ATP – 107 CONVEYANCING LAW

TOPIC: INTRODUCTION & KEY CONCEPTS

Mr. Tonny M Odera – Adjunct Lecturer

* 10th February 2024 * 8:00 – 10:00am
Sessions Objectives

The students are able to define conveyancing and its

01 scope.

Review and understand Conveyancing history

02 in UK -1535 and Kenya 1897

Students are able to understand the various

03 interests and tenures in land.

04
 Introduction: What is conveyancing?
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Conveyancing refers to;

 process by which legal title to property is transferred (Abbey &
Richards, 2000,18).
 the legal process of transferring a house or flat, commercial
property or piece of land from one owner to another (Council of
Licenced Conveyers in England and Wales)
N/B - Both definitions may however be limiting as Conveyancing
involves more than just drafting and registering documents.
Mr. Tonny M. Odera Monday, February 26, 2024
 Discussion point
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 What do the following phrases mean

✓ Conveyancing practice/protocol
✓ Conveyance
✓ Conveyancer
 What is the role of a Conveyancer? Sec. 34(1)
of the Advocates Act.
Mr. Tonny M. Odera Monday, February 26, 2024
 Introduction:
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 Conveyancing practice/protocol – refers to the branch

of advocacy in real property transactions or the
procedural side of the substantive law of property.
 Conveyance – refers to the document used to effect the
conveyancing.
 Conveyancer – is the qualified professional or specialist
lawyer retained by the parties to a transaction to deal
with the paper work and finances.
Mr. Tonny M. Odera Monday, February 26, 2024
 Roles and Duties of Vendor’s Advocate
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Vendor's Advocate Role

 Obtain full names of the parties, full particulars of the ppty, 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.
Mr. Tonny M. Odera Monday, February 26, 2024
 Roles and Duties of Purchaser’s Advocate
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 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.

Mr. Tonny M. Odera Monday, February 26, 2024

 Other duties include
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 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.
Mr. Tonny M. Odera Monday, February 26, 2024
 Can an advocate act for both parties?
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 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.
King woolen Mills and another v. Kaplan and Stratton
Advocates Civil App No. 55 of 1993

Mr. Tonny M. Odera Monday, February 26, 2024

 Reflection
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What is the relationship of the following other

branches of law to conveyancing law and practice?
 law of contract

 the land (law of real property)

 the law of torts

 the law of equity,

Mr. Tonny M. Odera Monday, February 26, 2024

 CONVEYANCING – Historical context
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FEOFFMENT – earliest/most important form of conveyance.

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. Mr. Tonny M. Odera Monday, February 26, 2024
 Historical Legislations - England
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 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 introduced the requirements of writing,
execution and attestation,
 the Real Property Act 1845,
 Land Transfer Act 1875,
 Vendors & Purchasers Act 1874
 1925 Law of Property Act which like the Registered Land Act Cap
300 Laws of Kenya was intended to simplify conveyancing.
Mr. Tonny M. Odera Monday, February 26, 2024
 HISTORICAL CONTEXT – Kenya
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Kenya’s conveyancing history is traced to 19th Century with

application of laws from the UK.
 First Statute was 1901 Registration of Documents Act.

S. 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.
These documents still registered under RDA - include; Trust
Deeds, Powers of Attorney and Building Plans.
Mr. Tonny M. Odera Monday, February 26, 2024
 Kenya’ historical legislation
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 Land Titles Act 1908 (LTA) which was intended to help

deal with the haphazard (deserted) parcels at the
Coastal strip of the country.
 1915 the Government Lands Act (GLA) was enacted to
deal with conveyancing and land titles in the interior
hinterland. (introduced a more systematic approach to
registration and provided for Deed Plans for all parcels
of land to the registered)
Mr. Tonny M. Odera Monday, February 26, 2024
 Kenya’ historical legislation
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 1920 the Registration of Titles Act (RTA) was enacted

based on the Australian Torrens system as to systematic
certainty of title. It provided for registration of and
guarantee of titles.
 The Registered Land Act (RLA) enacted in 1963 tried to
(modernize) conveyancing. The Act borrowed heavily
from the 1925 English Law of Property Act.
Mr. Tonny M. Odera Monday, February 26, 2024
 Historical Background of Land Law and
Conveyancing in Kenya from 1897 to 2015
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 The Registration of Documents Act (Cap 285)

 The Land Titles Act (Cap 283) Repealed
 The Government Lands Act (Cap 280) Repealed
 Registration of Titles Act (Cap 281) Repealed
 The Indian Transfer of Property Act of 1882 Repealed
 The Registered Land Act (Cap 300) Repealed
 The Sectional Properties Act (1987) Repealed
 Sectional Property Act, 2020
 The Constitution 2010
 The Land Registration Act, 2012
 The Land Act, 2012 Mr. Tonny M. Odera Monday, February 26, 2024
 Home Work
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 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?
READ
 - Ojienda Chapter 1 and 2 generally

Mr. Tonny M. Odera Monday, February 26, 2024

 THANK YOU ALL……..Bye bye
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Mr. Tonny M. Odera Monday, February 26, 2024