry Search ordinarily not
conducted is the “historical search”. This refers generally to a search on the history of the subject
parcel of land. Such history will be found in the correspondence file and not the parcel or deed file. The
correspondence file contains all the details about the origin of each parcel of land from the allotments to
any subsequent subdivisions and indeed to the “root of the title”. The correspondence file is comprised
of the internal correspondence between the various sub-departments of the Lands Department. It may
thus be ranked confidential and it is important that an official request is made to the Commissioner of
Lands.
The availability of the correspondence file has however helped in discerning good and marketable titles
as was in the cases of Gitwany Investment Limited –vs- Tajmall Limited and 2 Others ( 2006 2
E A 76) and Skyview Properties Limited –vs- Attorney General & 2 Others (NBI HCCC No.
1622 of 2001 unreported). The Court of Appeal however seems to hold the contrary as in Pashito
Holdings Limited &AnorVs Paul NderituNdungu& Others [1997] eKLRthat one
shouldnotinvestigate a title beyond the register at the lands’ registry. See also Justice Kimaru’s obiterin
Attorney General Vs Kenya Commercial bank Limited , Afraha High School Limited & 2 Others
[2004]eKLR that historical searches are unwarranted and unnecessary for being an affront to the
principle and concept of registration.[ Reflection: do the statutory provisions allowing official searches
effectively also allow a historical search to be conducted? Need one limit himself to statutory searches
only? Are you intellectually independent of your client’s control as an officer of the court and law and thus
the consequences of your client’s acts must be viewed by you in the larger probably public’s interest as
well?]
The result of Searches will disclose information in relation to the Vendor/Mortgagor and or the property.
It may be necessary to disclose and discuss such information to the client as this may impact on the
decision to purchase or take the security. Good practice however demands that you engage the other
party or require the other party or his Advocates to confirm position of the findings i.e. wills the detected
encumbrances be discharged?
NB: read- s.39 RDA and s.34 LRA
(b) Pre Contract Inquiries
Pre Contract inquiries are also a medium of investigating the title (or property). They are preliminary
inquiries relating more to the physical condition of and location of the subject property as well as the
proposed contractual document itself. A Purchaser will ordinarily want to know the physical condition
and extent of the property. For this the Purchaser will conduct a personal inspection of the property or
deputize his agent (e.g. a valuer). The inspection is conducted to help ascertain not only the value of the
property but also to detect physical and patent defects, ascertain those in occupation, ascertain the
boundaries and also to check on the fixtures and fittings, if any. Naturally these are matters not covered
by searches and pre-contract inquiries will thus be made after such physical inspection to help plug in the
gaps.
Pre contract inquiries thus relate to matters touching on the physical condition of the property as well as
other matters not covered by searches. They are as important as searches. The Purchaser, for example,
buys the property as it stands and the Vendor is under no duty to disclose any physical defects in the
property. The Purchaser must be advised by the Conveyancer of this and must be further advised that in
order to protect himself or herself he or she should have the property fully surveyed and inspected before
the contract is signed. Some of the pre contract matters one will bother himself with include
development prospects and planning permission matters of the property and adjoining property, access
to the property, boundaries of the property, water supply, physical defects detected or suspected,
disputes existing in court over property, tenants in occupation or absent, etc. The full extent of the pre
contract inquiries will depend on each particular transaction and property. When acting for the Vendor it
is important not to presume any answers to pre contract inquiries but to consult with the client and
answer accurately as possible. Answers if unequivocal and relied upon but turn out to be untrue can lead
to a suit in damages both against the client and his Advocate providing the answers especially where the
Advocate decides to step out of his role as Advocate and accepts direct responsibility towards the third
party: Gran Gelato Limited –vs- Richcliff (Group) Ltd [1992] 1 All ER 865. See also Cross J’s
holding in National Provincial Bank Ltd Vs Hastings 1965 AC 1175 that “persons dealing with
unregistered land must obtain same information outside the register in the same manner and from the
same sources as people dealing with unregistered land would obtain it”.
EXPLAIN WHAT UNREGISTERED LAND IS & REASON TO ADVISE CLIENT

NOT TO BUY IT3
(c) Requisitions
The purpose of requisitions on title besides aiding the process of investigation of title is to help give the
Purchaser title in accordance with the contract for sale. Requisitions relate to matters which arise not on
the basis of the search or simple physical inspection of property but through the inspection of the title
document or abstract availed. The requisitions are in the form of forthright questions arising after a
3
Q1b-2008
perusal and deduction of the title document. Deduction will relate to tenure or the property, execution of
the title document, identity of and description of theproperty, underpaid stamp duty, identity of the
encumbrances if detected on the face of the title.
The LSK Conditions of Sale (1989) at Condition 10 provide for the requisitions or objections to be made
after the contract has been executed and in any event not later than fourteen (14) days after delivery of
the abstract, title deed or a copy thereof. However as requisitions do not enable the Purchaser to have a
second bite of the cherry in respect of matters which were overlooked at the time of execution of the
contract, good conveyancing practice would tilt towards conducting requisitions prior to the execution. A
Vendor is however under an obligation to fully and correctly answer the requisitions.
Additional Notes
Why do
searches?
The caveat emptor rule remains a cornerstone of conveyancing. It is prudent that a buyer will need to
find our as much as possible about the subject property before contracts arc exchanged. The seller to
some extent and under common law also has a duty to disclose any material subsisting encumbrances.
.A prudent buyer needs to discover as much as possible about the property being purchased.
This is the obligation of the buyer's advocate. The buyers advocate must conduct pre-contact searches
and all preliminary enquiries. The advocate must carry out all appropriate searches and enquiries before
advising the buyer to sign any contracts to purchase property. Advocates must bear in mind that if they
fail to carry out every appropriate search, they will be liable in negligence for any loss suffered by the
client as a result of their negligent conveyancing. The advocate must also advise the buyer of the need
for a physical search or inspection of the subject property prior to the exchange and the signing of any
contracts. In Kenya, searches can be divided into official and unofficial searches. In all searches, nominal
fees are paid.
Personal searchesentail an actual examination of the deed files or register. A personal search may
be carried out by anyone. Normally advocates use their conveyancing clerks to do this. A search will
reveal details of all transactions registered against or in respect of the title.
Official searchesconstitute of an application to the registrar of lands to supply the person applying with
certified copies of details of the register (RLA). The registry by accepting to do so, takes responsibility of
investigation of the title. Certified copies are admissible in court and -conclusive of the entries in the
register of deed file in the event of litigation.
The Significance of Searches

Searches may appear simple and routine, but they are vital for successful conveyancing.
An omission of a search could lead to unpleasant surprises. These include;
a) Discovering that documents lodged for registration cannot be registered because of restrictive
entries such as caveats, caution, prohibitions or restrictions on tide.
b) Discovering that the title is encumbered.(Charges)
c) The proposed vendor may turn out not to be the registered proprietor of the subject property.
The unpleasant surprises may turn out to be a matter of professional negligence against the
advocate. There is also the issue of embarrassment.
Other necessary searches include;
Investigations of the correspondence file to establish if Land Rents have been paid over the years. Huge
outstanding land rent arrears owing to the government by prospective vendor could affect a
sale/purchase transaction. An investigation of the status of payment of rates at local municipal offices is
also essential.
Physical Search or Inspection of the Property

A buyer should always be advised to inspect the subject property prior to exchange or signing of
contracts. The reasons for this are five fold;
Why check the state and condition of the property.

In general the seller is under no obligation to reveal defects in the property. There is normally no
warranty given about the state of the property and consequently all buyers should obtain their own
survey report before contracting to purchase property. The caveat emptor rule (let the buyer beware),
applies to conveyancing transactions. In most cases, sale agreements will stipulate that the buyers accept
the property in the physical state it is in at the exchange of contracts. A prudent buyer will therefore use
the services of professional advisers such as surveyors or valuers to assist in inspecting all the buildings.
(ii) To check who is in Actual Occupation of the Property

This is critically important as the seller may not be the person in actual occupation of the property and
others could be entitled to occupy the property not withstanding that they are not co-selling. It is of most
importance to check that there are no undisclosed occupants within the property who could claim rights
of occupation and thereby delay or defeat completion. As well as physically inspecting the property, a
buyer’s advocate will also raise written enquiries about who is in occupation (e.g. tenants.)
(iii) To check boundaries

A buyer will want to be sure that the contract correctly describes the property and the boundaries on the
ground are the same as those shown in the title and in the contract.
(iv) To check on rights and easements affecting or benefiting the properly.
A physical inspection of the property will assist the buyer establish the rights of others, such as path
ways and gates. Any easements adversely affecting the property should be referred to the seller without
delay for clarification.
(v) To check fixtures and fittings contracted to be sold are in the subject property just prior
to the exchange
The buyer will want to be sure that items to be sold actually exist and are within the subject property.
(Water tanks, electrical fence, etc)
Advice on Survey
A purchaser / mortgagee/chargee should always be advised to have a survey carried out before
exchange of contracts because of the caveat emptor principle, 'let the buyer be ware.' It is for the
buyer to discover all the physical defects in the property and these may not be apparent from the clients
own inspection. A client may sometimes be reluctant to incur additional expenses in survey fees. It is
however the advocate's responsibility to advise the client that this is money well spent. Failure on the
advocate's part to give this advice could amount to professional negligence. A physically defective
property may of course be unsafe to occupy but there are financial implications for the purchaser as well.
The market value of a property will be reduced if a property is in poor condition and so the purchaser
may be paying more than he/she should. This may also adversely affect the purchaser's ability to
mortgage the property or sell it at a later date. There is also the danger of non-existent properties. These
are all considerations that must be drawn to the client's attention. Basic valuation by a registered valuer
constitutes one of the simplest and cheapest forms of survey. It constitutes a visit and physical
examination of the property to establish the property's value on the open market and its physical
delineation.
A valuation report is important especially if the property is to be charged to secure a loan. A mortgagee's
surveyor/valuer owes a duty of care not only to the lender but also the borrower who relies on the
report. A copy of the valuation report should be made available to the borrower. Special considerations
when valuing include; neighbouring properties, drainage, infrastructure, location, the zoning and
development policy by municipal authorities of the property area are also key.
[Reflection: What remedies are available to a recipient of inaccurate answers to pre-contract inquiries
or requisitions?]
EXECUTION & ATTESTATION

Execution is the signing of documents the purpose of which is to authenticate and acknowledge the
same. Signature on the other hand is the “writing or otherwise affixing a persons name or a mark to
represent his name by himself or by his authority with the intention of authenticating a document as
being that of, or as binding on the person whose mark or name is so written or affixed”. Initials, thumb
prints (left thumb for men, right for women) are deemed to be signatures but the mere typing of a name
is not (See: Lord Denning in Goodman Vs J. Eban 1954 1QB 550, see also First Post Homes Ltd
–vs- Johnson [1995] 4 All. E. R. 355, Section 3(6) of the Law of Contract Act (Cap 23) Laws of
Kenya). Section 44 of the LRA provide for execution of documents.
Natural persons can sign by themselves or by their duly constituted Attorney(s). Companies and other
juristic persons will execute the document as per the provisions of their respective constitutions,
memoranda, charter or the constituting statute as necessary. Such juristic persons may also execute
documents through their duly constituted Attorneys. A close perusal of these constituting or establishing
documents or statutes is thus important. Look at sections 43-48 of the LRA.
Whilst the actual conveyancing instruments must be signed by the proprietor or his duly constituted
Attorney, a Sale Agreement may be signed by he who has “apparent or ostensible authority” and not
necessarily actual authority. [ Reflection: In the recent case of Shem Obondi Vs Seemford Holdings
Limited, the Court of Appeal seems to have suggested that apparent or ostensible authority has no
place in modern day commerce. Do you agree?]Documents will be signed at the signature block which
appears at the very end of the conveyancing document. It is however prudent that to achieve the aim of
execution and also to guard against unscrupulous practitioners, parties be encouraged to initial or sign
every page of the document.
Attestation is the proper witnessing of a signature or execution. It simply means to bear witness to a fact.
The person witnessing the execution must be present as the executant ascribes his mark. The object is to
help guard against fraud and thus a party to a deed cannot attest to its execution. A Vendor ought not
witness the Purchaser’s signature and vice versa. So seriously is the issue of attestation taken that the
Court of Appeal in Lamchand Fulchand Shah –vs. - I & M Bank Limited C. A. C.Appl. No. 165 of
2000 decreed that where there is a question of proper or improper attestation then the Advocate who
purportedly witnessed the execution must be made a party to the suit. The conveyancer must thus take
care and ensure the document has been executed in his presence. [Reflection: who should attest the
execution?]. A document executed by a company does not necessarily require to be attested: see Coast
Brick –vs- Premchand Raichand 1966 E. A. and Eccon Construction & Engineers –vs- Giro
Commercial Bank [2003] 2. EA LR 426
VERIFICATION
Verification is explicitly provided for under section 45 of the Land Registration Act. It is however more
than just witnessing. A person executing an instrument is required to appear before the Registrar, public
officer or other person as is prescribed; and be accompanied by a credible witness for the purpose of
establishing identity, unless the person is known to the Registrar, public officer or other person. The
Registrar, public officer or other person shall then identify the person and ascertain whether the person
freely and voluntarily executed the instrument, and shall complete thereon a certificate to that effect.
POWER OF ATTORNEYS
This is an authority in writing by which one person (donor/ prinicipal) enables another (attorney in fact or
donee) to act for him. Attorney is a person who is appointed by another and has authority to act on
behalf of another. The authority could be general or special (specific). It authorizes the donee to do some
lawful act for and in the stead of the donor. The authority is contained in a Letter of Attorney and could
be irrevocable or revocable. Ordinarily it is irrevocable when there is some interest conveyed or granted
to the decree. The donee can use the authority to do only what he is authorized under the Letter of
Attorney to do and no more. Since the Land Registration Act makes no form for a power of attorneys the
RLA prescribes a mandatory form to be used in donating the authority which form must be executed and
the execution verified
It is a general rule that an act done under a power of attorney must be done in the name of the person
who gives a power, and not in the attorney's name. The power may be general or specific. The person
appointing is known as the principal or donor. The person appointed is referred to as the donee. A
power of attorney presupposes that the person donating it has capacity. As such, a person of unsound
mind, for example, has no capacity to donate a power of attorney. Consequently where a person purports
that he has a power of attorney donated to him by a person of unsound mind, as was the case in
Grace Wanjiru Munyinyi & another v Gedion Waweru & 5 others, 7 the power is null in law. A
power of attorney must be executed by the Donor of the Power and thereafter stamped and registered in
the Register of Powers of Attorney. Stamp duty is payable by the donor/executor.8
Power of attorney may be revoked through the following ways:

a) By the donor executing a revocation
b) By performance of the act it was created to perform
c) Expiry of time
d) Operation of the law e.g. when the principal becomes a bankrupt, his power of attorney
in relation to property or rights of which he was divested by the bankruptcy, is revoked
by operation of law.
The Execution of Powers of Attorney
7 Civil Case No. 116 of 2002 (High Court at Nakuru, Kimaru J)

8 Section 46 of LRA
Section 48 of the Land Registration Act No. 3 of 2012 makes provisions for powers of attorney.
Pursuant to this section, an instrument dealing with an interest in land shall not be accepted for
registration where it is signed by an agent (other than the registered proprietor) without a power of
attorney. The original of such power of attorney must be filed. In the event that one wish to file a copy of
the power of attorney then it must be with the consent of the Registrar and the copy must duly be
certified by him.
However, an instrument may still be registered when signed by an agent without a power of attorney in
certain circumstances. These are:
a) Under section 48(3) of the Land Registration Act, the guardian of a person under a
legal incapacity or, if there is no such guardian, a person appointed under some written
law is allowed to generally represent that person for purposes of the Act without
necessarily obtaining a power of attorney, by way of an application for the same.
b) Under Cap 248 (Mental Treatment Act) one may apply to manage the property of an
insane person. Such a person need not have a power of attorney.
Sample forms on Powers of Attorney
The forms on power of attorney are to be found in the Government Lands Act (Cap 280), the Registration
of Titles Act (Cap 281), the Land Titles Act (Chapter 282), the Registered Land Act (Cap. 300) which were
all repealed by the Land Registration Act (LRA) No. 3 of 2012. However the LRA does not provide for the
forms on powers of attorney. Resort is thus provided for under section 108 of the LRA which provides
that:
Until the Cabinet Secretary makes the regulations contemplated under section 110, any rules, or other
administrative acts made, given, issued or undertaken before the commencement of this Act under any
of the Acts of Parliament repealed by this Act or any other law, shall continue in force and shall be
construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into
conformity with this Act. Section 110 on the other hand empowers the cabinet secretary to make the
forms to be used in connection with the Act.
Pursuant to the provisions of section 108 the following forms may still be used:
SPECIAL POWER OF ATTORNEY

APPOINTMENT
I, MAYENDE NYONGESA, of Post Office Box Number 781 Bungoma in the Republic of Kenya do hereby
appoint BARCLAYS BANK OF KENYA LIMITED of Post Office Box Number 30691 Nairobi (hereinafter
called “the Attorney”) to be my attorney with authority to do all or any of the acts and things hereunder
specified on my behalf in relation to my property known as L R No. 209/34 (hereinafter called “the
Property”)
AUTHORITY
The Attorney has authority in my name and on my behalf and on such terms and conditions as seen to
him expedient to:
1. to sell to any person all or any of my interest in the Property;
2. to charge or mortgage all or any of my interest in the property for any sum at any rate of
interest;
3. to lease all or any portion of the property for any term of years at any rent;
4. to demand collect receive and take all necessary steps to recover all rents and other
sums owing to me in relation to the property;
5. to obtain or accept the surrender of any lease in which I am or may be interested in
relation to the Property;
6. to exercise and execute all powers which are now or shall hereafter be vested in or
conferred on me as a lessee or chargee under any Act of Parliament in relation to the
Property;
7. to represent me and to appear in my name and stead and on my behalf, before any Land
Registry in Kenya and before any other official government or municipal officer or
competent local council or any other administrative officers or before any other authority
in all matters pertaining to or connected with the Property and to sign and execute all
certificates documents contracts and declarations before such authorities or offices and
to perform all actions and matters which may be required by law in connection with this
power of attorney;
8. to enter and permit others to enter the Property;
9. to take any action to abate any nuisance;
10. to do all other things incidental to the above powers or which it thinks necessary or
expedient in relation to the Property as fully and effectually as I could do them myself.
REVOCATION
I shall not revoke this Power of Attorney as long as I remain indebted in any manner to the Attorney.
IN WITNESS WHEREOF I have hereunto set my hand and seal today this……day of June 2012
SIGNED and SEALED by me the Said MAYENDE NYONGESA )
In the presence of: - )

Advocate )
DRAWN AND FILED BY:
GENERAL POWER OF ATTORNEY

POWER OF ATTORNEY
-TO-
SHINJI KAGAWA
I, MAYENDE NYONGESA of Post Office Box Number 781 , Bungoma HEREBY APPOINT my son
Shinji Kagawa of Post Office Box Number 781 , Bungoma AS MY TRUE AND LAWFUL ATTORNEY
for and in my name to manage, transact and generally conduct all lawful business, act or activity on my
behalf and in may name without any reference to me AND without prejudice to the generality of the
foregoing to sign, attend and otherwise participate on my behalf and in my name (in so far as my
signature attendance or participation would be requisite) all documents, correspondence, meetings and
other activities relating to:
a) ordinary correspondence, checks and other bills of exchange;
b) hiring, leasing, transferring and mortgaging of any of my property;
c) taking of leases and mortgages by myself;
d) opening and maintenance of any type of account with any bank or financial institution;
e) recovery of any and all moneys, debts or property due and owed to myself;
f) taking delivery of letters, telegraphic messages, drafts, packages and securities of any kind, from
the Post Offices or from Railway, Airline, Express or Steamship companies against the necessary
receipt and discharge signature;
g) attending, taking part in or voting at any and all meetings of creditors, shareholders, directors or
officers of any corporation or association in which I have an interest or to give proxy therefore;
h) arbitration, suits, actions and other legal or equitable proceedings in which my interests are
concerned;
i) employment, retention, suspension or dismissal of any and all employees in my employ;
j) execution signing sealing and delivery of all deeds contracts receipts acknowledgement notices
instruments documents and letters necessary and proper for effectively doing or causing to be
done any or all of the acts and things which the Attorney is by these presents empowered to do
on my behalf;
k) generally to do or cause to be done for and on my behalf all acts and things whatsoever whether
expressly mentioned herein or not which may seem to the Attorney to be requisite or expedient
to be done or caused to be done on my behalf.
IN WITNESS WHEREOF I have hereunto set my hand and fixed my seal this … … day of … … … … …
2012
SIGNED and SEALED by me the said )
MAYENDE NYONGESA )
In the presence of : - ) )
Advocate )
DRAWN AND FILED BY:
RAFAEL DA SILVA & CO. ADVOCATES
ADVOCATES
ALCATRAZ PLAZA, 4TH FLOOR,
TEABAG AVENUE, LIMAU,
P.O. BOX 781-00100,
NAIROBI
STAMP DUTY
As part of conveyancing and taxation, stamp duty is basically revenue raised by the Government by
requiring stamps sold by the Government to be affixed to designated documents. The stamps are affixed
or embossed or impressed by means of a red dye or franking or adhesive revenue stamps. The Stamp
Duty Act (Cap 480) Laws of Kenya designates various conveyancing instruments to be stamped. Section
5 of the said Act demands that every instrument relating to property in Kenya if specified in the Schedule
to the said Act do fetch stamp duty as prescribed. The duty is to be paid within 30 days of execution of
the document or of its receipt if it is executed outside Kenya (Section 6). [Reflection: when do you date
the conveyancing instrument? Who authorizes payment of duty when there is a delay beyond the
statutory time and what is the penalty?].
Failure to pay duty is equivalent to evasion of tax and is a criminal offence under Section 113 of the Act.
Section 46 of the LRA supplements the Stamp Duty Act and under the Section no document is acceptable
for registration if the stamp duty required to be paid has not been duly paid and documents properly
stamped [Reflection: what is proper stamping: revenue stamps, or franking]. Duty on conveyancing
instrument is paid on the ad valorem value at the statutory rate. The rates currently are : Transfers –
4% for properties situate within cities municipalities and 2% of the value for properties outside
municipalities/cities; charges and Mortgages – 0.1% of the amount secured; Discharges/Reconveyances -
0.05% of the amount secured and Leases 1% of the annual rent for a Lease of less than 3 years and 2%
of the averaged rent for a Lease of 3 years or more. Long term Leases or subleases are deemed to be
Transfers and fetch duty as if they were Transfers.
Currently stamp duty fees is collected directly by the Kenya Revenue Authority by payment being made
to the Authority’s account in commercial banks. The document together with the stamp duty
assessment form and the banking pay-in slip is then delivered for stamping by the Collector of Stamp
Duty. The Collector has powers to adjudicate and decide whether a document should fetch duty
[Reflection: How wide is the Collector of Stamp Duty’s discretion under Section 17 of the Stamp Duty
Act? Contrast and compare this Section with Sections 96/97 of the same Act].
Exemption from payment of duty is however the recluse of the Minister of Finance after receiving the
appropriate recommendation from the Minister of Lands [see Section 106]. Relief and or exemption will
be granted to charitable organizations as well as religious organizations or institutions. Certain
institutions are also duty-exempt. These include educational institutions, government departments (e.g.
Central Bank of Kenya) and the Export Processing Zone Companies. [Reflection: what possible reforms
would you recommend to the Stamp Duty regime? E-stamping, first-time home owners be duty exempt,
beneficiaries of deceased estates to pay file duty, base duty on the theory of “from each according to his
means”.]
It is important that in a conveyancer’s brief; the Stamp Duty Assessment Form obtained from the
Collector of Stamp Duty is completed in a legible manner, the payment is re-checked to have been fully
made to match the amount assessed, all receipts are available copied and properly filed and any
certificates for purposes of relief or exemption required are obtained in time.
Process:
 Applicant presents document for assessment by collector. Fills Form SD1
 Assessor confirms if duty is payable, counterchecks info on the form and document, ascertains
amount and endorses both Form and document
 Applicant pays amount in designated bank
 Returns document with proof of payment to Collector of Stamp duty
 Collector of Stamp Duty reconciles records and stamps document by franking
 Audited by Government accountant and dispatched
RATES & RENT CLEARANCE CERTIFICATES
Rates are levies payable to the Government through the local authorities under the Rating Act (Cap 267)
Laws of Kenya. It is simply a form of taxation and conveyancing helps in a way towards its collection.
Upon full payment of rates due on any parcel of land, the local authority’s Clerk issues the owner of the
parcel with a Rates Clearance Certificate. It is prima facie evidence that the rates due and any interest
accrued thereon have been fully paid. Sections 38 of LRA require that prior to the Registrar accepting
any document intended to transfer or vest any interest in land for registration there must be also
produced a valid Certificate or Statement showing that the rates have been cleared or paid up. Rates will
be levied on all parcels of land, freehold or leaseholds.
Land Rent, too, is a source of income for the Government as Landlord. Land Rent will be levied only on
leasehold parcels where the annual rent has been reserved at the time of the Grant being issued.
[Reflection: what is a peppercorn?] Section 39 of the LRA helps to assist the Government in collection of
rent as both Sections require that before any transaction on a leasehold property is registered the parties
must produce to the Land Registrar a valid Rent Clearance Certificate. It is always the duty of the
registered proprietor to pay and obtain the Rates and or Rent Clearance Certificate, unless agreed
otherwise. [Reflection: What is the process of obtaining either a Rent Clearance Certificate or a Land
Rates Clearance Certificate? What are the challenges met by ordinary practitioners?]
RATES CLEARANCE CERTIFICATE

This is issued by the appropriate local authority in whose area the land is situated. It certifies that all
monies payable to the local authority in respect of that property have been paid. Such monies include:
i) Land rates
ii) Interest charges on rates and
iii) Unpaid water bills.
It is necessary to obtain a Rates Clearance Certificate before a transfer is presented for registration: S.86
RLA; S.33 RT A. Both state that the Registrar shall not register a transfer unless a Rates Clearance
Certificate is produced to him where necessary.
LAND RENT CLEARANCE CERTIFICATE

All leaseholds from the Government are subject to an annual rent that is payable by the grantee of the
lease. Before registering a transaction involving leasehold land, the grantee must show that all land rent
has been paid to the Government. E.g. Before registering a transfer (of a leasehold interest), the vendor
must obtain a Land Rent Clearance Certificate which is a document certifying that all land rent due has
been paid. S.86A RLA - provides that the Registrar shall not register a transfer unless a Land Rent
Clearance Certificate is produced to him where necessary.(Note: No LRCC is necessary where land is
freehold)
Examples of other transactions where a LRCC is required for leasehold land: Lease, Charge.
CONSENTS
There are quite a number of consents in conveyancing to ensure the success of the transaction.
Different transactions however require different consents and occasionally some will over-lap.
Reflection: what is the rationale behind the various consent?
1. Consent from the County Land Management Board

The Registrar shall not register an instrument effecting a transaction unless satisfied that any consent
required to be obtained in respect of the transaction has been given by the relevant County Land
Management Board on the use of the land, or that no consent is required (section 39(2) of the LRA). This
includes paying all outstanding land rent. It will be applicable only to leasehold properties and not
freeholds. .
2. Land Control Board Consent
This applies to all land designated as “agricultural land” under Section 2 of the Land Control Act (Cap
302) Laws of Kenya [Reflection: what is “agricultural land”?] and is required for all transactions touching
on and concerning such land. The particular transactions are outlined in Section 6 of the Land Control
Act. The consent is granted by the local Land Control Board on application by both parties to the
transaction. The application is made in a prescribed form and consent also issued in a prescribed form.
User of both forms is mandatory. Transactions touching on and concerning agricultural land will be
exempt from the Land Control Board Consent if the President so directs or if it is a transmission or if the
Government is a party. The application to the Board must be made within six (6) months from the date
of the transaction otherwise the transaction is null and void: Simiyu –vs- Watambamala 1985 KLR
252, Karuri –vs- Gituru 1981 KLR 247, Jacob Minjire –vs- AFC, Njamunyu –vs- Nyaga 1983
KLR 282.
A case in point is Nelson Githinji et al vs. Munene Irangi 9 where the court of appeal categorically
stated that the effect of section 6(1) of the Act was to render null and void any transaction, sale, transfer
or other disposition or dealing in agricultural land situate in a land control area without a Land Board
Consent.
Facts
The suit land was agricultural land, but the consent of the Land Board was not obtained. There was
supposedly an arbitration, which recommended that the superior court should order the appellant to
transfer the suit land to the respondent without delay. On appeal;
Held
The transaction for which the respondent sought specific performance required the consent of the
relevant Land Control Board. This was a legal requirement. The effect of the arbitrator’s award was
to grant the respondent the specific performance he sought. If no consent of the relevant Land
Control Board was obtained, then that award was illegal.
9 Civil Appeal No. 133 of 1987 at Nyeri

Jacob Minjire –vs- Agriculture Finance Corporation

AFC, exercising chargee’s power of sale sold land to the appellant in a public auction. The buyer paid
the purchase price but AFC failed to transfer the land. Meanwhile, the original owner of the land (the
chargor) redeemed the land. Consent of the Land Control Board had not been obtained in respect of the
auction sale.
Held:
1. Consent of the Land Control Board is by statute, made a term of the contract, non-compliance
of which vitiates the contract.
2. Where a controlled transaction becomes void for lack of consent of the Land Board, the Act
gives an innocent party a special cause of action, which gives him a remedy independent of the
void transaction.
3. Consent has to be applied for within three months from the date of agreement.
4. Neither special nor general damages are recoverable in respect of a transaction that is void for
want of consent.
3. Other consents include:

Consent of the Railways Corporation (for land adjacent/adjoining railway lines),Consent of Kenya Airports
Authority (for land adjacent/adjoining the airports or flight paths), consent of chargee (see Section 59 of
the LRA), Consent of Lessor/Landlord section 55 &56 of the LRA.[Reflection: Whose responsibility is it to
obtain the requisite consent? Which consent(s) may you require to transfer a free hold property? And an
Apartment under a Sub-Lease? What are the consequences of not obtaining a requisite consent or
clearance certificate?]Unless otherwise agreed it is the responsibility of the person who intends to dispose
of the interest to obtain the consent.
The Consent of the Kenya Railways

For any land adjacent to or adjoining the Railway land, the consent of the Railways Corporation is
required prior to any dealing in that land. Cap 397 – Kenya Railways Corporation Act does not provide for
the above requirement.
Most of the time when one applies for this consent, one is required to pay cess to the Corporation before
being granted the consent. The Deed Plan to most properties reveal a Railway Line running through
some parcels of land. This consent would be in addition to the LCB consent if applicable.
The Consent of the Kenya Airports Authority

This consent is issued by airport owners for all properties which may be adjoining flight paths. The whole
purpose of this is for the authority to find out what one wants to do with the property. One is given a
questionnaire to fill in. One must consult before doing anything on the land.
The Consent of the Landlord [Lessor’s Consent]

This refers to one who has obtained leasehold from Government (head lessor) and wants to sub lease it.
This is found in sub-leases. One will need the consent of the Landlord. Aimed at ensuring agreements in
the lease are honoured as well as all rent being paid.
The Consent of Trustees of National Parks

Properties adjoining or within parks require this consent prior to any conveyancing transaction involving
such land. The Kenya Wildlife Service is the Trustee of such parks. This is to ensure there is no
derogation of title.
1. These consents are required to complete any given transaction. In the absence of these consents
the conveyance e.g. lease, mortgage etc will not be registered
2. Condition 16 of the LSK provides that for purposes of completion, all necessary consent must be
obtained by the vendor/lessor (he who is parting with the interest). In most agreements in
practice, the person obtaining the interest is given a duty to assist in obtaining the consent
especially where both parties presence is required.
3. If the consent is not availed or obtained one will be held to be in breach. Unfortunately, the
person who is aggrieved has remedies in damages only. There is no room for specific
performance because as long as the consent is not given within the specified period, the
agreement lapses
See: Mucheru v Mucheru [2002] 2 EA 456

The CA held that if LCB consent is not obtained the transaction becomes void even if the duty to obtain
the consent was not exercised.
Facts: The respondent filed suit seeking an order to bury a deceased husband on the property in the
control of the appellant who was the widow of the registered proprietor. The respondent claimed that her
deceased husband was entitled to a portion of that property under Kikuyu customary law. The
respondent proved trust under the customary law and that the administrator was to obtain LCB consent.
The court held she was entitled to the portion subject to the LCB consent.
The CA held that the establishment of a trust is a disposition of property within the requirements of s.6
LCA and the LCB consent was necessary. Having not been obtained within the required time i.e. 6
months, the whole disposition was void
Jacob GichukiMinjire v AFC CA 61 of 1982

AFC sold Dagoretti/Riruta/1139 to the appellant at a public auction where the appellant was the highest
bidder. The appellant paid 255 deposit but no agreement was signed as per s.3 of LCA. AFC refused to
complete despite payment of the balance of the bid price within the required 30 days. The appellant sued
for specific performance but AFC contended that the land was agricultural and a controlled parcel leading
to the auction being a controlled transaction as per s.6(2) of the LCA and the sale was consequently void
for all intents and purposes as no LCB consent had been obtained or an application filed within 6 months.
Held: No specific performance would be granted because:
a) Property had already been redeemed. Equity could not act in vain
b) No LCB consent was
obtained Bosire J said:
“The lack of statutory consent at the expirty of the 3 months makes the transaction void for all purposes
until then there is only a de facto agreement which has no legal effect”
DISPOSITION IN LAND
Generally disposition is a transfer of an interest in land.
STAGES IN DISPOSITION
Having discussed the subject of disposition it is important to note that dispositions usually happens in two
stages
⚫ First- contract for sale
⚫ Conveyance
The latter stage is where the transfer of an interest in land takes place.S 54 of the repealed ITPA and S3
RLA do not consider a contract for sale of land as transferring interest in land. Why is it important
therefore?
WHY CONTRACT?
• It deals fully with the matters that must be dealt with between the date of the contract and
completion; crystallizes the position of the parties;
• It binds the parties to the sale, prevents last minute withdrawal by either party and facilitates
completion;
• Parties may use it to confer special advantage on themselves;
• It may be used to transfer the legal interest on chattels so as to reduce the duty payable at the
completion stage;
• It provides for the resolution of any disputes that may arise between the date of the contract and
completion;
• It provides remedies for breach;
• It gives the purchaser time to investigate the title;
• The equitable doctrine of conversion is applicable to these kinds of contracts;
• It makes the transaction enforceable-S. 3(3) of the Law of Contract Act.;
What is the difference between agreement to sell land and a contract for sale of land?
NATURE OF CONTRACT FOR SALE OF LAND

A contract to sell or make any other disposition in land is made in the same way as any other contract:-
⚫ An agreement for valuable consideration between the parties on the essential
terms. 3 types of contracts- simple, evidenced in writing, formal
It is important to note that although a valid contract relating to land may be made orally, it will be
unenforceable i.e. by action.
INGREDIENTS OF A VALID CONTRACT

There must be a final, complete, written contract on at least the essential terms:
⚫ Offer
⚫ Acceptance
⚫ Consideration
⚫ Capacity
⚫ Intention to create a legal relationship
Reflection: what if an offer is accepted “subject to contract?” or “subject to suitable arrangements being
made between your solicitors and mine”
VALIDITY VERSUS ENFORCEABILITY

A valid contract is one with the ingredients described above
What about an enforceable contract? Prior to 2003 S3(3) of the Law of Contract (LAC) provided as
follows:
“ no suit shall be brought upon a contract for the disposition of an interest in land unless the
agreement upon which the suit is founded, or some memorandum or note thereof is in writing and signed
by the party to be charged or some person authorized by him to sign it.
Provided that such suit shall not be presented by reason only of the absence of writing, where an
intending purchaser, or lessee who has performed or is willing to perform his part of the contract:
a. Has in part performance of the contract taken possession of the
property or any part thereof; or
b. Being already in possession continues in possession in part
performance of the contract has done some other act or in
furtherance of the contract
ENFORCEABILITY
The requirement for writing was introduced in a 1968 and was borrowed from the Statute of Frauds of
1677. This requirement of writing was often defeated by the application of the equitable doctrine of part
performance. An amended was introduced on 1 st June, 2003 vide Act No. 2 of 2002. Section 3(3) was
repealed to read as follows:
⚫ No suit shall be brought upon a contract for the disposition of an interest in land unless:
⚫ The contract upon which the suit is founded –
i. Is in writing
ii. Is signed by all the parties thereto
⚫ The signature of each party signing has been attested by a witness who is present when
the contract was signed by such party.........
After this amendment, the requirement of writing is absolute i.e. for a contract to be enforceable it must
be in writing.
Reflection
⚫ What of the many transactions in rural Kenya and elsewhere which maintain oral or
memoranda as a formal of contract?
⚫ Have we effectively locked out the equitable doctrine of part performance?
JUDICIAL INTERPRETATION OF S3 (3)

Prior to the amendment of 2003
1. Morgan vs. Stubenitsky(1977)KLR 188- It was held that though the memorandum
was signed it was devoid of the envisaged terms, therefore there was no agreement
capable of satisfying s3(3) of LCA
2. Wagiciengo vs. Gerrard (1982) CAN 336. It was held that 2 unsigned documents
(one contained terms of the agreement, the other a schedule of payments received) in
the defendant’s handwriting, satisfied the requirement of S3(3) of LCA
Post 2003 amendment
Kenya Institute of Management vs. Kenya Reinsurance Corporation 2008 eKLR
The defendant had advertised its property (South C Sports Club) for sale in the newspaper; the plaintiff
made an offer, entered into negotiations and agreed on a price. The Plaintiff sought financing but by then
the defendant had sought to withdraw from the transaction. Though the Court found that no agreement
within the meaning of S 3(3) existed, it granted the injunction on the basis of high handedness of the
defendant.
Mumias Sugar Co. Ltd vs. Freight Forwarders (K) Ltd Nairobi 2005 eKLR- It was held that S 3
(3) conditions were not satisfied.
No action may be brought- the effect of non-compliance with this provision is not to make the contract
void but merely make it unenforceable.
To deprive a party to a contract of his right to bring an action upon it is to deprive him of one of his most
important rights.
Reflection:
Is it true that the provision does not bar the contract from being enforced in any other way except by
action?
CONTRACT FOR SALE OF LAND

TERMS
It is open for the parties to make a contract as they deem fit. In practice certain standard forms of
conditions have been settled on. The Law Society Conditions of Sale (1989 edition) outlines various terms
and conditions for the sale of property.
TERMS IMPIED BY STATUTE, S.55 OF THE REPEALED ITPA
Vendor is bound Buyer is bound
To disclose to the buyer material latent To disclose to the seller info which
defects in the property increases the value of the property
To produce upon request title documents Pay purchase price on completion
Answer to the best of his information all If sold free of encumbrances, retain
relevant questions from the buyer part of purchase price to cover
encumbrances
On payment of the purchase price, When property has passed to him bear
execute a conveyance losses on the property not caused by
Other are seller terms
in S found
Between the date of the contract of sale Where property has passed to him, pay
of 46-48
and delivery of the property take care of all public charges, rent etc
the property and title
documents(Dharmshi V Abdul Reikhman
(1950) 204 KLR
To give possession of the property when

required
Pay public charges and rent

Sectional Properties Act- for sale of sectional properties.Remember the terms must be certain
⚫ Read Michira vs. Gesima Paper Mills Ltd (2004) EA 168
⚫ The entire agreement was held to be void for uncertainty
SALE AGREEMENTS
1. What is the position of the vendor and the purchaser?
It has been stated that the vendor becomes the trustee for the purchaser between the time of
execution and completion of the sale agreements. Do statutes support the statement?
2. What sort of sale agreement is acceptable to my client? A simple agreement or a complex one
with damages etc
In the case of short/simple agreements, one leaves himself open to implied provisions and the
courts mercy. The complex agreement covers more issues. There is no statutory requirement for
the format of a sale agreement.
One may opt for a hybrid agreement, not too simple and not too complex depending on the
circumstances. Do not include irrelevancies.
3. The agreement must comply with any statutory requirements. These include:
(a) The Law of Contract Act (s.3)
(b) Other statutes will vary depending on the circumstances
4. A sale agreement is a contract and one must ensure that the agreement is in tandem with all the
Law of Contract principles of:
- offer and acceptance
- intention to be bound
- consideration exchanging hands
- the contract is certain
Under the statute, there are three basic requirements that relate to the form of the agreement: Cap 23 –
Law of Contract Act (s.3)
(i) The agreement for sale of land to be enforceable must be in writing. This applies to all
dispositions of interest in land.
(ii) The agreement must not only be signed by both parties but the execution must be attested/
witnessed in the presence of the person attesting. This requirement runs across e.g. for a
charge includes attestation of the facility letter.
Where do you sign?
Practice dictates that you sign at the end but since the purpose of the execution is to
authenticate the document it can be anywhere as long as it is witnessed.
(iii) The terms of the agreement ought to be in one document – s.3 seems to allow incorporation
of terms by reference. Although the reference is in the one document. In the UK, there can
be more than one document.
-
Question then is: Why do we draft and title the as “a contract for sale” or a “a sale agreement”? What is
the difference anyway between a contract and an agreement or there is no difference?[ cf. Lord Diplock’s
reference to “bisynallagmatic” associations as distinguished from “mere concordance of opinions”] . An
agreement to sell land is basically a contract. The next question perhaps thus that one would want to ask
himself is what sort of agreement is he to draw: a “pigs, whistles and all” or a “mini skirt” agreement? It
is recommended that a hybrid of both be adopted, instead of either. Finally there is the need to ask and
answer the question: what is the nature of the relationship that exists between the parties during the
period between the execution and completion of the contract ( See: Derry vs. Peek, Shaw vs.
Forster)?
As an agreement is a contract compliance with the basic tenets of the Law of Contract is necessary and
so is compliance with the provisions of the Law of Contract Act (Cap 23) Laws of Kenya as well as
Sections 38 through 42 of the Land Act 2012.
A good and enforceable agreement will thus not only exhibit offer, acceptance, intention to be bound,
capacity, consideration and certainty (see: Michira vs. Gesima Power Mills Limited, 2004, 2 E.A.
168) in the terms but must also be in tandem with the provisions of Section 3(3) of Cap 23.[This section
of Cap 23 is a must read for anybody aspiring to be an advocate]. In the latter case of the Act the sale
agreement must be in writing, signed by both parties and their signatures attested to. The terms of the
agreement apparently need not however be in one document. Terms may be incorporated by reference
(eg. the Law Society Conditions of Sale being made to apply). Sections 54 and 55 of the repealed ITPA
also had certain implied terms which in the absence of contrary agreements applied to open contracts.
The Sectional Properties Act [Cf. ss 47 through 49] however dictates particular matters which must be in
the Sale Agreement where a sectional unit is being sold. The agreement must of course also not be
tainted with any illegality as the maxim ex turpi causa non oritur actio will be invoked. Neither must
the agreement be unconscionable. The new statutes have however kept faith with the doctrine of
freedom of contract and not prescribed any specific terms or conditions to be incorporated in any
contract.
It is possible though that the parties may have some pre contract negotiation documents in place and
prior to actual execution of the contract. These include Heads of Terms, Term Sheets, MOUs and Letter
Agreements [what are they and are they binding once executed? Can either party enforce the same in a
court of law or equity?]
In general an ordinary Sale Agreement will contain five parts namely: the parties, particulars of sale,
special conditions, general conditions and execution.
An agreement must at whatever cost be certain. If agreement is not certain even if one
complies with statutory provisions the agreement will be void. See: Muchira v Gesima Power
Mills Ltd (2004) 2 EA 168
The COA held that any agreement that contains uncertain clauses is void and specific performance or
reliance on it for any remedy will not be allowed.
Facts: The vendor sold land to the purchaser for 10 million. The parties themselves drew the agreement.
The execution was witnessed by a qualified advocate. 10% deposit was to be paid on execution, 20%
later and balance within 90 days or when the title was produced in the purchaser’s name. Possession was
to be granted on completion or when 20% was paid. Inter alia damage on default was 40% of 10 million.
The purchaser alleged default and sued for 4 million.
Held: The CA held that the agreement was not enforceable even though it had met all the statutory
requirements. There was no consensus ad idem as there was no clear provision as to when the balance
and possession would be given. The agreement was uncertain and specific performance could not issue.
NOTE: Why didn’t the court get rid of the uncertain provisions? It did not have a ‘saving clause’ in case of
inconsistency
CONTENTS OF A SALE AGREEMENT

1. Parties
2. Particulars of Sale
3. The General Conditions
4. The Special Conditions
5. Execution
Parties: This is self-explanatory. The parties to the contract as well as their addresses must be
properly stated in the contract. The address is crucial in the event that there will be need to issue a
notice to either party. It is important that the parties to any contract are properly identified.[It is not
necessary that only parties to a contract are those who must get some benefit there from or shoulder
some obligation]
Particulars: This entails a description of the subject property. Both the physical and legal description
of the property are given in the particulars of sale. Encumbrances, if any, also constitute part of the
property definition. Occasionally, fixtures and fittings will form part of the particulars of sale. Finally
the consideration (purchase price) will be part of the particulars.
The position on encumbrances i.e. the property is sold free of encumbrances. If there is an
encumbrance, you must indicate who is to service the loan/discharge the encumbrance. You must state
that the purchase price will be used to offset the balance of the encumbrance/loan. Avoid allowing the
clause “sold subject to all encumbrances…”
Special Conditions
These are those terms which are peculiar or specific to and relevant to the contract in question. They
will involve issues of vacant possession, deposit, fixtures and fittings, remedies in the event of default,
contract being subjected to a mortgage facility, variation of general conditions, etc.They are those
conditions which apply sui generis to each agreement. They are being extended to mean the variations
of the general conditions. For this reason it forms a separate part of an agreement.
Examples
- where the contract price includes the value of the fixtures and fittings sold separately
- where the fact is that the property is sold subject to a mortgage
- where the fact is that the sale agreement is conditional upon the vendor receiving duly sealed
letters of administration or probate
In such cases you may have a clause titled special conditions. A sale agreement (if the LSK conditions
apply) will be completed within 42 days of obtaining consent. This is a special condition which varies the
general conditions of sale.
General Conditions: These are terms which in the absence of any specific terms apply generally to the
open contract. They came from implied terms which have been complied together from common law,
equity as well as conveyancing practice generally. Section 55 of the ITPA contains examples of such
general terms. Likewise the LSK Conditions of Sale now in its third edition is an assembly of the general
terms and conditions. The general conditions apply also to fill up gaps in a contract and cover a variety
of matters e.g. Regulating right to rescind, preparation and content of transfer, possession and grant,
deposit and forfeiture, notices and completion. The Sale Agreement will always be drawn by Vendor’s
Advocate (see Salim –vs- Okongo, 1976 KLR 42, LSK Condition 24).
Note: Fixtures and fittings – Case Law- Melluish –vs- BMI (No. 3) Ltd 1996 AC 456
- Ellitestone –vs- Morris 1997 1 WLR 687
- Leigh –vs- Taylor 1902 AC 157
- Wake Vs Hall (1882 ) 8 App Cases 195
The answer to the question whether a structure or an item has become a part and parcel of the
land itself depends on the degree of annexation as well as the object and purpose of annexation
and the test is objective. Land is no longer looked at from the perspective of that latin maxim of
quic quid plantatur solo solo cedit. It may be critical to ensure that one adequately provides for
fixtures and fittings in any Contract as they may affect the stamp duty payable.
Deposits - LSK Condition 3

- Stakeholders & Agents as Holders
- Universal Corporation –vs- Five Ways
Properties 1997 1 All ER 254 (on return)
- Workers Trust –vs- Dojap Investments 1993 2 All ER
370
(as to forfeiture of more than the customary 10%
deposit in the event of default by the Purchaser and the
need to liquidate the damages)
Deposits are not only part of the purchase price but are also earnests or guarantees on the part
of the Purchaser to complete the transaction. They entitle the Purchaser to a lien over the land
once paid. Note too the fact of the courts being extremely jurisdictional in a purely contractual
situation [should not a deposit constitute only a genuine pre-estimate of damage and no more?
How can we reform it?]
Completion - LSK Conditions 2 & 4

- Barclay –vs- Messenger 1989 3 All ER 492(time of the essence)
Notice to complete - Efficacy & Validity: must be explicit and leave no
doubt that giver will rescind agreement if notice is not
honoured. Giver must be ready able and willing to
complete.
- LSK Condition 28
Completion time - Duty of Vendor: to deliver

(i) Vacant possession and
(ii) Completion documents.
What is vacant possession? Property must be:
- Free from physical impediment
- Free from any form of occupation
- Duty of Purchaser: to inspect completion documents,
authorize release of deposit and deliver balance of
purchase price.
[Reflection: What are the dangers of electronic drafting and negotiation of

contracts?] See also Hand outs - Steps commonly taken by Buyer’s Advocate
- Steps commonly taken by Vendor’s Advocate
- Checklists – acting for Vendor
- acting to Purchaser
- Model Sale Agreement Clauses (for class discussion)
- Deposits & Completion
- J. M. Kibuchi on LSK Conditions of Sale
MODEL SALE AGREEMENTS

Parties
If a company the description should have successors and assigns, if a society it should be registered
under the Societies Act, if personal it should state personal representatives and assigns and it should
state the agreement is between X & Y
Definitions and Interpretations

Vendor and purchaser, singular and plural, definition of person to include legal and artificial persons,
headings etc
Incorporation of LSK Conditions for Sale
It is not mandatory to incorporate them. You could exclude some or allow some or include all. You can
also vary the LSK conditions and you can add more details. You must specifically state which LSK
conditions to incorporate i.e. 1972, 1982, 1989. NOTE – there is a need to amend the LSK conditions
especially in light of new developments.
WHAT SAFEGUARDS ARE CONTAINED IN LSK CONDITIONS TO SALE TO

PROTECT PRACTITIONERS FROM LAND FRAUD?4
Agreement for Sale and interest sold

You incorporate the offer and acceptance i.e. vendor agrees to sell and the purchaser agrees to buy.
Special conditions
Sui generis clauses
Variation of general conditions
Capacity
Legal competence for a person to sell e.g. if selling as an attorney, administrator, agent, beneficial owner
Purchase price and Deposit

That is consideration that supports the contract. State it explicitly. If by way of gift, it should be so
stated. It must also state the acknowledgment of receipt of the consideration. Deposit is ordinarily 10%
of the purchase price and ought to be paid before or on execution of the contract.For deposit state when
it is to be paid, by who and to whom.
Completion documents
That is the purchaser is to deliver the purchase price and the vendor is to deliver the completion
documents. The date of completion must be stated i.e. time is of essence. Provide for place of completion
usually at the vendor’s advocates office. Where there is a financier, a professional undertaking is given
instead of the money/cheque. One also has to state vacant possession. Completion documents include
title documents, Clearance and Consent certificates, executed transfer, photos, consents, stamp duty
valuation forms.
Assignment Clause
That is the transfer of the whole interest in the property. This is also referred to as the conveyance
clause in a sale agreement. Assignment may be of the transfer or of the obligations and rights of the
parties.
4
Q1-2008
Default Clause
On omission or failure to perform a legal or statutory duty under the contract. This clause addresses what
happens in the event of breach e.g. in case of default, a party will pay a specified liquidated amount in
damages.
Non merger Clause

The clauses should be read as distinct and separate such that in the event that one is null and void, it
should be severed and will not affect the others. At completion it was deemed at common law that
everything is closed such that if there were any other agreements they would be closed i.e. do not inherit
obligations of the vendor at the completion of the sale agreement. The agreement does not merge the
sale agreement with the conveyance itself. Read LSK condition 27.
Stamp Duty and other related costs

This is based on the value of the property in question. Registration charges are paid at the lands registry
and are not pegged on the value of the property. The advocates fees must also be catered for and each
party bears the cost of their own advocates, (if a purchaser is obtaining advances from a financial
institution, the costs are borne by purchaser). Search fees to confirm registration of the property in
purchaser’s name. LSK condition 30.NOTE: Stamp duty is usually paid by the person acquiring the
interest. Commissions should be given negative obligations i.e. the vendor shall not be liable for any
commissions whatsoever.
Disclaimer
Provides for under the LSK Condition 14 clause 5. It embodies the caveat emptor doctrine i.e. buyer
beware. It is the equivalent of an exclusion clause stating the vendor shall not be called upon to point out
irregularities in the property. (Q. Whose interest is being protected? One needs to inspect the contract
and carry out pre-contract inquiries)
General
One needs to put any general obligations in this clause. One may put saving clauses, how and when
payment is to be made, whether the amount would be net or gross. One may also include a clause on
whether the agreement, if it is to be varied, should be varied in writing or any other way.
Intention to be bound
This is a conclusion to the agreement where the parties are of one mind. It is just before the execution
clause. It is the parties affirmation to the contract especially in relation to the law of contract act.
Miscellaneous clauses and provisions
1. if a party has not exercised their right or power or remedy does delay in exercising such a right
or power that does not mean that they have waived the right; Partial exercise of the right or
remedy does not mean that you are not entitled to further exercise of such a right.
2. The remedies are cumulate and not exclusive of any remedies provided in law (law of contract)
3. That if any term or condition in the agreement shall be found invalid and unenforceable this does
not invalidate all the agreement, the rest of the terms and conditions of the agreement shall be
valid and enforceable to the fullest extent permitted by law. In such a case you do a variation of
that clause by a further agreement which is to be annexed to the original agreement.
Execution
This is the affixation of one’s mark on the document. It may be by way of signature, thumb print or a
duly appointed attorney of a company or by a common seal. The parties have to authenticate the
document. One must state the capacity in which the parties are executing the document.
SALE AND PURCHASE OF LAND

STEPS COMMONLY TO BE TAKEN BY SELLER’S ADVOCATE
1. Take instructions from Seller.
- Take Sellers instructions including details of proposed, of related purchase, authorization
to disclose details in chain transaction, replies to pre contract inquiries etc.
- Check conflict of interest issue.
- Discuss fees, disbursements, taxation matters and confirm instructions.
- Check and confirm that proceeds will clear any encumbrances.
2. Draft initial letters

To agents, to client, to Buyers Advocate etc.
3. Obtain Title Deeds from Seller and other documents necessary for purposes of sale which are
available immediately. If property is leasehold address following issues:
- is consent required? From who?
- What are the outstanding outgoings?
- Will the freehold or leasehold be deduced?
4. Draft and reconfirm with Seller answers to pre contract inquiries.
5. Draft the Contract and dispatch to Buyer’s Lawyer with copy to Seller for approval.
Send also to Buyer’s Advocate
- copy or abstract of the Title
- reply to pre-contract inquiries
- copies of relevant planning consents, covenants, easements, licences, insurance
certificates etc.
6. Engross the Contract (Sale Agreement) on receipt from Buyer. If amendments

proposed then consult with Seller before engrossing.
7. Return Contract to Buyer for execution or signature.1

8. Receipt and deposit in the client account any deposit payable.
9. Confirm deposit cheque has been honoured and ask Seller to execute Contract.
10. Return counterpart copy of the Contract to Buyer’s Advocate.
11. Advise Seller that he had a continuing duty of care towards the property and should take
reasonable care to ensure that the property remains in the state in which it was at the date of the
Contract.
12. Reply to any requisitions on title. Attend to specific queries or objections raised by Buyer.
13. Peruse and approve the Draft Conveyance and return the approved or revised Conveyance.
14. Prepare for the redemption of any Mortgage(s). Contact Mortgagee and send Discharge with
undertaking.
15. Prepare a Completion Statement. Purchase price less deposit paid add apportionments (and
interest?).
16. Arrange for execution of the Conveyance.
17. Arrange for and host completion meeting.
18. Report completion to Seller and Estate Agent and authorize release of keys to Buyer.
19. Redeem Mortgage(s)

Comply with and satisfy undertakings and obtain release from undertakings.
20. Account to client for proceeds of sale. Full purchase price less Mortgage redemption Less
commissions to Estate Agent Add apportionment (and interest?) Less Advocates fees. Pay net
to Seller.
2
STEPS COMMONLY TO BE TAKEN BY BUYER’S ADVOCATE
1. Take instructions from Buyer.
2. Consider conflict of interest.
3. Discuss and agree on fees.
4. Receive and deposit the Deposit in the client account.
5. Liaise with Buyer as to his financial arrangements and send a letter to Buyer on desirability of
having a survey and/or physical inspection of property and determine appropriate completion
period.
6. Advise Buyer on taxation matters i.e. rent, rates, V.A.T and stamp duty implication on the
transactions.
7. Consider Surveyors or Valuer’s Report.
8. Deal with planning matters.
9. Make pre-contract searches and enquiries.
10. Consider the draft Contract and raise pre contract enquires of the Seller.
11. Investigate Title and raise requisitions.
12. Consider Seller’s replies to pre contract enquiries and requisition. Consult on same with Buyer.
13. Amend draft Contract as necessary and return to Seller.
14. Make preparations for the Mortgage Facility if Lender is separately represented and advise Buyer
on terms of Mortgage.
15. Engross or receive engrossment of Contract.
16. Arrange for execution of Contract.
17. Return engrossed and executed Contract together with deposit cheque to the Seller’s Advocate.
18. Receive counterpart Contract signed by Seller.
19. Draft Conveyance and send for approval and upon its return engross same.
20. Make pre completion searches.
21. Make further preparations for grant of Mortgage and ensure this is in place.
22. Arrange for execution by Buyer of
- Mortgage
- Conveyance and attestation of both.
23. Receive all monies (disbursements, fees, balance of purchase price and apportionments).
24. Attend completion and report to client.
25. Stamp Conveyance & Mortgage. Get Conveyance endorsed with assessed value.
26. Give notice to tenants.
27. Simultaneously with 26, lodge Conveyance for Registration.
28. Make post completion searches.
29. Account to client and release title documents to client.
30. Dispose of any other documents as instructed.
MAYENDE CONVEYANCING 61

CHECKLIST – ACTING FOR PURCHASER
(i) Full name(s) and address(es) of Purchaser(s)…..
………………………………………………………………………………………………
(ii) PIN No(s) …………………………………………………………………………………………………….
(iii) Telephone No(s)……………………………………………………………………………………………..
(iv) Is time to be of the essence? ……………………………………………………………………………….
(v) Does Purchaser want Vendor to point out beacons? …………………………………………………….
(vi) Does property have access? ……………………………………………………………………………….
(vii)Are there any shares in a water or management
company to be transferred? ………………………………………………………………………………...
Obtained Pending Comment

1. Obtain copy title deeds ………….. …………..
…………………...……………..…
2. Search the title ………….. ……………
…………………………………….
3. Is Land Control consent required? ………….. …………..
……………………………….……
(To be obtained by vendor)
4. Is Commissioner of lands consent
required? (vendor to obtain) ………….. ……………
…………………………………….
5. Is any other form of consent
required? (vendor to obtain) ………….…………… …………………………………….
6. Does client have deposit? ………… …………… …………………………………….
7. Is vacant possession going to
be granted on completion? If
earlier, on what conditions? ………….. ……………
…………………………………….
8. Are there any tenancies? ………….……………. …………………………………….
9. Is the Transfer document prepared? ………….……………. …………………………………….
10. Joint tenants or tenants in common? ………… ……………. …………………………………….
11. Have we collected Stamp Duty
and fees from client? ………… …………… …………………………………….
12. Have all completion documents
been received? Rates Certificate? ……….. ……………
…………………………………….
13. Has stamp duty been paid? ……….. ……………
…………………………………….
14. Has a valuation been carried out
by Government Valuer? ……….. …………...
…………………………………….
15. Has document been endorsed by
the Collector? ……….. …………..
…………………………………….
16. Are there any new encumbrances
On title?(Do a further search) ……….. ……………

…………………………………….
17. Is registration complete? ……….. ……………
…………………………………….
18. Has client’s title been
entered on the register? ……….. ……………
…………………………………….
(Do a further search)
19. Has the completion statement and
and fee note been prepared? ………… …………… …………………………………….

CHECKLIST – ACTING FOR VENDOR
Obtained Pending Comment
Tick or Cross where appropriate
1. Obtain title deeds ………….. ………….………………………………………………

2. Investigate the title ………….………….………………………………………………
3. Is vacant possession going to
be granted on completion? ………….………….………………………………………………
4. Are there any tenancies? ………… ………….………………………………………………

5. Has Purchaser paid deposit? ………… ………….………………………………………………
6. Prepare Agreement for Sale ……….. ………….………………………………………………
7. Is Land Control consent
required? ……….. ………….………………………………………………
8. Is Commissioner of Lands
consent required? ……….. ………….………………………………………………
9. Is any other form of
Consent required? ……….. ………….………………………………………………
10. Does notice to vacate to

occupants of property need
to
be served? ………… ………….. ………………………………………………
11. Has Rates Clearance Certificate

been obtained? ………… ………….. ………………………………………………
12. Has Stamp Duty Valuation

Form been prepared? ………… ………….………………………………………………
13. Has draft Transfer been

received? ……….. ………….………………………………………………
14. Has Transfer been received? ……….. ………… ………………………………………………
15. Undertaking required? ………. . ………….………………………………………………
16. Has registration been

completed? ……….. ………….………………………………………………
17. Received counterpart copy

of duly registered transfer? ……….. ………….………………………………………………
18. Has the completion statement

and fee note been prepared? ………. ………….………………………………………………
PROFESSIONAL UNDERTAKINGS
Common practice in banking and conveyancing transactions
What is a PU?- Encyclopaedia of Forms and precedents “any unequivocal declaration of intention
addressed to someone who reasonably places reliance on it and made by. a solicitor in the course of his
practice, either personally or by a member of his staff under which the solicitor becomes personally
bound”
Ingredients:
 Unequivocal declaration of intention by an advocate
 Addressed to someone
 Places reliance on it
 Made personally by an advocate in the course of practice or as an advocate or by a
member of staff
It is simply a promise made by a solicitor or on his behalf by a member of his staff to do or refrain from
doing something. It is one of the ways of completing a sale transaction.
WHY?
Given by lawyers to smoothen and hasten the process of transactions. They create bridges without which
a transaction may never be completed banks would not release funds without registration of transfer or
mortgage. The Vendor on the other hand faces the risk of losing his property to a purchaser who may fail
to release the purchase price after registration.
INSTANCES
 Vendor’s Advocates undertaking not to release the purchase price to Vendor pending actual
registration of the Transfer.
 Purchaser’s Advocate undertaking to hold completion documents to Vendor’s order pending
payment of the purchase price.
 Mortgagee’s Advocate undertaking to advance the loan upon registration of the Charge plus/or
transfer simultaneously.
 Mortgagor’s Advocate undertaking to pay the redemption amounts upon registration of the
discharge.
BRIDGING OF COMPETING INTERESTS
PUs involve arrangements for settlement such as

 Payment of purchase monies
 Loan funds
 Discharge of obligations
 Accounting to the other party for documents in return
An undertaking by an advocate is subject to supervision by the Court, the breach of which amounts to
professional misconduct which is enforceable in Court for breach of contract. Professional Undertakings
are based on mutual trust. The concept of implied undertakings as known in common law also applies
e.g. to return documents held should registration fail. Care should be taken in responding to requisitions
such that sufficient particulars of the specific charges or mortgages the subject of a PU should be given
e.g. avoid statements like “an undertaking will be given as to how outstanding mortgages will be dealt
with”- what if some mortgage not the identified before emerges after a search?
PUs ought to be given to professionals not to laymen. They ought to be in writing although no law bars
oral undertakings. The giver and recipient don’t have to be in an advocate/client relationship ( See
Bridge up Containers Services vs. Gichana Bw’omwando t/a Gichana Bw’omwando & Co.
Advocates, Misc. Civ. App. 386 of 2006).
Law Society of Kenya “Digest of Professional Conduct and Etiquette” provides that an undertaking shall
be in a form which is clear and once accepted by an Advocate shall bind him or his firm to the
undertaking and any breach thereof shall constitute professional misconduct”
Naphtali Radier vs. D Njogu & Co. Advs - An advocate is obliged by law as an officer of the Court
to honour his professional undertaking. Failure to honour= professional misconduct. In the UK- Advocates
cannot give uninsured undertakings. In Kenya advocates are faced with the dilemma of losing a client
(e.g. banks) or issue a non funded PU.
IS IT A CONTRACT?
It places both a legal and ethical obligation on the giver. In Peter Ng’ang’a Muiruri vs. Credit Bank &
Charles Nyachae t/a Nyachae& Co. Advocates (Civil Appeal No. 263 of 1998-Court of Appeal
Nairobi)- the Court held that an undertaking is a solemn thing, in enforcing it the Court is not guided
by considerations of contract but the Court aims at securing the honesty of its officers.
An undertaking must be clear, unambiguous and certain and without conditions precedents
• see Kenya Re V Muguku Muriu t/a MugukuMuriu& Co. Advocates (Civil Appeal No. 48
of 1994)
• See Kimaru J’s ruling in Pyrethrum Processing Co. Ltd vs. Rogers Shako Adv. HCC 148
of 2004- an undertaking is a form of trusteeship
• See Onyancha J’s ruling in David Muema vs. Victor Mulee (eKLR 2007)- undertakings
should be looked at from an ethical point of view
• See DK Thou & Co. Advs vs. Njagi Waweru& Co. Adv. HCC No. 209 of 2008- Justice Njagi
refused the Advocates’ arguments that he was entitled to a lien over the funds.
TYPES
• The granting advocate is able to personally fulfil the stated obligations e.g. “...to hold the
documents to your order returnable on demand. ”
• The granting advocate’s promise can only be fulfilled by the lawyer’s client (see the case of
HaritSheth t/a HaritSheth Advocates vs. K.H.Osmond t/a Osmond Advocates Civil Appeal No. 276
of 2001 CA NBI)
ENFORCEMENT OF PUS
Once it is determined that an undertaking exists and the same has been breached the recipient has the
following options jointly and severally;
• Co-operation with the undertaking party e.g. extending time
• Demanding compliance in writing
• Seeking enforceability through Court action –O 52 of CPR through an Originating Summons
• Reporting the matter to LSK for disciplinary action
• Undertakings can be enforced even if one is not the recipient-KCB V Mohammed MuigaiAdv
(HCC757 of 2003)
Thirteen principles, which are generally applicable to all undertakings, are set out below. It is hoped that
the principles as presented are clear and informative.
PRINCIPLES
1. An undertaking is any unequivocal declaration of intention addressed to someone who
reasonably places reliance on it and made by a Advocate in the course of his practice, either
personally or by a member of the Advocate’s staff whereby the Advocate (or in the case a
member of his staff, his employer) becomes personally bound.
1.1. There is no obligation on an Advocate either to give or accept an undertaking, nor can an
Advocate be required to stand guarantor for a client by way of an undertaking.
1.2. The Society does not recommend the giving or accepting of oral undertakings. Oral
undertakings can lead to uncertainty as to the nature and extent of the undertaking. Evidential
problems may arise. When oral undertakings are given, the lack of formality detracts from the
gravity which should be attendant on the giving of any undertaking. The Society recognizes that
an oral undertaking given by one person to another may be enforceable at law, but the Society
will not render assistance to a party seeking to enforce that undertaking as a matter of conduct.
1.3. Undertakings can be given even to lay persons. ( See KCB Limited vs. Adala 1983 KLR
467)
2. Failure by an Advocate to honour the terms of a professional undertaking is a prima facie

evidence of professional misconduct. Consequently, the Society will require its
implementation as a matter of conduct.
2.1The Society has no power to order payment of compensation or to procure the specified
performance of an undertaking if an Advocate declines to implement it. The Society will proceed by
way of disciplinary action for failure to honour the undertaking.
2.2. The Society will require an undertaking to be honoured by Advocates for so long as their names
remain on the roll and regardless of whether they hold current practicing certificates or not.
2.3. The Society has no power to order the release of an Advocate from the terms of an
undertaking. This is a matter for the court, or the person entitled to the benefit of the
undertaking.
3. An undertaking will normally be required to be honoured only as between the giver and
the recipient.
3.1The Society will normally require compliance with an undertaking only at the instance of a
recipient.
3.2. An Advocate cannot assign the burden of an undertaking (and thus claim to be released
from its terms) without the express approval of the recipient. ROA Otieno Vs AGN
Kamau & Co 134/03
3.3. The court will however not hesitate to enforce an undertaking on an application by the
recipient’s client. See: NaphtallyRadier vs. David Njogu t/a D. Njogu & Co.
Advocates HCCC No. 582 of 2003 (Nrb), Kenya Commercial Bank Limited vs.
Mohammed Muigai Advocates HCCC No. 757 of 2003 where the court held that
undertakings are not just given at the behest of clients but the recipient’s client takes the
benefit of the same and can enforce the same.
4. An ambiguous undertaking is generally construed in favour of the recipient.

4.1. Wording of the undertaking is very important. It has to be clear.
4.2. In interpreting an undertaking the court will not invite extraneous evidence or terms implied.
5. An undertaking does not have to constitute a legal contract to be enforceable in conduct.

5.1. No consideration is necessary for an undertaking to be enforceable in conduct.
6. An undertaking is still binding even if it is to do something outside the Advocate’s control.

6.1. Before giving an undertaking an Advocate must carefully consider whether it will be possible
to implement it. It is no defence to a complaint of professional misconduct that the
undertaking was to do something outside the Advocate’s control
7. An Advocate is responsible for honouring an undertaking given by a member of the

Advocate’s staff, whether admitted to the Roll of Advocates or not.
7.1. Where an assistant gives an undertaking, the conduct of the assistant may also be called into
question by the Society.
8. Where an Advocate in partnership gives an undertaking as an Advocate in the course of

practice, all partners are responsible for its performance.
8.1. A partner remains responsible for the firm’s undertakings even after that Advocate leaves the
firm or the partnership is dissolved.
9. An Advocate cannot avoid liability on an undertaking by pleading that to honour it would

be a breach of duty owed to the client.
9.1. Since an Advocate will be personally bound to honour his undertakings, it is essential for
the Advocate’s protection that the client’s authority to do so is given before the
undertaking is furnished. See the case of Kenya Reinsurance Corp. –vs- V. E. Muguku&
Co. Advocates (1995-98) 1 EA 107.
10. An Advocate who gives an undertaking which is expressed to be dependent upon the
happening of a future event must notify the recipient immediately if it becomes clear that
the event will not occur.
11. In addition to the Society’s power to enforce undertakings as a matter of conduct, the
court, by virtue of its inherent jurisdiction over its own officers, has power of enforcement in
respect of undertakings.
11.1Where undertakings are given by Advocates to court, the Society takes the view that
enforcement is a matter for the court; for this reason the Society will not normally
intervene.
12. An undertaking should not be given by an Advocate as an inducement to a client to
secure that client’s business.
13. The seeking by an Advocate of an undertaking from another Advocate which the first
Advocate knows, or ought to know, should not be given, may be deemed to be professional
misconduct.
13.01 Self explanatory.
13.02 Illegal undertakings intended for example to perpetrate a fraud should not be sought or
given.
ADDITIONAL NOTES
What is a completion notice?
The vendor has to ensure registration of the documents of conveyancing (even though the prime
obligation rests upon the purchaser) because it is only after registration that he can get paid. Therefore
he must follow the process through to ensure he is paid on time.
N.B ‘Completion’ doesn’t include/involve registration

What are land rates? What law empowers the municipal authority to charge land rates?
 Local Government Act
 Rating Act
 Land rent-payable to the Government
 Land Rates-payable to Municipal Authority
What is apportionment? This is the process of apportioning the rates and rent payable in case property is
sold midway through a particular year. So for example if rent charges or rate charges were Kshs 1000
for every year, then if the property is sold midway through that year then rent/ rates due will be Kshs
600. This is the process referred to as apportionment.
Interest chargeable on late payments accrues from the date of completion. Such interest should not be
punitive i.e. it should not be higher than the interest recommended by the Central Bank of Kenya as the
base lending rate.
Exam Focus: List 5 or 6 Completion documents. These should be prioritized in the following order
Original Title Documents

Clearance Certificates-These should also include: demand notes from the local municipal authority for
payment of land rates, bank cheques showing that you have actually paid monies due, receipts
evidencing payment of rates/rent.
Consents
Transfer Documents (In Triplicate)
Requisitions are enquiries raised by the purchaser after a Search.

Exam Focus: List down and explain 3 conditions found in a contract of sale agreement.
DEPOSITS
It is usual for a contract to provide for the payment of a deposit by the Purchaser upon or before
execution of a contract. A deposit is part of the agreed purchase price. There is however no common
law provision entitling the Vendor to demand or require the Purchaser to pay a deposit. Indeed Section
55 of the ITPA provides for the purchase amount to be delivered on completion. Therefore a special
condition to this effect must be inserted in the contract. This customary requirement has however seen
the Law Society of Kenya Conditions of Sale provide expressly for the same at Condition 3, effectively
meaning that even if not expressly provided for as a special condition it will be implied unless expressly
excluded. The Law Society of Kenya Conditions at the interpretation part has also adopted the customary
“10% of the purchase price”. Thus a “deposit” is defined as:
“ten (10) per centum of the purchase money excluding the price of movables, livestock,
chattels, fittings and other separate items Law Society Conditions of Sale.”
It is thus basically implied in each contract in Kenya. You can however contract out of it by way of a
special condition and this is often done especially where the Purchaser is being fully financed.
The amount of deposit (i.e. the customary 10%) can also be varied but care is to be taken not to accept
anything less once the variation is effected. Thus if you agree on 20%, as the Vendor’s Advocate you
should not take 10% otherwise liability for any losses on your client may befall you.
Payment is ordinarily made to the Vendor’s Advocate or to the Estate Agent who introduced the
Purchaser. The Law Society of Kenya Conditions require payment to be made by bankers draft but it is
now perfectly acceptable to take a client account cheque and it is to be banked in the client account too.
From client account to client account. Where the deposit amount exceeds Kshs. 1,000,000/= payment is
to be effected by way of electronic transfer or RTGS. Often this payment has been varied to be made to
the Vendor and this may be pretty risky. There is need to provide very carefully in such situations; like in
estate covenyancing or sales by developers.
None payment means that the contract if already signed is repudiated upon notice. It is however always
paid before the Vendor signs the contract and care needs to be taken to ensure that the cheque is
cleared upon presentment.
NATURE
A deposit is security for completion. It is an earnest to bind the bargain and the fear of its forfeiture
creates a motive on the part of the Purchaser to complete. The Purchaser will not capriciously change his
mind. It sort of guarantees performance. It thus helps in assuring all that its forfeiture in the event of a
default is not a penalty but rather an agreed loss.
Non-payment of a deposit as agreed means there is fundamental breach of the contract on the part of
the Purchaser and the Vendor is entitled to rescind the contract. Under the Law Society of Kenya
Condition 3
Rescission will only take place after notice to the Purchaser. A deposit also counts as part of the purchase
price on completion. The Purchaser’s advocate is at completion expected to formally authorize the release
of the deposit to the Vendor. Deposits also help create the symbiotic relationship between the Purchaser
and the Vendor. It helps to entitle the Purchaser to a lien enforceable by the courts over the property.
CAPACITY OF HOLDER
Under the general conditions (LSK Cond. 3), the holder of the deposit whether Estate Agent or Advocate
always holds the same as a stakeholder. The agreement can however provide that you hold as agent
for the Vendor. As an Agent, you hold the money to the order of the Vendor whether you are acting for
the Purchaser or the Vendor himself and the Vendor in such a case has a proprietary interest in the
funds. Upon his demand you have to release to him unless the agreement specifies otherwise. In such
cases the funds may be utilized to his benefit i.e. clear outgoings without necessarily asking for provision.
A Stakeholder holds the deposit to the order of both parties. He holds the same in trust to ultimately
deal with it in different ways in different contingencies. Pay to the Vendor if the sale is completed. Pay
to the Vendor if the Purchaser defaults. Return to the Purchaser if the Vendor defaults. Safety is the
Stakeholder’s responsibility. You mishandle the same you pay it. You deposit it in a “collapsing” bank
you pay. Deposit it in a client account unless urged to do otherwise by the parties. As neither the
Purchaser nor the Vendor has any proprietary claim any interest earned can actually be kept by the
Stakeholder (as reward for holding the stake?) Unless the contract states otherwise, as a stakeholder if
the Purchaser consents you may use it as another “earnest” for the purchase of another property. In the
event of insolvency of holder various difficulties may arise. Who bears the loss? The Vendor or the
Purchaser? It there is a binding contract the Vendor bears the loss as he “who nominates the principal
accepts the risk”. If it is insolvency of the Vendor, the Stakeholder must refund the Purchaser. If there
is insolvency of the vendor and the deposit is held by an Agent then the Purchaser loses out as the
money was, strictly speaking, the Vendor’s.
FORFEITURE
If the Purchaser is in breach of the contract and is unable to complete the contract, the deposit is
forfeited to the Vendor even if held by a Stakeholder. The Vendor is also discharged from the contract.
The Vendor may however opt for specific performance in which case the deposit will still count as part of
the purchase price, although the Vendor will ask for damages too. Forfeiture however does not apply
where the purchase price is paid rather by way of installments and there is no deposit (especially in
estate conveyancing) but you may however provide for part forfeiture. Courts will ordinarily not intervene
unless the deposit was more than the customary 10%.
IMPORTANCE OF DEPOSITS
1. Deposit acts a security for completion, fear of forfeiture makes the purchaser complete
2. Reduces the purchaser’s burden of paying the full purchase price at a go. It is part of purchase price
and the purchaser’s advocate is expected to authorize its release to the vendor on completion.
3. Gives the purchaser the right over a lien on the property enforceable in Court.
4. Creates a symbiotic relationship with the vendor
HOW IS DEPOSIT HELD?

• Under condition 3- it is held by advocate or estate agent as stakeholder or as agent
• As stakeholder-held in trust to the order of both parties. The ultimate goal is to have it released
to the vendor upon completion r when forfeited in case of breach by purchaser, return to the
purchaser if the vendor defaults
• As agent the money is held to the order of the vendor, to be released upon his demand, the
funds are used to the vendor’s benefit to clear outgoings etc.
• Care must be taken in handling client’s money- consider which bank to deposit it in. It is
deposited in the client account unless agreement states otherwise.
• Since both parties have no proprietary right over the deposit held as stakeholder, the interest
earned can be for the stakeholder
[Reflection: what reforms would you propose to the issue of Deposits in sale transactions if any?]
LAND REGISTRATION ACT

Definitions S 2
o Dealing-disposition & transmission
o Legal incapacity- unsound mind or under 18 years
o Disposition-sale, charge, transfer, grant, partition, exchange etc. It also means the agreement to
undertake the disposition
o Transfer-the passing of land from one party to another and not by operation of law. It also
means the instrument by which such passing is effected
o S34 Searches- one can obtain official search and certified copies of any document
o S36(a)- allows contracts by correspondence, compare this with S38 of Land Act(contracts have to
be in writing, signed by all parties and signature witnessed). Is there a contradiction?
o S36 (3)(b)- allows for LSK Conditions of Sale
o S38(1) no registration without a statement that rates for the last 12 months have been paid if
property is within a rating authority
o S39 (1)-no registration without payment of rent.
o S39(2)- No registration without consents
o S42- No part transfers. One has to subdivide first
o S43- every instrument has to be in the prescribed form and be registered, this excludes contracts
o S44-execution of instruments- by all parties, if by a body corporate, association of co-operative
society it should be executed in the presence of an advocate, magistrate, notary public or judge.
Also provides for execution of documents outside the country.
o S45-Verification and attestation
o S46-stamping
o S47 & 48- capacity- minors(registration through a guardian) Agents(through power of attorney)
and persons with disability(through guardians)
OTHER FORMS OF DISPOSITION OF PROPERTY

Other than conventional contracts
1. AUCTIONS
They could be private or public. In private auction, only a limited group of people are invited to buy the
property. The bid given does not amount to a contract until it is accepted by the knocking down of the
hammer. S.3 of the Law of Contract Act does not apply. The issue of bona fides applies i.e. seller under
an obligation to fetch the highest price possible. Ss. 12 & 11 of the Restrictive Trade Practices &
Monopolies Act prohibits bid rigging.
Sale is of land is usually by private treaty or public auction usually to the highest bidder at the fall of the
hammer. This can be done in two ways:
 Execution of a court order

 Pursuant to a statutory power of sale.
Look at Auctioneers Act 1996 and rules there under, Civil Procedure Act (execution of decrees), (sale by
chargee). Requirement of Cap 23, (Law of Contract Act) section 3(3) relating to execution of contracts for
the sale of land does not apply since the contract is formed at the fall of the hammer.
The bid is merely an offer. It can be withdrawn or rescinded at any time and until acceptance, the bid is
susceptible to challenge, especially where the bidder doesn’t meet the reserve price. Reserve price is the
value of the property as at the time of the auction. In auction sales the seller is under duty to act in
utmost good faith. If he sells the property at a value other than the mortgage debt, he must account to
the mortgagor. The auctioneer is at liberty to reject a bid that doesn’t meet the reserve price. If no bid
meets the reserve price the auction will be withdrawn.
The terms of the auction sale are in most cases pre-set. The auctioneers have already set the amount
that they want to raise. There are no negotiations. If property is being sold pursuant to a court decree,
the court will set the terms e.g. provision of the reserve terms.
Who may bid at the auction?

 chargee and their agents
 Owner of the property
 Any person desirous of owning the property.
DUTIES OF ADVOCATE FOR PROSPECTIVE PURCHASER IN AUCTION SALE (Q3-2015)

 Search: because of caveat emptor doctrine. Most auctioneers are quite secretive; an advocate
must therefore raise the relevant requisitions and inquisitions discovered from the search.
 Conduct enquiries whether there are any pending matters in court.
 Engage surveyor – to advise you on a property (advice client on need for this).
 Advise client that he is supposed to pay 30 to 40 percent at the fall of the hammer.
 Advise client to be ready with the balance to be paid within 60 to 90 days. This is important
because of risk of forfeiture of deposit which is higher than the usual 10%
 Engage valuer- to advice on proper/real value of property.
DUTIES OF ADVOCATE FOR SELLER IN AUCTION SALE

 Act in good faith; ensure property fetches the best price.
 Ensure proper procedures are followed once bid is accepted.
 After receiving 30-40% ensure that the appropriate documents are put in order.
Transfer may be by way of vesting order which is registered against title and then the title is transferred
upon payment. Where auction sale is by virtue of executing decree, transfer may also be by way of
transfer by mortgagee or chargee.
Considerations to note:
See Auctioneers Act
 Auctioneers must be licensed by the Auctioneers board to conduct an auction sale.
 The auctioneer must hold a valid practicing certificate.
 The place, date and time of auction must be advertised in the local newspaper.
 The sale must take place as advertised unless cancelled by notice.
 The presence of a reserve price, if any, must be indicated in the advert.
If there’s no reserve price, the seller should not bid and the auctioneer knowing this fact should not allow
such a bid. The property must be sold to the bona fide bidder at the price reserved by him.
The three landmark stages of a conveyancing transaction are:

 Making of the Contract
 Completion
 Registration
PROS AND CONS OF AUCTIONS

• Bad root of title can be disposed of
• Involves many interested parties- since sale is publicized
• Costs- auctioneers, advertising etc
• Purchaser has little time to consider terms in contract for sale and impose his conditions
• Price may not reflect the market value
• Prone to challenges by chargor/mortgagor
2. PURCHASE OF NEW HOMES

• For houses, flats and apartments
• Letter of offer(prepared by vendor’s lawyer)
• Usually an agreement for lease, Lease and maybe share purchase agreement.
– Management Company, where purchaser is a shareholder
– Reversionary interest to revert to the company
– Interest sold is usually leasehold

– Company applies for extension of head lease when the same expires
– Ensure compliance with completion date
– Defects liability- period is 6 months after completion, repair of any damage is at
vendors/developer’s cost
– Certificate of occupation- issued by local authority confirming compliance with approval
and that property is fit for habitation. Completion date usually pegged to certificate of
occupation e.g. completion date means 30 days after issuance of certificate of
occupation
– Share transfer from should be executed
– Ensure there is a warranty and indemnities clause to rely on.
HOMES: DUTIES OF ADVOCATES

• Purchaser-
– Investigation of title
– Site plan for identification of subdivisions, differs with the registry map(RLA) where the
legal subdivisions are marked
– Obtain planning permission and ensure building complies
– Follow on the issuance of certificate of occupation
3. PURCHASE BY WAY OF SHARES IN A CO-OPERATIVE MOVEMENT

 An acquisition agreement for the shares is required and a share certificate is issued entitling one
to own a property.
 Share transfer form should be executed
 Search- a thorough investigation of the movement’s affairs is required, including its actual and
contingent liabilities
4. PURCHASE OF A COMMERCIAL PROPERTY FOR DEVELOPMENT

 Change of user acquisition should be a condition in the agreement
 Scrutinize local development plans and ensure that your client’s development plan has been
approved
 If purchasing commercial premises look out for protected tenants, get vacant possession if
possible.
5. PURCHASE OF TENANT OFFICE BLOCK

 Pre-contract investigations to include consideration of the existing covenants and conditions in

lease
 Ensure assignment has been consented to by the lessor. Make this a condition of sale contract.
 If change of user is required, obtain consent from lessor
 Was planning permission obtained?
 If acting for vendor ensure there is a guarantee that the tenant will comply with the conditions of
the lease
SECTIONAL PROPERTIES ACT
BACKGROUND
In the past, land for residential development in urban centres was readily and cheaply available. This led
to emphasis on individual houses. In the recent past:
 Escalating value of land
 Diminishing stock of land
 Increasing cost of building materials
This has prompted various jurisdictions to search for solutions such as registration of properties in strata.
Under RLA, RTA and Registration of Documents Act-transfer of flats and other building portions (usually
took the form of a lease) would be registered by using the architects plan which identified the units and
was registered under the Registration of Documents Act. The undivided share of the land would also be
made to the unit purchasers. The transfer was made between the developer, a management company
and a purchaser of an individual unit.
Shortcomings
 Content and form of plans to support issue of titles was not prescribed in legislation.
 No law that described what was individual property and what was common property and this was
left to the wording of the transfer.
 Incorporation of a management company for the administration of the common services was not
mandatory.
 A corporation incorporated under the Companies Act had stringent provisions to be met and non-
compliance could result in them being struck off leaving the unit owners with serious
consequences.
 Issuing titles to the flats led to a multiplicity of titles to the same land
SECTIONAL PROPERTIES ACT, NO 21 OF 1987
PURPOSE:
 Division of buildings into units owned by individual proprietors
 Common property to be owned by unit owners as tenants in common
 Use and management of units and common properties
The Act provides for:

 Requirements for sectional plans intended to support unit titles
 Registration of sectional plans under the Registered Lands Act (for freeholds and leaseholds with
a reversion of 45 years and more). Unit must be 2 or more. A certificate of sectional property is
issued for each unit.
 Register for title in common property is closed
 Substantive law governing the rights of the parties
 A corporation whose members are the owners of the units is formed on registration of the plan.
The provisions of the Companies Act do not apply.
 Corporation has a management board which appoints a manager to manage the common
property.
 Applies to any land registered under any Act but titles of land registered under GLA and RTA
would be deemed to be registered under RLA.
WHAT NEXT AFTER THE REPEAL OF THE RLA?

 The LRA S 54 (3) recognises registration of interest in land under the SPA.
 LRA S 54(5)-registrar shall register long term leases and issue certificates of lease over
apartments, flats, maisonettes, townhouses or offices as long they are properly geo-referenced
and approved by the body charged with survey.
PURCHASE AGREEMENT
S 46 imposes duty on developer to deliver the following documents before selling or agreeing to sell:
 Sale agreement
 By-laws or proposed by-laws
 Management agreement or proposed management agreement
 Recreational agreement or proposed recreational agreement
 Lease of property/title, certificate of sectional property
 Any charge that affects the property
 Sectional plan or proposed sectional plan
AGREEMENT FOR SALE CONTENTS

Format S 47:
A. A notification that is at least as prominent as the rest of the contents of the purchase agreement and
that is printed in red ink on the outside front cover or on the first page of the purchase agreement
stating as follows
“The purchaser may, without incurring any liability for doing so, rescind this agreement within ten days
of its execution by the parties to it unless all of the documents required to be delivered to the purchaser
under section 46 of the Sectional Properties Act, 1987 have been delivered to the purchaser not less than
ten days prior to the execution of this agreement by the parties to it.”
B. A description drawing or photograph showing:

 the interior finishing of all major improvements to the common property located within a
building
 recreational facilities, equipment and other amenities to be used by the unit owner
 location of roadways, walkway, fences, parking areas and recreational facilities
 landscaping
 exterior finishing
C. The amount or estimated amount of monthly unit contributions in respect of a residential unit
D. The unit factor of the unit and the basis factor apportionment for all units comprised in the plan.
Points of Reflection
Do you need the management company for units held on freehold tenure?
Does the corporation incorporated under the SPA have legal force?
What if unit owners are more than 50 and you would wish to incorporate under the Companies Act?
COMPLETION AND TRANSFER

Completion is the process in a conveyancing transaction where necessary documents of title are handed
over in exchange for the price. After investigation of titles and execution of the sale agreement, the next
and final stage is the completion and transfer. The sale agreement is merely executory and it gives no
interest. It will only give you an interest when you are able to complete as the purchaser (specific
performance) and vendor (forfeiture). S.54 of the ITPA and s.3 of the RLA recognise that the Sale
agreement is merely executory.
To get the interest one needs to register a transfer after paying the requisite stamp duty. The purchaser
needs to also pass some consideration to the vendor. This process of exchanging of some consideration
is called COMPLETION. The vendor completes by handing over possession while the purchaser completes
by giving the balance of the consideration. This is the final chain of conveyancing. It is however bilateral,
concessional and concurrent. Key phrases on completion are:
1. The date of completion
2. The venue of completion
3. The deliverables (completion documents)
4. The obligations of either parties at completion
The sale agreement is an executory document and interest in the land has to be formally transferred by
stamping and registering a transfer or conveyance. Prior to registration, the vendor expects to be paid
consideration, while the purchaser expects to be given all the registrable documents. The process of
exchange of consideration is called ‘completion’. Prior to completion, the purchaser’s advocate will have
prepared a transfer/conveyance document. In order to do this it is important that he identifies the
document to be drawn based on the statute in which the property is registered. Transfer is drawn by the
Purchaser’s advocate and forwarded to the Vendor for approval. The Transfer causes the disposition once
registered. The form taken by a transfer or conveyance deed depends on:
o Statute under which the property is registered

o The interest being conveyed or transferred
Statute Document of title Transfer document
GLA Title Deed Conveyance, Re-conveyance (upon redemption

of mortgage), Assent (transfer upon death of
proprietor), Assignment or Reassignment (for
leases). No prescribed forms, the practice has
been to use documents prescribed under the
1845 Real Property Act and the 1881
Conveyancing Act both applicable in Kenya as
statutes of general application before 1897
LTA Grant or Certificate of Title Transfer
RTA Grant or Certificate of Title Transfer in prescribed form. One may amend
without substantive departure from the
prescribed form.
RLA Land Certificate/Certificate Transfer of Lease/Land or transmission in

of Lease or Title Deed prescribed form or get consent of registrar
Following the investigation of title and approval/execution of the contract the parties now move to the
final stage of the transaction where interest actually passes. Remember a Sale Agreement is simply an
executory document and gives you no interest (see S. 54 of the ITPA). You have to formally now
transfer the interest and as we had seen during the lectures on requirement for registration, no
disposition is effective until a document passing the interest is actually stamped and registered. Prior to
the registration however the Vendor also expects his consideration and it is this process of “exchanging
consideration” that is referred to as completion. The Vendor completes by giving the Purchaser all the
registrable documents plus possession whilst the Purchaser completes by giving the Vendor the balance
of the purchase price. It is the final settlement of business. Note however that title will only vest upon
registration. It is however a bilateral and consensual act and both parties have their respective duties to
discharge. Needless to add before proceeding to complete the Purchaser should re-assure himself that
the answers to requisition and the searches have not yet expired. This can be done by re-affirming the
requisition answers and or undertaking a pre-completion search.
DATE OF COMPLETION
The date may be agreed expressly by the parties and inserted in the contract. When it is an open
contract (one that only states parties, price and property) or the date is not stated in the agreement the
completion ought to take place within a reasonable period of time. The Law Society of Kenya Conditions
of Sale, Condition 2 however had gone further to provide for a 42 day completion period where no date is
provided. If it’s a Controlled land then completion is 42 days after Vendor’s receipt of consent. If not
controlled then 42 days after date of contract.
The period before the date of completion is important to both parties as it is during this period that they
satisfy their contractual obligations or prepare to satisfy the same. For the Purchaser assemble the
monies, for the Vendor obtain the consents and clear the encumbrances, for example. As an Advocate it
is thus your duty to ensure that you get a proper time frame estimated before you agree to or insert a
completion date. Otherwise you will always be held to your bargain and the repercussions can be
disastrous.
It must be noted that the completion date or period if there is any delay may be mutually extended.
Where however the parties provide that the “time is of the essence” then the completion date must be
strictly adhered to. Failure to complete in such a case will be deemed a fundamental breach of contract
both at law and in equity. The party at fault will not enforce the contract specifically but the other party
is free to pursue his remedies for breach of contract including specific performance. He may elect to
rescind the contract the very next date if he chooses. Ordinarily time is only regarded as of the essence
if the parties make it so expressly as a term in the contract. Occasionally however the courts, at least in
England have not hesitated to make time of the essence by necessary implication. Thus in:
Barclay –vs- Messenger [1989] 3 All E.R. 492

A Contract provided that if the Purchaser should fail to pay the balance of the purchase price on
a given date, the agreement would become null and void. Sir George Jesse M. R. held that time
was of the essence stating obiter that he did “not know how making time of the essence could
have been more strongly expressed.”
In the Kenyan case of Sagoo Vs Dourado 1983 KLR 365 the Court of Appeal however held
that time will not be considered to be of the essence in any contract unless
i) Parties expressly stipulate that conditions as to time must be strictly
complied with
ii) Nature of the subject matter show that time should be of the essence
iii) A party subjected to unreasonable delay gives notice to the other
making Time of the essence
It is a matter of construction of the contract and one may as well argue that S. 3(3) of Cap 23 would
bar such interpretation which invites implications.
When time is not of the essence failure to complete on the agreed completion date does not
entitle the aggrieved party to decline to proceed with the contract. But what of unreasonable
delays despite requests to complete? See Madan J.A in Njamunyu Vs Nyaga 1983 KLR 282
where together with the other court of Appeal judges, the late Madan seemed to suggest that
the provision as to time being made of the essence can actually be implied. This should really
allow rescission. However it appears from the line of authorities that in the absence of undue
or unreasonable delay one would still be entitled to specific performance even if he is the guilty
party.
In such instances the aggrieved party needs to give a Completion Notice which must be proper and
explicit. The Law Society of Kenya Conditions provide for this (Condition 4). Where the Notice is not
heeded then one is entitled to rescind as the Notice itself now imposes the “time is of the essence”
condition. A proper Completion Notice will constitute reason for the alleged breach and demand that
it be made good within the notice period and further that in default Agreement will be rescinded
forthwith upon expiry of the Notice.
To be effective too the Notice must limit a reasonable time for performance. The Notice must also
leave no room that the Server may still be willing to perform the contract if there is still a failure to
complete. Of course to be effective the Server must himself be ready able and willing to complete in
which event the time is also of the essence for him. [Reflection: Will a notice given in anticipation of
breach be good?]
FAILURE TO COMPLETE
• Either the vendor or purchaser may fail to complete (i.e. on the completion date). Time should
be of the essence.
• Remedies
• If offended party is vendor, he can go for specific performance thus precluded from
forfeiting the deposit. He can also seek damages (usually calculated as the
difference between market price and the contract price), rescind the contract,
forfeit the deposit, treat the contract as repudiated, resell the property and recover
his expenses and loss from the resale
• If the offended party is the buyer, he may take out proceedings for specific
performance or rescind the contract and sue for refund of deposit or seek damages
for non-performance (difference in value between contract price and the
market price), interest, costs including legal costs and expenses of searches
etc.
NOTICE OF COMPLETION
Condition 4- The aggrieved party needs to give an unequivocal notice, the Notice should explain
the alleged breach and demand that it be made good within the notice period as per the
agreement and that in default; the agreement will be rescinded upon expiry of the notice.
• Once ready to complete, the parties sign the conveyance and deliver the completion documents
at the completion meeting
• Usually, completion documents comprise of:
– The Original Title documents;
– Transfer duly signed by the vendor
– Land Rent Clearance Certificate; (For leasehold Titles only)

– Land Rates Clearance Certificate; (For Municipal / urban properties of both a leasehold
and freehold nature provided a local government authority has levied land rates on the
property);
– Relevant consents applicable to the Transfer. i.e
– Consent of the Commissioner of Lands to leasehold interests;
– Consent of the Land Control Boards for Agricultural land obtained in pursuance of
the Land Control Act Cap 302 of the Laws of Kenya;
– Consent of any chargee or Mortgagee having an interest in the land;
– Consent of any statutory authority having an interest in neighbouring property (e.g
KPC, KAA, KCAA,) etc;
– Notice of withdrawal of caveat or caution if there are any third parties having an
interest in the property;
– Original Land Rent payment Receipts;
– Original Land Rates payment Receipts;
– PIN of the vendor;
– 3 coloured photographs of the vendor or vendor’s directors
– Copy of the Vendor’s ID
INTERIM PERIOD
The interim period as already stated between the execution of the contract and completion is
important for two reasons:
 The performance of the various contractual obligations in preparation for completion
 The risk of the property
Performance of Obligations
The Contract will have various obligations imposed on the parties. We have witnessed that one of
them is the payment of deposit which the Purchaser must effect. The Purchaser must also put
together his finances, visit and inspect the property. The Vendor on the other hand must obtain the
requisite consents, discharge and encumbrances (unless agreed it be discharged on completion). Any
other obligation under it must then be honoured.
RISK OF THE PROPERTY

In a Court of Equity once there is a valid Contract of Sale, the Vendor becomes a trustee for the
Purchaser of the estate sold and the Vendor himself becomes owner of the purchase money. This is
so long as the Contract is not subject to a condition precedent e.g. the obtaining of a planning
permission.
As a Vendor qua trustee, the Vendor has a personal and substantial interest in the property which he
has to protect and actively so. His interest includes obtaining the purchase money which he can only
do if he also delivers the property “held in trust”. He is thus under an obligation to ensure that the
property’s condition does not deteriorate nor is the same wasted. The Purchaser’s interest is however
only in the property and not any income being derived there from. As the Vendor is entitled to a lien
on the property as security of the purchase price, the Vendor will always retain possession. He must
however honour his duty to maintain the same. He must treat property as a prudent owner and not
willfully damage it. He has to use reasonable care to maintain it but he is not obliged to improve it.
The Purchaser is entitled to lay claim in damages if he completes the contract even though the
property has been wasted. But if the property is completely wasted he is entitled to rescind and claim
his deposit. To avoid situations like the latter, the Vendor always takes insurance. It is different if
risk and possession is passed at date of contract.
ACTUAL COMPLETION
The parties once ready to complete the Conveyance (the Vendor ready to execute the Transfer Deed
and deliver the other completion documents and the Purchaser ready with the purchase money),
completion can be effected. As a general rule it takes place at the Vendor’s or the Vendor’s Advocates
offices, but the parties can agree otherwise.
Completion will take place on the date agreed at 2.00 p.m. (Law Society of Kenya Conditions). The
Vendor will deliver the keys (possession) and the Purchase Deed duly and properly executed and the
other completion documents which will include:-
i) Consents;
ii) Clearances;
iii) Title Deed in original form;
iv) Photographs etc;
The Purchaser on the other hand will deliver the cheque for the balance of the purchase price and
apportioned outgoings as well as the authority to release the deposit.[Reflection: What happens
where the amount is or is in the excess of Kshs. 1,000,000/= ?]. At times an undertaking replaces this
cheque especially if the purchase is being financed.
POST COMPLETION
What need you do?

- Report to and account to client.
- Stamp documents
- Register documents together
- Notify the world
COMPLETION UNDER THE GENERAL TERMS

(LSK CONDITIONS) cf. Condition 4.
TRANSFERS, CONVEYANCES AND TRANSMISSIONS

INTRODUCTION
• What is a transfer?
– See S2 LA- The passing of land, lease or a charge from one party to another by an act of
the parties and not by operation of the law. It also includes the instrument that effects
the passing
• What is a conveyance/assignment?
– Not defined by statute. Deed by which the owner of a freehold/leasehold property whose
title is subject to the deeds registry transfers ownership.
• What is a transmission?
– S2 LA-the passing of land, lease or charge from one person to another by operation of
law on death or insolvency or otherwise.
Transfer Conveyance
An instrument or statutory form which The deed by which the owner of a freehold
transfers the ownership of a freehold or a property whose title is subject to the deeds
leasehold property (title) from one person registry transfers ownership. If interest is
to another. leasehold, the deed is called a deed of
S2 of Land Act- the passing of land, a lease assignment. If freehold, it is called a deed
or a charge from one party to another by of conveyance. Mainly under GLA and LTA
an act of the parties and not by operation Deed is a document that is signed sealed
of law and includes the instrument by and delivered, as well as there must be an
which such passing is effected. intention to be bound.
Transfer of registered land under RTA and
RLA (before their being repealed) only
purported to effect the transfer as the
actual transfer occurred on registration.
• Inter vivos-also called voluntary transfers e.g.

through sale, settlement or gift.
• Both ITPA and RLA contemplated an
Inter immediate transfer- see S87RLA. S44 LA contingency
Transfers
vivos and conditional transfers are prohibited.
• Transfer is only effected by the estate owner-
Upon
e.g. the legal owner, beneficial owner, personal
death representatives, trustee, chargee/mortgagee
General parts
Preliminary-date and parties: date is presumed to be correct until the contrary is proved. Date is
important for purposes of stamp duty. S6 of the Stamp Duty Act- instruments must be stamped within 30
days of execution. To avoid this problem the instrument is left undated until when the parties are ready
to perfect it.
Operative part
– Recitals- explanation or background to the transaction. Two types- narrative (past history
of how vendor became owner) and introductory-why the existing state of affairs is to be
changed. They are not compulsory but are important.
– Testatum- introduces a list of items
• Consideration(states the whole purchase price)
• Receipt clause (optional) shows the vendor acknowledges the receipt of the
purchase price. Dispenses with requirement for formal receipt
• Word of grant(assigns or conveys)/transfers

• Parcel- description of property
• Habendum- quontum of interest granted
Exception (withheld from the purchaser by the vendor especially in an assignment) and reservation
(creation of new right for the vendor eg where the vendor retains part of the land-easement)
• Miscellaneous provisions
– Implied covenants especially under GLA
• Final part
– Testimonium- links the deed with the parties seal and signature. Not mandatory. Its
inclusion is proof that the deed was duly executed
– Execution-signing and sealing.
– Attestation-witnessing
– Franking-providing of the name and address on the conveyance of the advocate who
prepared it-s35 of Advocates Act. Noncompliance is an offence and Registrar may not
register the instrument.
– Memorandum-to which the instrument is subject to
GLA/LTA DEED
• In the form of a Deed. Instead of being signed it is signed sealed and delivered.
• Neither GLA nor ITPA prescribe statutory forms for transfer. The form is governed by English
patterns in accordance with the Real Property Act 1845 and Conveyancing Act of 1881- these are
statutes of General Application in Kenya.
• Transfers under freeholds are effected using a conveyance, while for a leasehold uses an
assignment
• A deed under GLA or LTA still requires to be registered since no evidence will be received in a
Court of a sale unless it is in writing and is registered. Registration also determines priority of
interests.
• The transfer is effected by the completed deed itself (when it is signed sealed and delivered).
• A seal must be placed (paper disc next to the signature). It should also be delivered. There must
be intention to be bound.
TRANSFER
• Use of statutory forms prescribed by RLA and RTA or instruments in conformity with the Acts and
approved by the Commissioner of Lands.
• S20 RTA- all dealings in land subject to the Act must be in accordance with the Act. Execute
transfer Form F in the first schedule (see S34). There was a requirement for the attestation of
signatures under S58 but no sealing requirement.
• S38(1) RLA- dealings in land subject to the Act must be in accordance with the Act. S108- use of
prescribed form issued by the Registrar. Requirement of verification of execution under S109 was
mandatory. No requirement of a seal. Schedule 3 of RLA
• If an Advocate chose to use a form other than those prescribed, he must have them approved by
the Commissioner
• Legal Notices No. 143-146 both parties to sign transfer
• NB: a transfer does not operate as a transfer of land until the transferee is actually registered in
the registry. Registration doesn’t merely record the instrument but passes rights of ownership to
the purchaser.
• Statutory forms in RTA and RLA were varied by LN 146-153 to include further details of PIN no,
ID, coloured passport photographs etc
• Responsibility for drafting rests with the purchaser’s advocates and it is approved by the vendor’s
advocates
• RLA prescribed form can only be varied by the Registrar’s written approval.
• RTA variations do not require Registrar’s approval. It is ordinarily prepared as a deed.
• Both parties must execute- Law of Contract Act S3(3)
• Upon registration:
– RTA- issued with grant (for leasehold or freehold). If a portion of grant is transferred, a
certificate of title is issued;
– RLA-Land certificate- uses terminology of ‘absolute title’ (applies to freeholds). For
leaseholds one was issued with a certificate of lease (if leasehold was for a period of
more than 25 years)
New Regime
• The new legal regime introduces compulsory use of prescribed forms for dispositions in land.
Since no forms have been prescribed as yet, we shall only delve into substantive law.
– S43(2)LA- transfer to be effected by an instrument in the prescribed form
– S43(3)LA- completion of transfer process only after registration
– S36 (1) LRA dealings in land only in accordance with the Act
– S37LRA- transfer by an instrument in prescribed form of from approved by Registrar.
Filling the prescribed from and registration completes the transfer.
– S40 LRA-contingency or conditional transfers prohibited
– S43(2)LRA- Transfer effective only upon registration

– S44(4)LRA requirement for endorsement (in prescribed manner)of signatures of persons
outside the country
• Other requirements S44(5) LRA-
– Copy of ID/passport
– Copy of PIN
– Passport size photographs
– Marriage certificate where applicable
• Verification of execution required.
Involuntary transfers (by operation of
law) Death
Court Attachment and Sale
Vesting Order
Bankruptcy or Insolvency
Adverse Possession
Compulsory Acquisition
Transmission: Company liquidation

• Companies Act(cap 486), S 53 LA and S64 LRA
• The Registrar is presented with a resolution or order appointing a liquidator which he shall enter
in the register, any instrument will thereafter be sealed with the company’s seal but attested by
the liquidator
Transmission: Bankruptcy
• Read Bankruptcy Act cap 53
• S52LA and S63 LRA-
• When debtor commits an act of bankruptcy, he or creditors may file petition after which a
receiving order is made (places control of property in the hands of official receiver appointed by
Court).
• A further order called an adjudication order is made and his property then passes to the trustee
in bankruptcy for distribution among creditors. The transfer to the trustee in bankruptcy is
effected through the registration of the adjudication order by the registrar.
• If a debtor dies insolvent, the personal representatives can follow the same process
Transmission: vesting orders

• A court order that creates or transfers legal ownership of a property in place of a legal
conveyance. See Trustees Act Cap 167 Ss 45-56
• Instances
– Court ordered purchases/sales of mortgaged land s48
– Specific performance of contract where parties are trustees-s 49
– Trustee has not exercised their duty in the disposition of interests in property s45
– Interests in land subject to a contingent right of an unborn person, when born court may
make an order-s 46
– Infant mortgagees-S47
Transmission in other cases

• S54 LA, S65 LRA- if one is entitled to property under any law by virtue of an order, certificate of
sale, one needs to apply to Registrar with supporting documents for registration as proprietor.
Attachment for debt: Order 22 Rule 55

_ Land plus Judgement Debtor’s(JD) other personal effects may be seized in execution of a court
decree for payment of JD’s debts.
– Sale is by public auction-auctioneer= Court’s agent
– Sale agreement is signed by purchaser. Proceeds of sale are deposited in Court and paid
out to the Judgement Creditor(JC)
– To complete the sale the purchaser applies for Court’s vesting order which the Registrar
uses to register new owner.
– JC may place a prohibitory order against the property while the process is ongoing.
– The Court may on application by JC order that the transfer be executed by the Registrar
of the High Court in lieu of the JD/vendor
Transmission: death
• Transmission by succession
Testacy
death Intestacy
Escheat
Transmission upon death

• Sole proprietor or proprietor in common:
– Testate/will- executor will prove the will in court and obtain probate, apply to Registrar in
prescribed form and produce grant. He is then registered by transmission as proprietor or
the registrar may register any transfer by him directly to third party without requiring his
registration as proprietor (by assent)- S50 LA, S61 LRA.
• Joint tenancy- S 49 LA, S60 LRA- the property passes to the surviving tenant under the doctrine
of jus acrescendi. The Registrar is required to register the death certificate and delete the name
of the deceased from the registrar on production of the death certificate.
• Escheat-When the deceased has no heirs to his property. The property reverts to the state. It
used to be covered by S 8A of GLA(now repealed)
Adverse Possession
• S7 and 17 of the Limitation of Actions Act provide for a 12 year limitation period for the recovery
of land. S37 &S38 if land is registered then it is held in trust from the adverse possessor until he
obtains a vesting order from the High Court.
• Possession alone is not enough, there must be proof of adverse possession (Bwana V
Ibrahim(1948)EACA 7, Volume 20 pg 699, Halsbury’s Laws of England
• Basic requirements:
– Open and notorious use;
– Intention to possess;
– Continuous use;
– Exclusive use- to the exclusion of the owner;
– Actual possession;
– Non-permissive, hostile/adverse use-without owner’s permission and inconsistent with his

rights
• Point of Reflection-Does an adverse possessor need consent of the Land Control Board? If so by
when? (see Karanja Matheri V Kanji(1976)KLR 140, Gatimu V Kinguru(1976)KLR 253- The Court
can order registration of one as a proprietor even though no consent has been obtained.
Compulsory Acquisition
• State is the owner of radical title- eminent domain. The Constitution gives the State the power to
compulsorily acquire land for public purposes. This was previously implemented through the Land
Acquisition Act.
• The Act empowered the Commissioner upon due notice in the Kenya Gazette and payment of full
compensation to acquire land.
• See Art. 40(3) right to own property limited- for public purpose/public interest, there is prompt
payment in full of just compensation
• Public interest see Mohammed v Commissioner of Lands and others(2006)KLR (E&L) 217
• Compensation Courts have held that market value plus 15% should be paid.
Compulsory Acquisition- New Regime

• S107- 133 LA
• If public purpose or interest ceases to exist, the Commissioner may offer the original owner pre-
emptive rights to reacquire the property.-S110 LA
• Commission to make rules to ascertain just compensation S 111 LA. One can be given land in lieu
of the award
• S 132 LA- transactions are exempt from stamp duty
What have we learnt?
Definitions of Transfer and
Transmission Parts of a transfer
document
Instances of transmission
Various transfer documents in the old regime still transiting to the new regime
What we are going to learn

Interests capable of transfer
Transfers without consideration
Issuance, loss and replacement of title

documents Subdivisions and surveys
LEGAL INTERESTS CAPABLE OF BEING TRANSFERRED
Freehold
TRANSFER- S 2 of LA & S 37 (1)

LRA
Charge
S37(2) deals with the transfer of all the 3 types of interests.
PROCESS
 Filling of the prescribed instrument
 Registration of transferee as proprietor of land, lease or charge
S32 LRA-produce original& duplicate lease or charge for registration of any disposition in the document
including transfer.
TRANSFER OF LEASE
 S45 LA- implied warranty that rent, agreements and conditions in lease have been met by
transferor as at the transfer date and that these obligations shall be met by transferee from the
said date
 S 71 LA has similar provision
 S72-transferee becomes the lessee
TRANSFER OF CHARGE
 S86(1) LA
 Chargor (or anyone with an interest in land that is charged, any surety for the payment of an
amount secured by a charge, any creditor of the chargor who has obtained a decree for sale-with
the consent of the chargor) may request the chargee to transfer the charge to a person named in
the request.
 Chargor’s consent to transfer charge required if the charge instrument expressly or impliedly says
so(S87)
FREEDOM TO TRANSFER?
 Bill of Rights in the Constitution
 Article 40(1): Subject to Art. 65, every person has the right to acquire an own property, of any
description and in any part of Kenya
 Article 65-You can only transfer freehold property or leaseholds of over 99 years to Kenyan
citizens any such transfers to non-citizens are deemed to be leasehold for 99 years.
WHAT OF CONSIDERATION?
 S43(2)LA, S27(1) LRA- one can transfer land, lease or charge to any person including himself
with or without consideration
 What of the requirement of consideration for a contract to be valid?
 There is an exception to this rule where consideration is not valuable i.e. no money is paid. In
this case the transfer documents indicate that the consideration is “love and affection”. How
does this fit in with the phrase ‘without consideration’ above? S27(2) LRA same effect as transfer
with consideration
TRANSFER ‘WITHOUT CONSIDERATION’

 To oneself - Change of name
 To spouse
 To beneficiaries
 Gift
GIFTS
 What is a gift? Something given voluntarily without payment in return to show favour,
honour, assistance or a present
 Land as a gift- no consideration?
 Giver= donor, Recipient= done
 The gift must be accepted by donee during the lifetime of donor
 It must be effected by a registered instrument and the donor must comply with all the
statutory requirements relating to the transfer eg LCB consent where necessary etc
 See the Registered Trustees of the Anglican Church, Mbeere Diocese Vs. Rev. David
Waweru (2007)eKLR Civil Appeal 108 of 2002. The Respondent(Rev. Waweru), had
donated his land to the church. He obtianed LCB consent and executed the transfer but it
was not registered due to a court matter over the property. He later sought to reclaim it from
the church through court action after he resigned from the church service. The suprior court
held in his favour. The Court of Appeal held in favour of the Church using the above principle
that where the donor has fulfilled all legal requirements of a transferor, the property belongs
to the donee.
 S49 LRA- donee with legal incapacity may transfer back property within 6 months after the
end of incapacity
DISSOLUTION OF MARRIAGE
We haven’t embraced pre-nuptial agreements. Are they of any force especially if they are in conflict with
written law? MWPA of 1888 is applicable in Kenya as a statute of general application(S3 of Judicature
Act). S17 of the Act entrenched the right of women to own property in their names if acquired before
marriage. Also provided that the High Court can adjudicate over disputes concerning matrimonial
property
MATRIMONIAL PROPERTY
Petit V Petit, 1969 All ER 385, Wife bought property in her name, husband only painted. The court
held that he was not entitled to the propety
Gissing V Gissing 1970 2AllER 780, wife was considered to have directly contributed
I v I 1971 EA 278, established the applicability of MWPA in Kenya
Karanja v Karanja 1976 KLR 307- The couple were both salaried, it was held that the wife was entitled to
the property and her part was held by the husband in trust for her
Njuguna v Njuguna 1986 LLR 823(HCK)- The Court recognized non-direct contribution
Kivuitu v Kivuitu 1991 KLR 248- Purchase price paid by the husband (deposited by the wife while he was
abroad). It was registered in joint names. The wife sought to sell it and have her equal share. The Court
established that indirect contribution can lead to equal distribution of the property. But this was overruled
in Echaria v. Echaria.
ISSUANCE, LOSS AND REPLACEMENT OF TITLE DOCUMENTS

S24 LRA- registration vests interest of absolute ownership or leasehold interest in transferee. S25 LRA -
registered proprietors rights, for valuable consideration or by court order shall not be defeated except
under the Act. S26 LRA- issuance of certificate of title or lease is conclusive evidence of proprietorship.
S33 LRA- one can be issued with a duplicate certificate of lease or title if it is lost or destroyed. Proof of
loss or destruction required and statutory declaration shall be required by registrar.
SUBDIVISION AND SURVEY/ DEVELOPMENT CONVEYANCING

There has been increasing subdivision of land in the property market. Many subdivisions and
amalgamations are managed by private surveyors but under the Director of Surveys see S 22 of the
Survey Act (cap 299). S22LRA, proprietor applies to registrar to subdivide and registrar closes the register
of the main parcel then opens new registers in respect of the new parcels. S 42LRA prohibits part
transfers before formal subdivision.
SUBDIVISIONS AND AMALGAMATION

The proprietor hires a physical planner and land surveyor to develop a subdivision/amalgamation report.
Report presented to council meeting and discussed by technical committee who may make suggestions
on plot sizes, roads etc. Report amended, Council planner issues a letter approving the subdivision as per
the report and sets out conditions to be met before MoL can issue titles eg infrastructural
development(roads, water, storm drainage, sewer, electricity. The Council can recommend issuance of
30% of titles for sale to support these infrastructural developments. The Land owner takes the approval
letter to MoL to process titles. The Commissioner of Lands (CoL) circulates the application for approval to
Director of Physical Planning and Director of Survey.If approved CoL issues conditional approval and sets
out fees payable and conditions to be complied with.Application sent for valuation, to ascertain new land
rent. CoL grants final approval after council gives final approval.Compare this with sectional properties.
Which one is less complicated? Which one is more economical for the developer?
THE MINISTRY OF LANDS

 Departments of MoL
 Administration & Planning
 Surveys
 Physical Planning
 Lands
 Land Adjudication
1. LANDS
1. Land policy formulation

2. Management and custody of land resource
records
3. Administration of Government and Trust
Lands lands
4. Registration of titles and various transactions
5. Land valuation for various purposes
6. Resolution of land and boundary disputes
7. Generation of revenue and collection of
allocation in aid
3. DIVISIONS
• Alienation of govt and trust land, title

preparation for govt and trust land, land rent
Land Administration clearance certificates and commissioner’s
consent, Processing of development
applications, subdivisions and amalgamations
• Stamp duty, rent apportionment for
amalgamations and subdivisions, valuation for
rating, land rent, determine market value of
Valuation land, asset valuation of govt institutions,
valuation for compulsory acquisition, required
by court order etc
• Stamping and registration of documents

Land Registration
REGISTRATION PROCESS
Stamping
 Documents presented for assessment of stamp duty at banking hall
 Assessor of Stamp Duty confirms whether duty is payable and then issues KRA stamp duty
assessment form to be completed
 Assessor assesses the amount of stamp duty payable. Applicant pays at KCB or NBK
 Applicant brings back document and form together with proof of payment
 Bank makes reconciliation of payments received and gives collector of stamp duty statements of
payments(takes 2 days)
 Documents are stamped and given to accountant to countercheck payments and then to auditors to
audit
 Documents picked for registration
Registration
Previously we had several registries
 RTA-2 registries (Nairobi Central Registry and Mombasa Central Registry)
 GLA, Nairobi Central Registry
 LTA, Mombasa Central Registry
 RLA, various District Registries
 RDA, Principle Registry in Nairobi, for all matters outside Coast & Coast Registry for matters
within the Coastal region.
New Regime
Registries to be constituted by the Commission- see S6 &7 LRA. A land Registry in each registration unit.
Blocks
Registration Sections
Blocks
Registration Units
Registration Sections Blocks
Procedure
 Present document plus completed application for registration form in quadruplicate to booking
counter. They are stamped with received stamp
 Day book number is indicated on both the documents and forms for follow up
 Auditor checks documents to ensure payment in terms of stamp duty
 Strong room officer retrieves relevant files and matches the documents
 Investigation officer checks whether they are properly drawn and that there are no
encumbrances, may make recommendation for registration
 The documents are given to the registry superintendent who assigns them to assistant registrars
to make entries
 Assistant registrars enter the transaction on original title(RTA) and indicate the time and date of
registration which is the date of booking documents. RLA new certificate of Lease/Title Deed is
prepared
 Documents are passed the Registrar who will sign if found to be in order
 Documents sealed and photocopied( no need for photocopying of RLA as original title is retained)
Where There Is Subdivision or Amalgamation

The investigating officer refer the deed plans to the Department of Surveys for confirmation and they in
turn refer the documents to the valuation division for rent apportionment and assessment.
ADDITIONAL NOTES ON TRANSFER

TRANSFERS
They are what gives the purchaser the right and interest conveyed/purchased. The sale agreement of
itself does not convey an interest in land. See S.54 ITPA & s.3 RLA
Openda v Khan
Sale agreement creates no interest over the property
The transfer is always drawn by the plaintiff’s advocate save in very exceptional circumstances e.g. in
mortgages and subleases
Salim v Okongo [1976] KLR 42
LSK Condition 24 – Transfer can be drawn by the purchaser’s advocate. The drafting responsibility is
then in a way passed to the vendor’s advocate when his approval is so sought. Purchaser’s advocate
ensures the purchaser really obtains the interest in land sold.
Forms of transfer
This depends on:
a) statute applicable
b) interest to be transferred
For RLA land, forms are prescribed which are mandatory under s.108 and schedule 3 of the Act. You
must use these forms unless you prepare your own form, pay the requisite fee and obtain consent from
Registrar. Under RTA, s.34 provides the form which is NOT mandatory and you can adjust it mutates
mutandis. It is in the form of a deed. It does not matter that the interest is a leasehold or freehold,
neither does it matter that the person transferring is not the registered owner.
Under RLA if a leasehold prepare a transfer of lease – Form RL2 .If freehold prepare a transfer of land-
use RL 1. Under the GLA and LTA, these are simple deeds in the form “conveyances or assignments”.A
conveyance refers to a document used to transfer an interest registered under GLA or LTA which interest
is a freehold.An assignment refers to a document used for purposes of transferring an interest registered
under the GLA or LTA which is a leasehold interest.In drawing the deed of conveyance or transfer you
can convey different properties. Under the RLA the transfer of lease forms allow one to transfer 1-5 and
6-10 properties respectively.
You may also include properties registered in RTA and RLA in one deed as long as you obtain permission
from the Registrar of Lands. You ought to be careful with the use of precedents. Do not use them blindly.
Under the GLA, one talks about;

a) A deed of conveyance – transfer of freehold
b) A deed of assignment – transfer of conveyance
c) An indenture of conveyance was common during the regime of no requirement

for registration. No need to refer to indenture now.
Specimen Deed of Conveyance

See Handout
Commencement – Refers to the title of the deed itself.
Date – The execution date is the most appropriate to insert to the document.
 Date stamp duty
 Ideally put the date of execution by the vendor i.e. when the interest is conferred
(practice)
 Ensure you get the right date to avoid conflict.
Parties – those interested in the transaction

 Get their names, descriptions and personal details right
 Their addresses also need to be correct as it is through this address that any notice will be
forwarded to them e.g. rates demand, land rent demand
 The vendor’s address ought to be the same as the address in the last purchase deed and
perhaps even similar signature to curb fraudulent transactions
Recitals – these are two-fold:

a) Narrative recital i.e. the recital of the title
b) Introductory recital i.e. the recital of the contract
It begins with the word WHEREAS.

The narrative recital sets out the vendors title. It makes it easily understood for purposes of the
conveyance. The introductory recital explains the purpose or the intended operation of the deed of
conveyance/transfer.It put into effect the agreement that the parties had.
Testatum – This where the deed begins:

“NOW THIS CONVEYANCE WITNESSETH…”
It is a declaration that what follows in the body of the deed contains details of the operation of the deed.
Consideration – This refers to the exchange given by the purchaser for the interest in land that he is
receiving. It could be monetary or otherwise i.e. another parcel of land therefore a deed of exchange.
Consideration is important because:
a) It is not a voluntary deed and as demanded by the law of contract, one is suffering to part with
something for what they are receiving. Matters as between the Government and parties.
b) It avails:
 The remedy of specific performance
 It helps the government to determine how to charge
 Particular transactions by the parties i.e. stamp duty, income tax
Receipt clause – this is necessary in the body of the deed or in the transfer deed as it enables the
purchaser and the purchasers successors in title if any (heir, legal representatives) to avail themselves of
various statutory and legal provisions. It is an acknowledgement by the vendor that he has received the
consideration (operates as a discharge for the purchase moneys). It avails to the purchaser and its
successors in title, the protection of a bona fide purchaser for value without notice especially as against
third parties.
Operative words – these are words of the grant (transfer) and capacity of the parties to issue that grant.
It is the statement by the vendor of what he is doing by virtue of the deed e.g. “ the vendor as the
beneficial owner doth hereby grant and convey”
NOTE:
If transferring a:
a) Freehold GLA – convey and grant
b) Leasehold GLA – convey and assign
c) Freehold and leasehold RTA – Simply transfer
d) Charge document – Charge expressly
e) Lease - Issue a demise
f) Discharge GLA – Release and reconvey
Note: the capacity of parties really matters e.g.

- Beneficial owner
- Trustee
- Administrator
- Attorney
- This will show existence of power to transfer the property
Parcels clause – Technical term denoting the description in words of the property being transferred,
conveyed or assigned. It should be strictly accurate and includes sketchmaps, deed files etc. Includes
acreage of land. If the descriptions are too many you can describe them in the schedule and make
reference in the parcels clause. A misdescription of the property can be corrected by variation. Avoid
misdescriptions because vendor can play dirty making your right of rectification useless.
Habendum – maps out or defines the interest or the quantum of the estate that is being taken by the
purchaser. If it is a freehold being transferred or conveyed, you should state that you are giving it to be
held in fee simple. If it is a leasehold, there are limitations state expressly “to hold for a specific term e.g.
99 years, remainder of the term”
If it is an assignment, state whether you are assigning the balance of your leasehold tenure e.g. the
residue of your time, fifty years less the last 20 years etc (esp in GLA). Also put any limitations and
restrictions e.g. subject to easements, subject to payment of land rates
Covenants – A covenant is that agreement which not only binds the vendor but also binds his
predecessor. It details and declares all the covenants of the parties.Testimonium – This is the part that
now links the execution or the affirmation of the deed with the rest of the document “IN WITNESS
WHEREOF…”
Attestation/verification – the place where the parties sign or cause the common seal to be embedded. It
signifies the intention of the parties that the deed ought to become operative and it is consequently so
deemed when the parties execute the document. Legal Notices No.146 – 153 of 2005 require that when
you prepare a deed of assignment or transfer, you attach photographs of the parties
Note: The schedule strictly and ideally speaking out to be inserted between the testimonium and the
execution clauses to avoid fraudulent changes thereunder.
Under the RLA, the forms are very simple i.e.

1. Commencement clause
2. Parties clause
3. Consideration/operative clause
Note: No parcels clause as this found in the commencement clause
If there are covenants, one has to seek permission to vary the form from the Land Registrar.
OTHER DEEDS OF TRANSFER

a) Vesting Order – order by the court for the purpose of conveyance. Does not exist under the RTA,
GLA, RLA or LTA. It is an order by the court for the purpose of conveyancing/creating a legal
estate and it operates to vest the estate/interest in the same manner as if it had been a transfer
or a conveyance executed by the estate owner. Only in this case, the vesting order is executed
by a high court judge.
The Trustees Act Cap 167 grants this jurisdiction to the High Court puisne judges (S.5-56 sets out the
various instances when a vesting order can be issued e.g. s.48 where the High Court has ordered the
sale of the property. Also applies where the court sells the property in execution of a decree. Also where
the court orders specific performance. It is applied for by way of an originating Motion or Summons.
The person acquiring that interest prepares a vesting order and sends it to court for approval and
execution by a High Court judge. A vesting order is a transfer which is supposed to fetch stamp duty.
Also issued where the trustees are not acting e.g. refusing to subdivide.
b) Transmissions
These are transfers save that the interest in land/lease from one person to another is by an act of or
operation of the law. This will happen when:
 Somebody dies
 Somebody is declared bankrupt
The form that the transmission dictates is either an assent or a basic transfer of interest in an estate by
an administrator form. Assent applies when dealing with the estate of a deceased person where the land
is registered under the GLA, LTA or RTA. In the document, one’s title is only as far as one is an
administrator. RLA has a specific form for it.
c) Sub-leases
These are transfers or conveyances in their own rights. A sublease is basically a lease by a lessee to a
third party conveying some or all of the leased property for a shorter term than that of the lessee
himself. It is occasionally referred to as an underlease or even a lease. In the latter case, it will happen
when dealing with freehold property e.g. 999 years lease and given for 900 years. Subleases have been
in existence in Kenya since the late 1970s.
Characteristics of a Sublease
- The term to be granted in the sublease will depend on the headlease i.e.
must be less than the head lease.
- There is a management company that owns the property (land) where

the sublease is created. This company is registered under the Companies
Act Cap 486. Its purpose includes inter alia:
(i) managing the estate where this sublease exists
(ii) acquiring the reversionary interest where the subleases lie.
It is the management company that will then negotiate an
extension of the lease.
- The owners of the sub-leases are entitled to a share of the management
company. Therefore, the sub-lessees own the reversionary interest itself
by getting a share certificate of the management company.
- The reversionary interest will vest in the management company.
- The building/architectural or site plans will be annexed to the sub-lease,
properly marked
- Insist that the sub-lease has a clause/covenant that upon expiry of the
term, the management company or whoever is holding a reversionary
interest will also give a similar term automatically.
SUBLEASES & SECTIONAL PROPERTIES

1) They are dependant on the headlease
2) They depend on a management company
Under the sectional title, the format of the transfer takes the form of prescribed instruments under RLA.
Rationale: The substantive law recognised in Kenya is RLA
The Sectional Properties Act was enacted in 1990 to facilitate transfer of flats through mortgage finance.
The lenders objected to subleases as security because:-
d) The titles were dependent on the head lease by the Government or Head
Lessor. Therefore, there was some uncertainty as to whether the lease would
be extended, if someone defaulted and the Bank had to sell, it would be hard
to get a buyer and extension wasn’t guaranteed.
e) Even where extension was guaranteed, the terms of extension were unknown
and uncertain therefore not good security
f) There was a distinct possibility that the head lessor would fail to apply for
extension of the lease
g) Also argued that subsistence of the sublease dependent on head lessor serving
his obligations.
Nevertheless, a grant was essentially the same as a lease, so this argument did not hold much weight.
The misconception was based on looking at a sublease (not as title but) as a lease!
These arguments led to the adoption of the Australian condominium legislation on subleases. The effects
were:
1. The RLA became the substantive law and a sectional title could be issued to an owner of a flat
which was registered under the Sectional Properties Act. If property not under RLA, you would
have to convert it to RLA. Flats owned under the Sectional Properties Act have titles issued which
are equivalent to grants. They are issued to each owner of a unit.
2. Corporate bodies are also established under the Sectional Properties Act similar to a company
recognised under the Companies Act BUT with no registration formalities. It is a corporate body
and has some liability. The moment a sectional plan is registered corporate bodies are
constituted. A sectional plan is the document prepared by a qualified architect or surveyor which
defines or describes in a graphic form the units constituting the sectional property. S.4 of the
Sectional Properties Act provides for the process of preparing a title which commences with the
registration of the plan. Upon such registration the parcel of land register on which the property
lies is closed and a separate register for each unit opened. The corporate entity established upon
registration is identified by the name which name refers to the number of the sectional plan e.g.
Sectional Plan No.22
The main difference between subleases and sectional properties is ownership of property.Termination of
the corporate body is unanimously by all the members of the body or through the court (by members
unanimously agreeing)
Distinctive features of Sectional Properties v Subleases

1) Operative law in sectional properties is RLA while in subleases it could be RLA, RTA or GLA
2) Under the Sectional Properties Act the title is a certificate of Sectional Title issued under RLA in
other subleases, the title is the lease itself
3) The corporate entity is registered automatically under s.17 of the Sectional Properties Act, while
in subleases, the corporate entity is incorporated under the Companies Act as a limited liability
company.
4) The statutory framework regarding conveyancing in the Sectional Properties Act is the same as
those under the RLA as well as the applicable legislation under Sectional Properties Act. For
subleases, the form will either take the general form under RTA, GLA/LTA e.g. if GLA -
assignment, if RTA – transfer
5) The generally accepted minimum term of subleases is 50 years. In the case of sectional
properties, the property will only be converted to RLA from RTA, GLA or LTA if it is more than 45
years.
TRANSFERS AND PARTS OF A CONVEYANCE (ONGUTO’S)

TRANSFERS
Whilst Sale Agreements are always drawn by the Vendor and forwarded to the Purchaser for approval, it
is the converse with transfers. Transfers are drawn by the Purchaser’s Advocates and forwarded for
approval by the Vendor. It is the Transfer that actually causes the disposition of an interest in land once
it’s registered. (See Section 54 of the ITPA, Section 3 of the RLA as to definition of “disposition” and also
LSK Condition 24). (cf. use of precedents. What are the dangers?)
PARTS OF A CONVEYANCE
Most conveyancing documents (e.g. conveyance, assignment, transfer, mortgage, charge) will besides
the administrative information i.e. the relevant registry, contain the following parts:
1. Commencement clause
This clause will comprise of details concerning the nature of the document, date and a brief description of
the parties. It ordinarily commences “THIS CONVEYANCE” or “THISTRANSFER”. The date is always the
date of execution by the vendor or assignor of interest.
2. Recitals
Constitute the descriptive parts of the document. There are two types of recitals: the introductory
recitals and the narrative recitals. The introductory recital for a sale agreement will for instance read
as follows: “the vendor has agreed to sell and the purchaser has agreed to buy all that parcel of land
known as Title Number Nyahururu Municipality Block 15/896…” Narrative recitals will for instance read as
follows “The purchaser admits that he has inspected the property and purchases asa result of that
inspection and not in reliance of anything warranted by the vendor either orally or in 2writing….”. The
recitals’ clause starts with the word “ WHEREAS” and whilst narrative recitals are designed to make the
title more intelligible as they provide a history of the property from the root to present day, introductory
recitals are intended to explain the intention of both the document itself and of the parties.
3. Operative Clause
Comprises of the testatum, consideration clause, receipt clause, the operative words, parcels clause,
habendum and the reddendum for leases.
(a) The Testatum is the clause that begins with words such as “NOW THIS DEEDWITNESSETH…” or
“NOW THIS LEASE WITNESSETH…..”. It is basically a declarationthat what follows contains details of
the operation of the deed.
(b) Consideration clause will ordinarily read “ In consideration of the sum of KShs.10,000,000/=the
Transferor hereby transfers to the Transferee all title, right and interest in all the above referenced parcel
of land.” Besides being necessary for purposes of the Stamp Duty Act it is also necessary to avail the
purchaser the remedy of specific performance.
(c) The receipt clause will read something like “Receipt whereof the transferor hereby
acknowledges…”. The clause avails to the purchaser or transferee the protection under the norm of the
bona fide purchaser for value without notice in the event of any claim by a third party.
(d) The operative words basically contain the words of the grant and capacity of the vendor.
Words of the grant are a statement as to what the vendor does by virtue of the deed or the transfer.
They include “Grant” for conveying freeholds under the GLA, “Assign” for assigning leaseholds under the
GLA and “Transfer” for transferring leaseholds and freeholds under the RTA.
(e) The parcels clause contains in concise terms the physical description or property.
Description of the L. R., Title or I. R., or C. R. Numbers is paramount. E.g. “All that parcel of land known
as I. R. No. 94453….” or “all the parcel of land known as Title Number Nairobi/Block 74/41” . Note
however that a false description or misdescription does not vitiate the deed.
(f) The Habendum clause describes the interest created. It defines the estate conveyed to the transferee
or purchaser. It defines the quantum of interest created. E.g. “The transferor transfers unto the
transferee all his title, right and interest in L. R. No. 209/15432 TO HOLD absolutely …” The
reddendum clause appears in leases only. It begins with words
“YIELDING AND PAYING…” . This part explains the amount of rental payable by the tenant and when it
is to be paid.
4. Covenants
These are the express agreements and obligations of the parties. For instance in a lease document
covenants will constitute the agreements of the parties such as the agreement to yield back on thepart of
the tenants upon expiry, the obligation/agreement on the part of the tenant to pay rent on the date
agreed, the agreement/obligation on the part of the landlord to insure and repair the externals of the
structure leased etc.
5. Testimonium
It begins with words such as “IN WITNESS WHEREOF…” This is the part of the document that links the
preceding parts of the document with the seal and signature part.
6. Execution
This is where the parties affix their seals and signatures as the case may be. This is also a key part of the
document.
7. Attestation Clause
This is where the witnesses to the signature sign. It will contain words such as “In the presence of”.
Normally attestation will be by the parties’ advocate in whose presence the document was signed.
8. Verification Clause
This is the clause that provides that a party appeared before an advocate and was property identified by
his I/D or was personally known to the advocate and that he understood the import or contents of a
document and that he signed voluntarily. It was previously a requirement of certain documents under the
RLA but with recent amendments to the law in November 2005 is now a requirement of practically most
conveyancing documents because of the requirement of passport size photos, PIN and identity card
numbers.
CONSTRUCTION OF DOCUMENTS
There are 8 fundamental rules of construction. These rules are enumerated and expounded on herein
below:
1. Express intention of the parties
Courts of law will look at the exact words used by parties in construing a document. The general rule is
that a court of law will not presume the parties’ intention in construing a document.
Clarity and simplicity are paramount in discerning the parties express intention. The use of plain, simple
language and short words and brief sentences is advisable. This is the best way to draft contracts. It is
also the modern way. Complex language can cloud people’s minds.
2. In construing a document a court will read the whole document . For instance where the
whole document includes a lease and Further lease a court of law will read both the lease and the
Further lease in-order to discern the intention of the parties. The document too is to be read in its
entirety and not selectively.
3. Words must be given their ordinary meaning
Ordinary meaning is the accepted grammatical meaning of the words. There are however two exceptions
to this rule. Courts of law will sometimes give words their special, technical or customary meaning. For
instance in a contract the words person will also include company, singular in many cases can be taken
to
include the feminine. Further, where the court is of the opinion that the ordinary meaning would lead to
some absurdity, repugnancy or inconsistency with the rest of the document it will modify the meaning of
that word to avoid such a result.
4. Extrinsic evidence will not be allowed to vary or contradict the term of a document.
The only exceptions are:
(i) Extrinsic evidence can be admissible to explain the meaning of word used or to resolve latent
ambiguity.
(ii) Surrounding circumstances existing at the time of the time of executing the document may be looked
at to place the court in the position of the parties.
(iii) Extrinsic evidence is admissible to show that a document is not binding on grounds of fraud or
mutual mistake.
5. Clerical errors will be corrected in accordance with proper grammatical spelling of

the words but the correction must be so as to give effect to a parties’ true
intention as appearing in the whole of the documents. Self-explanatory.
6.
6. “Contra-Preferentum Rule” where the document has been drafted in a language chosen by one of
the parties the document must be construed against the person who drafted it in the event of any
ambiguity.
7. “Ejusdem Generis Rule”
Where general words follow words of a peculiar class the general words must be construed aslimited to
the same kind as the particular words. E.g. in the phrase “cows” “goat” “sheep” andother animals the
general words and any other animals will be interpreted to refer to domesticanimals.
8. “Expessio Unius exclusion alterius” Rule
The general rule in law is that an express provision will automatically oust an implied provision. Implied
terms in a lease as are contained in Sections 53, 54 of the RLA and Section 108 of theITPA will be ousted
by express provisions contained in the lease document executed by theparties. Alongside this rule too is
the rule that “falsa demonstratio non nocet”. This latter rule is tothe effect that a false description in a
document does not prejudice or vitiate its effect. This latter rule is particularly applicable when
interpreting the parcel’s clause.
REMEDIES
Remedies are applicable in Conveyancing when the transaction for whatever reason is not completed
orwhen it is completed but one party still feels aggrieved. The remedies are either statutory, equitable
orobtainable under common law.
COMMON LAW
These fall into two categories
1. Damages
The whole purport is to ensure that the aggrieved party is compensated and thus restituted as ifthe
contract or transaction had actually been properly performed and completed. For this reasondamages will
be compensatory. The injured party seeks compensation for the loss occasioned bythe breach which may
lead to non-completion or completion but with some loss. In the case ofnon completion due to breach on
the part of the Vendor, the Purchaser shall be entitled todamages for loss of bargain. Substantial damage
may also be sought by the Purchaser wherethough the contract is performed there has been delay in
completion or the Vendor fails to givevacant possession. To succeed however the Purchaser must
establish his own ability to performthe contract. (cf. when is assessment of damages made: at date of
breach or date of judgment?)Damages may also be sought as a collateral remedy to any other remedy
available to theaggrieved party.
2. Rescission
This is basically the undoing of the contract by the court or the party aggrieved. It may be rescission ab
initio which describes the effect of the relief that is normally available when the formation of a contract is
affected by some vitiating factor such as fraud. The contract is here annulled and parties restored to the
position they occupied before the contract was made. i.e. restitution in integrum . Rescission may also be
rescission for breach. This connotes the consequence of an innocent party’s acceptance of the
repudiation of the contract by the other party’s breach of an essential term. This acceptance however
does not result in rescission ab initio and the innocent party’s entitlement to damages for breach
remains intact. Rescission for breach will arise where there is a misdescription or misrepresentation by
one party or presentation of a defective title or even for failure to complete on the completion date and
or after a notice to complete has been given.
EQUITABLE REMEDIES
The special character of land has led equity to ensure that a Purchaser or Vendor for that matter is not
left content simply with the common law remedy of damages for breach of contract. Damages may never
constitute adequate compensation for him. Two main equitable remedies exist in equity to parties to a
conveyancing transaction:
Specific Performance
This is a remedy available to and peculiar to land transactions. The Plaintiff (Purchaser or Vendor) seeks
a decree from the court ordering the other party to perform the contract specifically. There is no need for
breach of the contract itself to be entitled to specific performance . (see: Hasham –vs- Zenab 1960 AC
316). The remedy is however discretionary and the principles of equity will be applicable. E.g. Equality is
equity: thus it is available to both Vendors a Purchaser. Equity does not act in vain: thus if property has
been disposed of by the Vendor the remedy of specific performance will not lie.
Injunctions
This is also another equitable remedy. Breach or threatened breach must however be proven.
STATUTORY REMEDIES
A number of remedies are also available under statute to aggrieved parties.
Rectification available under the RLA (S.142), RTA(S.59), LTA (S.81), GLA (S.120)
Mortgagee’s/Chargee’s statutory powers of sale/appointment of receiver. RLA (S.74), TPA (S.69)
Damages available to Mortgagors and Chargors under S. 69 of the ITPA.
Forfeiture by lessors under S. 56RLA and S.112 ITPA.
JLO-AUGUST, 2008
louis@swiftkenya.com
CHARGES
 Definitions
 Distinctions
 Terminologies
 Further and Second Charges
 Duties and Responsibilities of Lender/Borrowers Advocate
 Form of charges
 Remedies of the Chargee/Chargor
 Reconveyances/Reassignments and Discharges
DEFINITION CHARGE
 S2 LA, S 3 RLA- an interest in land securing the payment of money or money’s worth or the
fulfilment of any condition and includes a sub-charge and the instrument creating a charge.
 Simply put- security for loan with an undertaking for repayment. It confers certain rights to the
Chargee from the Chargor
 S46 RTA advance of security by lender against a registered charge. The substantive law- s100 A
of ITPA which equates a legal charge under s 46 to the English legal mortgage
 S65 &84 RLA- charge operates as security but not a transfer S65(4). It was the only form of
security.
 S 80(1) LA- Charge to operate as security only and not as a transfer of any interest or rights in
land
DEFINITION: MORTGAGE
ITPA defines a mortgage as
“The transfer of an interest in specific immovable property for the purpose of securing the payment
of money advanced or to be advanced by way of loan, an existing or future debt or the performance
of an engagement which may give rise to a pecuniary liability”
Deals with transfer of interest as security for loan advanced. Transferor of interest= mortgagor while
transferee= mortgagee. The sum of money over which interest is advanced is known as the mortgage
sum. Though the transaction is between two parties- mortgagor and mortgagee, a 3 rd party called a
guarantor or a head lessor may be involved, the latter to give consent to assignment or sublease of a
leasehold interest as security for loan.
NATURE OF MORTGAGE
 Conveyance or transfer of interest in land or other properties; this could be legal or equitable
interest depending on the mode of creating the mortgage or the nature of the interest that the
mortgagor has in the property
 Consideration from the mortgagee to mortgagor in terms of loan
 Conveyance or transfer is not absolute- i.e. subject to cesser or redemption upon payment of
loan
 Both mortgagor and mortgagee have a mutual rights of action
DISTINCTION
 Mortgage- conveyance or assignment of land with proviso for reconveyance or reassignment

 Charge-confers rights to chargee to enable him recover money plus interest. See RLA S 3, LA S2
No transfer but security exists. It is only an encumbrance on the title
 Mortgagor says “take my land until I pay you”
 Chargor says “give me the money if I fail to pay, take my land”
 S 65(4) RLA a charge shall not operate as a transfer but shall have the effect as security only.
 Charge is regarded as a species of a mortgage
 S46 RTA, S100 ITPA- Create charge
TYPES
- S 58 ITPA
 Simple mortgage: no delivery of possession but mortgagor binds himself to pay or the property
will be sold
 Mortgage by conditional sale: the mortgagor sells the property to the mortgagee on
condition that the sale will become absolute upon default
 Usufructuary mortgage: possession is delivered with authority to retain it until payment, the
mortgagee also obtains rights to secure rent and profits to repay.
 English(legal):mortgagor transfers property to the mortgagee with a proviso that upon
payment of the mortgage money the latter returns it.( the best form and most popular)
EQUITABLE
 Creature of Equity. Traditionally there are 4 ways of creation of equitable mortgages
 By deposit of title
 Where money has been advanced and the mortgagee agrees to execute a legal mortgage
 If the estate or interest is equitable
 Written memorandum identifying the property and indicates intention to charge property.
 Equitable Mortgages Act(cap 291) recognizes the creation of mortgage by delivery of title
 S100(2)(g) of ITPA also recognizes them
 S66 of RTA also allows for equitable charges by deposit of title
 No equitable charges in RLA since it is the register that is prima facie evidence of the matters therein
(s32(2) RLA, RTA S23 certificate of Title is conclusive evidence of ownership(s23(1)RTA)
 Barclays Bank DCO V Gulu Millers (1959)EA 540
 Samuel Kenneth Ondendaal& the official receiver V Richard Gray (1960)EA 263
LEGAL OR ENGLISH MORTGAGE

 Based on pre 1926 English Mortgage. S 58(c) ITPA the mortgagor bound himself to repay the
mortgage money on a certain date and transfers the mortgage property absolutely subject to the
proviso that the mortgagee will retransfer it back to him on the repayment of the mortgage money.
 Form of security under GLA and LTA whose substa
LEGAL VS EQUITABLE MORTGAGE

Legal- transfers legal interest in land whether leasehold or freehold from mortgagor to mortgagee. It
must be created by deed or statutory form
Importance
 It is easier to enforce
 Priority-a legal mortgage without prior notice of an equitable mortgage takes priority over the
equitable mortgage
 Less prone to fraud than equitable mortgage where a borrower can obtain a provisional title and
deal with the property.
Equitable- transfers an equitable interest in land or other properties. It is an agreement to enter into a
mortgage agreement, created on the rules of equity. A mere deposit of a title deed in exchange for a
loan without a written agreement is an equitable mortgage;
Advantages-
 Small amounts
 Short repayment periods
 Urgency
EQUITABLE
 S 2 of Equitable Mortgages Act (cap 291) nothing shall invalidate charges made by delivery of
title to person with intention to create a mortgage
 Proof of intention- signing a memorandum
 This kind of mortgage emanates from the doctrine, equity considers done that which ought to be
done
 Reflection? How does this doctrine sit with S (3) of the Law of Contract Act?
 What about the requirement of registration of dispositions in land?
LEGAL MORTGAGE
 Based on pre 1926 English Mortgage. S 58(c) ITPA the mortgagor bound himself to repay the
mortgage money on a certain date and transfers the mortgage property absolutely subject to
the proviso that the mortgagee will retransfer it back to him on the repayment of the mortgage
money.
 Form of security under GLA and LTA whose substantive law was ITPA
TYPES UNDER THE NEW REGIME

LA recognizes
a) Formal charge: S79 (5) LA, prescribed instrument in prescribed register
b) Informal charge:S79(6) LA:
 written or witnessed undertaking from chargor accepted by chargee with
intention to charge
 Deposit of certificate of title or lease document or any evidence of ownership or
any undertaking observed by custom
S26 LRA certificate of title is conclusive evidence of proprietorship (this was the position with RTA)
Further V Second Charge S57LRA

 Further- additional facility by the same lender to the same borrower on the security of the same
property
 Second –a separate charge over the same property to a different
lender. S 2 LA defines a charge to include a sub charge
A chargee may charge the rights it has under the charge therefore create a charge out of a
charge in order to raise money as an alternative to assiging the debt. The subchargee
has the double security of the original chargor and the original chargee.
Basic Requirements of a Charge
S 46 RTA forms J (1) and J (2)
a) There must be a chargor
b) Name and description of lender
c) Description of property
d) Amount advanced
e) Acknowledgement of receipt of loan
f) Covenant to repay principal & interest
g) Special conditions (if any)
h) A charging clause
S 80(3) LA every charge instrument to contain:-
a) The terms and conditions of sale

b) An explanation of the consequences of default
c) The reliefs that the chargee is entitled to including the right of sale.
MORTGAGE INSTITUTIONS
 Central Bank?- licences banks and acts as a banker of the banks. Regulation is under the Central
Bank Act (Cap 491)
 Banks, financial institutions and mortgage institutions
 National Housing Corporation eg the tenant purchase scheme.
 Employees housing scheme
DUTIES OF ADVOCATES
Process of securitization starts with application by borrower for a loan. Lender will ensure that due
diligence is carried out- iecredit assessment of borrower and evaluation of property (this is an internal
process, if approached advise the bank to seek help of other professionals such as valuersetc).
Duties of Chargee’s Advocates Q1-2017, Q3-2015

1. The bank will then involve its advocates once it has prepared and secured the execution of the
offer letter by both parties
2. The following details are contained in the offer letter
a) Details of the parties- full names and addresses(borrower, lender, guarantor)
b) Amount to be lent/borrowed and amount to be secured by the property
c) Repayment period and repayment mode(monthly, quarterly
d) Particulars of property to be charged(title no or land reference
no. e) Details of intended security(informal or formal charge)
3. Advise the bank On
 The appropriate security, Informal(equitable) vs formal(legal) charge
4. Proper investigation of title
5. Confirm the capacity of chargor
a) Company- confirm if memorandum and articles allow for borrowing and charging
b) If Trustees-confirm if trust deed allows for borrowing and charging
6. Draft charge and send to borrower’s advocates for approval(mostly take it or leave it)
7. Confirm execution and attestation- Is Advocate qualified? Ndolo Ayah case
8. Engross the charge and send it for execution and attestation
9. Ensure execution and attestation is done in accordance with the law
10. Dispatch document to the lender for execution and attestation

11. Pay stamp duty (obtain from the borrower)
12. Lodge for registration at lands registry and companies registry (if it is a company within 42 of
registration of charge S 96, 97, 99 of Companies Act, void against liquidator), Cooperative
Societies- See Cooperative Societies Act
13. Forward the perfected documents to your client with a report on the title confirming the
registration
14. Obtain loan proceeds from chargee for onward transmission to the chargor
15. Follow up on fee payment
DUTIES OF BORROWER’S ADVOCATE

 Discuss offer letter with borrower and advise on effect of security
 Obtain all requisite consents, clearances from seller (usually upon a professional undertaking for
payment upon registration)
 Obtain original title from seller (usually upon a professional undertaking for payment upon
registration)
 Obtain a professional undertaking from the lender’s advocates that they will not use the title
document for any other purpose than for the transaction
 Approve the charge
 Explain the contents of the charge to your client and its effect
 Obtain adequate funds for stamp duty
 Conflicts of interests
Ethical and professional responsibility issues may arise. Remember the general principle that unless
you cannot avoid it, you should refrain from acting for both parties
King Woolen Mills Ltd &Anor vs. M/S Kaplan & Stratton [1993] LLR 2170 (CAK), (C.A
55/93).Uhuru Highway Development Ltd & others vs Central Bank of Kenya Ltd & others (2),
[2002] 2 EA 654.
In Mortgage Express Limited V Bowerman& Partners (1996) 2 ALL ER 836, It was held that
when you act for both borrower and lender, the highest duty is to the lender. Where 3 rd parties are
involved eg Spouse ensure that they have obtained independent legal advise. BBK PLC V O’brien
(1994)1 AC 180- the transaction can be challenged on this ground.
SUBSEQUENT CHARGES/ PRIORITIES

The process is the same with subsequent charges. The rules on priorities organize interests in ranking,
so that each party can ascertain which interests are prior and which are subordinated to his or hers. The
general rule is that the charge which is first made is first paid or discharged. Priority is conferred by
registration. The first registered charge has priority over all the others. See S81 LA.
TACKING
The right of a secured lender to add further monies to the security so that further monies are also
secured . The further advances are also tacked into the original charge and have the same priority over
subsequent lenders only with their consent see S 82 LA.
CASE LAW
Angwenyi&Ano V NIC Bank Ltd(2004) e KLR
Charge created but loan was not disbursed, bank sought to sell the property in satisfaction of a hire
purchase facility which was secured by vehicles that were purchased. It was held that since loan was not
disbursed there was no consideration that would entitle the bank to sell the property
Labelle International Ltd &Ano. V Fidelity Commercial Bank &Ano. (2003) 2 EA 541
The Advocate who signed the attestation certificate is not the one who witnessed the chargors’
signatures. This was an RTA charge which did not need to be attested. Application for injunction was
dismissed.
Anthony AnthanusNgotho t/a Ngotho Architects Vs NIC Bank Ltd HCCC No, 319 0f 2003
Mortgage prepared by mortgagee’s advocates exclusively. mortgagor had no counsel representation. The
Letter of offer was dated several months later than mortgage
It was held that the mortgage was validly executed
The apparent defect on the mortgage (ie it was created before the offer was accepted) is evidence of a
prima facie case.
IMPLIED TERMS S 88LA

a) To pay principle money on day appointed in charge and interest at rates agreed upon
b) Pay all rates, charges, rent, taxes and other outgoings
c) Repair and keep in repair all buildings and other improvements
d) Insure
e) Use land in a sustainable manner
f) Not to lease or sublease for more than a year without consent of chargee
g) Not to transfer, assign or lease without written consent of chargee
h) If a lease; to pay rent perform and observe covenants in the lease
i) If a second or subsequent charge, to pay interest on each prior charge when they fall due
j) In 2, 3, 4, 5 and 8 chargee may pay on behalf of chargor and include the amount so paid in principal
amount
FORM AND CONTENT OF A FORMAL CHARGE

 Commencement date
 The Parties
 Principal amount
 Recitals- the following facts are
recited The borrower’s title
Agreement to lend/borrow
Agreement to create a legal
charge
CONTENT
Testatum (now this Charge witnesses)
 Covenant to pay
 Interest
 Secured obligations- aggregate principal amount, all interest from time due, all costs, taxes, liabilities,
charges and expenses incurred by the bank from time to time in relation to the charge
 Charging clause.....Charge the premises as continuing security for the payment and discharge in full
of the secured obligations
 Chargors covenants
 Events of default
 Bank’s remedies
Serve notice as per Section 90 LA and if the Chargor does not comply(S90 (3)LA:
a) Sue the chargor for any money due under the charge
b) Appoint a receiver of income of the premises
c) Lease or sublease the premises
d) Enter into possession of the premises
e) Sell the premises
 Statutory power of
sale Before sale-
a) Serve 40 day notice
b) Value the premises
c) Prioritization of application of proceeds from sale ie rates, rent, taxes, discharge of prior charge,
all costs and reasonable expenses, discharge of principal amount, payment of subsequent
charges
 Further advances (S 82 LA), To rank in priority to any subsequent charge

 Right of consolidation- (S 83 LA), Chargee may consolidate
 Application of monies- to satisfy the debt
 Indemnity- chargor to indemnify chargee/receiver
 Power of attorney- chargor appoints the chargee to be attorney of chargor
 Discharge- upon payment of final balance
 Matters to be noted in the register- the banks rights of tacking and consolidation
 Governing law
ATTESTATION AND EXECUTION

S 38 LA, Contract for the disposition of an interest in land must be:
 In writing
 Signed by all parties thereto
 Attested by a witness who was present when it was signed
This section should be read together with S 44(1) LRA which provides that every instrument affecting the
disposition of land must be executed by each of the parties consenting to it. Section 44 (2) LRA-
execution should consist of the person executing the instrument appending his or her signature or
affixing his or her thumbprint or other mark as evidence of personal acceptance. S44(3)Execution of the
instrument by a Corporate body, association, cooperative society or any other organization should be
effected in the presence of an advocate, a magistrate, judge or a notary public. S45(1)LRA a person
executing the instrument is required to appear before the registrar, public officer or any other person
prescribed and be accompanied by a credible witness for purposes of establishing identity unless his
identity is known to the Registrar or prescribed officer. The Registrar or public officer must identify the
person executing the instrument and ascertain whether the person freely and voluntarily executed the
instrument and shall complete a certificate to that effect. (S45(2)LRA). This execution process must be
followed whenever executing all instruments under the meaning of disposition( which includes an
agreement to undertake these dispositions). Does this then mean facility letters for credit facilities, letters
of offer? S56(1)LRA requires that for charges the chargor must acknowledge that he understands the
effect of s 90 of the LA which among other things provides for the remedies of the chargee.
Signed by the Chargor ID No:................................

xxxxxxxxxxxxxxxxxx PIN No...............................
In the presence of .................................................
................................................ Chargor’s Signature
Advocate’s signature
I, yyyyyyyyyyyyyyyyyyyyy, an I, the above named chargor acknowledge

advocate of the High Court of that i understand the effect of Section
Kenya who witnessed the 90 of the Land Act (the Act) and the
execution of this Charge, Chargee’s remedies under this charge
CERTIFY that the above and I hereby agree that the Chargee’s
named chargor appeared rights under Sections 82 and 83 of the
before me on the ....day of Act and restrictions under Section 87
....2012 and(being known to of the Act and Section 59 of the Land
me/being identified to me by Registration Act be noted against the
sssssssssss acknowledge the above title.
above signature or mark to be .................................
his/hers and that he/she had Chargor’s signature
freely and voluntarily
executed this instrument and
understood its contents
Signed by ppppppppppp
The duly constituted Attorney of the chargee
Under and by virtue of a Power of Attorney registered at the Lands Titles Registry as
number................and at the Registry of Documents at Nairobi as Number......
In the presence of
......................
Advocate
I,CERTIFY that the above duly constituted Attorney of the Chargee, appeared before me on the day of
....2012 and(being known to me/being identified to me by sssssssssss acknowledge the above
signature or mark to be his/hers and that he/she had freely and voluntarily executed this
instrument and understood its contents.
..................................
Bank official’s signature

RETROSPECTIVE EFFECT
Part VII of the LA S 78(1)- has a retrospective effect that provides that provisions of Part VII shall apply
to all charges including any charge made before the coming to effect of the LA. Retrospectivity of
this Part may be challenged as being unconstitutional See Art. 116 (2).
VARIATION OF INTEREST
S 84 LA introduces an onerous provision that where it is contractually agreed that the rate of interest is
variable, the chargee must serve a written notice to the chargor
 Giving the chargor 30 days’ notice of the reduction or increase in the rate of interest
 Stating clearly and in a manner likely to be understood the new rate of
interest. It’s important for banks to keep proof of such service
Fraud, Dishonesty and Misinterpretation of Prior Chargee

S81(4) LA any misleading, false information by a prior chargor to a subsequent lender leading to creation
of a subsequent charge will result in the subsequent chargee getting priority in the exercise of its rights
over the property.
Spousal Consent
S79 (3) of LA provides that a charge of matrimonial home shall be valid only if any document or form
used in applying for the charge or used to grant the charge is signed by the chargor and any spouse of
the chargor living in that matrimonial home or there is evidence that it has been assented to by all such
persons.
A matrimonial home is defined under S 2 to mean” any property that is owned or leased by one or
both spouses and occupied by the spouses as their family home”
This provision should be read together with S 28 of LRA-overriding interests and S 93(3) of LRA. S93(3)
LRA provides that where a spouse who holds land or a dwelling house in his or her name individually
wishes to give a charge over that land or dwelling house, the lender shall be under a duty to inquire the
borrower as to whether his or her spouses has9have0 consented to the charge.
Where a lender wishes to take a charge over property owned by an individual, the bank must make
inquiries regarding the marital status of the potential chargor and also if the property is occupied as a
matrimonial home. The bank should also make inquiries through the valuer. If the spouse misleads a
lender as to whether his or her spouse has consented to the charge, the charge becomes voidable at the
option of the spouse or spouses who have not consented to the disposition.
Spousal Overriding Interest over Matrimonial Property

Spousal rights over matrimonial property have now being included as an overriding interest subsisting
over registered land whether or not those interests are noted on the register. S 28 LRA. Though not
defined matrimonial property encompasses more than the matrimonial home described in S 79(3) LA
defined in S2 LA. This is the doctrine of spouse deemed ownership- Are you married? Question will now
feature in land transactions S93(2)- Rights of spouse who only makes a contribution recognized though
not registered . Though the term ‘spouse’ has not been defined, the definition can be inferred from the
term marriage S 2 LA- a civil, customary or religious marriage. What about marriage by presumption?
REMEDIES
Chargor’s right
toredeem
Notice Lender’s remedies
EQUITY OF REDEMPTION
Equitable doctrine that there should be no fetter or clog on the chargor’s equity of redemption- any
provision which purports to limit, postpone or exclude the chargor’s equity of redemption is prohibited.
The right to redeem is absolute
S 89 LA – Any law, written or unwritten that entitles the chargee to foreclose (bar) the equity of
redemption is prohibited (S72(1) RLA
Lord Parker in Krelinger V new Patagonia Meat and Cold Storage Co (1914)AC 25 at 48-“ the
equity which arises on the failure to exercise the contractual right cannot be fettered or clogged by
any stipulation contained in the mortgage or entered into as part of the mortgage transaction”
Mortgage was a conditional transfer with the mortgagor covenanting to pay by CDR (contractual date of
Redemption)- Redemption means the right to buy back. Even though a charge does not involve a
transfer, the chargee can exercise power of sale therefore CDR is part of mortgage or charge.
At common law if repayment was not done by the appointed day, the conveyance became absolute;
equity found this too harsh since the lender’s right to the land was only a security for money. Equity
therefore allowed the borrower to redeem his property after the legal or contractual date of redemption.
On or before legal or CDR the chargor has the contractual right of redemption. If the legal or CDR date
passed without payment, the mortgagor obtained an equity of redemption. In Saleh V Eljofry (1950)24
KLR it was held that the mortgagor’s equity of redemption was a necessary incident of every mortgage
and failure to repay on the CDR did not debar the mortgagor from his right of redemption. Some charge
instruments allow for payment by instalments after the CDR with a provision that upon default the
chargee will be entitles to exercise any of its remedies. In Industrial and Commercial Development
Corporation V Kariuki&Ano(1977) KLR 52.- the court stated that the right of redemption subsists
until the transfer is registered.
Interfered with in two forms
 That which make the land irredeemable
 Collateral provisions in the nature of a fetter of a clog
 Nookes V Rice (1902) AC 24- mortgage had a stipulation that the mortgagor would
only sell liquor provided by mortgagee. The mortgagor sought release from this
clause on repayment-the court held that this was a clog to the equity of redemption
CLOGGED/FETTERED
Examples-
 Postpone the right to redeem for 20years Fairclough V Swan Bakery Co. Ltd 1(1912) AC 565- it
was held that this clause was invalid and the borrower had a right to redeem at an earlier date
 Mortgage conferred on mortgagee option to buy the property-This was held to be against
doctrine of equity of redemption- Samuel V Jarah Timber & Wood Paving Corporation Ltd
(1904)AC 323.
 Clause which allowed mortgagor a limited period of redemption was void
NOTICE
Under S 56(2) LRA, where the date of payment of the money secured by a charge has not been specified
or has passed without demand being made, the money becomes payable 3 months after service of a
written notice of demand by chargee to chargor. Notice must be issued before exercising of any remedy
under LA. Notice is issued in default of any obligation including failure to make payments where there is
default for a month or more. Under S 90(1) of LA where a default in payment has continued for more
than a month, the chargee may issue a statutory notice. This means that under S s 90(1) LA the notice
will run for 3 months. Notice should require the Chargor to pay the money owing or perform and observe
the agreement as the case may be.
Notice should inform the chargor S90(2) LA
 The nature and extent of default
 If default is non-payment of money, the amount that must be paid to rectify the default and
the time by which the payment in default must be completed (this should not be less than 3
months)
 If default consists of non-observance of covenants, what the chargor must do or not do to
rectify the default and the time for rectification should not be less than 2 months
 A statement that is the default is not rectified within the time specified, the chargee will
exercise any of its remedies provided in the Act
 The right of the chargor to apply to court for relief against those remedies
REMEDIES
Section 90(3) if the chargor does not comply within two months after service of notice, the chargee
may
 Sue the chargor for money due and owing under the charge
 Appoint a receiver of the income of the charged land
 Lease the charged land, or if the charge is of a lease sublease the land
 Enter into possession of the charged land
 Sell the charged land
Reference to 2 months in s90 (3) is onerous since s 90(2) provides that the chargor should be given at
least 3 months within which to rectify the default. S90 (4) if land is community land (Charge is only valid
if done with concurrence of family), Chargee can appoint a receiver of income of charged land or apply to
court for order to lease, sublease or sell the land. S90(5) form of Statutory Notice to be prescribed by the
Cabinet Secretary in consultation with the commission.
1. ACTION FOR MONEY

S91 LA- Chargee can sue for money secured if:
 Chargor is personally bound to repay
 The security is rendered insufficient (not by chargee or chargor’s fault) and chargee has
given chargor opportunity to provide additional security
 The chargee is deprived of the whole or part of the security through a wrongful act or default
of the chargor
This remedy should only be pursued if the chargee has pursued other remedies relating to charged land
unless the chargee agrees to discharge the charge
2. APPOINTMENT OF RECEIVER
S92 LA power to appoint receiver over income of charged property implied in charge instrument. After
notice under section 90 (1) the chargee has to wait a further 30 days before appointing one.
Appointment/replacement is in writing by chargee. Receiver is deemed to be chargor’s agent- he is given
powers in the name of chargor to take possession of property and deal with it by selling, leasing or
charging. Chargor is responsible for liabilities arising from acts of receiver.
Advantages- bank does not have the administrative burden of realization of security, the receiver’s costs
are recouped from the assets of the chargor-not more that 5% of money received S92(7) LA. See priority
of payment of money received by receiver- S90(8) LA
3. LEASING
S93- follows the appointment of receiver
 Lease can only be granted after 30 days upon expiry of notice
 To take effect in possession not later than 6 months after its date
 Reserve the best rent
 Not more that 15 years or length on term of charge whichever is shorter
 Contain reasonable terms and conditions having the interests of the chargor
 Contain a declaration of appointment of receiver by chargee
4. POSSESSION
S94 upon expiry of notice, the chargee can serve notice to enter and take possession at least one month
after service of notice. Entry must be peaceful. Entry is achieved by taking the management of the
property. Banks usually avoid this due to the administrative inconveniences involved and because they
will be held liable for damage to property and account for profits and rents.
5. CHARGEE’S POWER OF SALE

S96(1) LA where the chargor is in default of obligations under a charge and remains in default upon the
expiry of the demand under s 90(1) the chargee may exercise its power to sell. S 96 (2) before exercising
the power to sell the chargee must serve a notice to sell of at least 40 days. Copy of notice to sell to be
served on
 Commission
 Holder of the land out of which the lease has been granted if charged land is a leasehold
 Spouse of chargor
 Co-owner of chargor
 Any other chargee
 Guarantor
 Any other person with right to enter on and use the land or natural resources in it
 Any other person to be prescribed by regulations
Required of service on all this people makes the process tedious and longer. In summary the following
notices must be served;
a) 3 months demand S 56(2) only if date of repayment is not provided or demand is
not made on the repayment date.
b) If default continues for at least 1 month serve 3 month notice under S 90(1) LA
c) Forty days’ notice under S 96(2) LA
d) 45 days’ notice under the Auctioneers Act
POWER OF SALE- DUTIES OF CHARGEE

a) Duty of care owed to chargor, guarantor any chargee under subsequent charge- s 97(1) LA.
b) Chargee owes duty to chargor to obtain best price not more than 25% below market value (sale may
be declared void) S97 (3).
c) Property must be valued prior to sale S97 (2) LA to determine its forced sale value - The chargor may
apply to court to declare sale void if sold at a value that doesn’t meet this threshold.
d) S99 LA confers protection on the purchaser if there has been irregularity in the sale, he can claim
damages against the person exercising the power.
e) sale to chargee upon court order
f) S 79(9) LA a chargee shall not possess or sell land whose title document has been deposited with the
chargor under an informal charge without an order of the Court NB the word ‘chargor’ here should
read ‘chargee’
POWER OF SALE CONDITIONS- S98

Sale
 may cover the whole or part of the land

 May be subject to or free of any charge or encumbrance having priority to the chargee’s charge
 By way of subdivision
 By way of private contract at market value
 By way of public auction-with reserve price
 For a purchase price payable in one sum or by instalments
 Subject to any other conditions of the chargee
There are therefore more ways in which the sale can be conducted.
RELIEF
S 103 to 106 LA chargor, spouse, guarantor, lessee, trustee in bankruptcy may apply to court for relief
against the exercise by chargee of any of these remedies (error refers to remedies under s 85(3) (a) and
(b)). Scope of those who can sue has been widened. The Court has wide ranging powers including
widening the scope of orders by the court eg to extend time for chargor to rectify default- s 102 LA.
Court has power to reopen charges secured on a matrimonial home S105(1) and 106(2) LA.
POWER TO RE-OPEN CHARGE SECURED UNDER MATRIMONIAL HOME

Under S 105(1) LA Court has power to reopen charges secured on a matrimonial home in the interest of
doing justice between the parties. S106 LA Charges can be reopened in 3 instances, on an application
by:
a) Chargor or chargee to enforce a charge or commence an action under s 90
b) Chargor for relief against exercise of any remedy by chargee
c) Registrar where there is evidence of unfair dealing by chargee, or chargee is a
corporate body that discriminates against certain classes of chargorseg on basis of
gender.
RE-OPENING OF CHARGES
The court may:
1. Direct that the charge shall have effect subject to certain modifications
2. Require the chargee to repay the whole or part of the sum paid by the chargor
3. Require the chargee to compensate the chargor
4. Direct the chargee which is a corporate body to stop acting in a discriminatory
manner.
DISCHARGE OF CHARGE
Right to discharge in 2 forms:

i. S 85(1) , S 102 LA gives right to discharge- upon payment of all money secured by the charge
and performance of all obligations under the charge before the land has been sold by chargee
or receiver appointed. This right is in mandatory terms
ii. S 85(3) a charge instrument may provide that a chargor who wishes to exercise their right of
discharge before the expiry of the term of the charge shall give one month’s notice, shall pay
not more than one month’s interest at the rate at which interest is payable as well as all other
monies secured by the charge
It simply means the chargor has repaid the loan plus interest and penalties and the chargee has released
the title to the property used as security back to the chargor. Like the right of redemption it should not
be fettered or clogged- See S 85(2).
DISCHARGE Q5- 2019, Q1-2018

A discharge includes a re-conveyance, a re-assignment of charge. The mode of discharge to be adopted
depends on how it was created.
i. If the mortgage was created by way of assignment or a conveyance the discharge will be in
form of a re-conveyance or a reassignment
ii. If charge then a discharge of charge is prepared as per the prescribed form
Before sale or withdrawal from sale, the chargor may pay the amount due and the chargee may
discharge the charge and deliver to the chargor a discharge of charge and instruments of title. The
Chargor’s advocate prepares a discharge.
COMPANY SECURITIES
Securities given by companies sometimes differ from those given by individuals.
i. Company charges are subjet to registration under the Companies Act-S 96
ii. A company can create a floating charge over its assets so that it remains free to
deal with the asset until specified evets(eg appointment of receiver) occur and the
charge then crystallizes over certain assets and becomes a fixed charge
iii. A company can create an irredeemable debenture
iv. Directors can act ultra vires their powers to borrow
COMPANY CHARGES
Definition in S 2 CA is vague “debenture”, includes debenture stock, bonds and any other securities of
a company whether constituting a charge on the assets of the company or not
It is simply a document either creates a debt or acknowledges it. Debentures can come as single or
in a series. S88 of the Companies Act deals with debentures. Charges may be given by the
company to secure debentures
Fixed Charge
Floating Charge
When made, immediately attaches or fixes on
the ascertained property. The right and ability While it creates an immediate security, it does
of the owner to continue to deal with it is not create an immediate encumbrance on the
immediately encumbered title until certain events occur such as the
appointment of receiver and the charge then
becomes fixed on the listed assets-crystallization
132 of 270

Kingmaker Conveyancing 2023

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Kingmaker Conveyancing 2023

Uploaded by

Copyright:

Available Formats

YELLOW: QUESTIONS ASKED BETWEEN 2008-2022

PINK: ANSWERS TO THE ABOVE QUESTIONS

1.1 CONVEYANCING DEFINITION AND SCOPE

1.1 CONVEYANCING DEFINITION AND SCOPE

1.1.1 DEFINITION OF CONVEYANCING

1.1.2. THE NATURE OF CONVEYANCING

WEEK 2 -3 HISTORICAL AND REGULATORY FRAMEWORK FOR CONVEYANCING

2.2 LAND TENURE SYSTEM IN KENYA PRE-COLONIZATION

2.3.1 THE REGISTRATION OF DOCUMENTS ACT (CAP 285)

2.3.2 The Land Titles Act (Cap 283) Repealed

2.3.3 The Government Lands Act (Cap 280) Repealed

2.3.4 The Registration of Titles Act (Cap 281) Repealed

2.3.5 The Indian Transfer of Property Act of 1882 Repealed

2.3.6 The Registered Land Act (Cap 300) Repealed

2.3.7 The Sectional Properties Act (2020)

2.3.8 The Constitution 2010

2.3.9 The Land Registration Act

2.3.10 The Land Act

2.3.11 The Community Land Act

2.4 DEFINE LAND AND EXCEPTIONS TO THE DEFINITION

Buildings and other structures that are affixed to the land

2.6. CATEGORIES OF LAND UNDER THE CONSTITUTION

2.6 Categories of Land under the Constitution

2.6.1 Public Land

2.6.2 Private Land

2.6.3 Community Land

2.7. PROCEDURES FOR CONVERTING CATEGORIES OF LAND

Relevant legal provisions and statutes:

Public to Private Conversion:

2.8. CUSTOMARY LAND AND OVERRIDING INTERESTS

2.8 Customary Land and Overriding Interests in Conveyancing in Kenya

"29. Overriding interests

2.9. IMPORTANCE OF LAND

Culture and Heritage

2.10. PRINCIPLES AND GOALS OF REGISTRATION

a. To provide legal proof of ownership

b. To facilitate land transactions

c. To promote security of tenure

d. To promote sustainable land use

Relevant legal provisions and statutes

2.10.1 GENERAL ROLE OF THE CONVEYANCER

The general role of a conveyancer in Kenya conveyancing includes the following:

2.11.2 WRITING, EXECUTION, ATTESTATION AND VERIFICATION.

3.1.1 INSTRUCTIONS AND BRIEF

3.1.2 CONFIRMATION OF INSTRUCTIONS

3.1.3 CONFLICT OF INTEREST

3.2 PARTIES TO A TRANSACTION

3.2.1 Purchaser-Vendor Relationship

3.2.2 Lessee-Lessor Relationship

3.2.3 Mortgagee-Mortgagor Relationship

3.2.1 POWER OF ATTORNEY

3.2.1 POWER OF ATTORNEY

3.2.1.1 SPECIFIC POWER OF ATTORNEY

3.2.1.2 GENERAL POWER OF ATTORNEY

3.3 OTHER PROFESSIONALS IN THE TRANSACTION

3.3.1 Estate Agents

3.3.2 Land Valuers

3.3.4 Physical Planners

3.3.5 Land Surveyors

3.4 DUE DILIGENCE

3.4 Due Diligence in Conveyancing

3.4.1 Pre-Contract Inquiries

3.4.2 Investigation of Title, Searches, and Inspection of Property