KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME 2024/2025

PROBATE AND ADMINISTRATION PROJECT WORK

COURSE CODE: ATP 108

COURSE INSTRUCTOR:

MR KIBET SANG

SUBMITTED BY:

FIRM 7 CLASS C

DATE OF SUBMISSION:
MEMBERS

NAME REGISTRATION SIGNATURES

NUMBER

1. JUDE OUNDO OCHIENG 20240354

2. MERCY RUTIVI 20241956

3. LEAH NJERI WANJOHI 20240373

4. JENIFFER MULWA 20240386

5. KIPROTICH K MATHEW 20241098

6. DENVER N. MWANGI 20241204

7. JANET KANGETHE WAMBUI 20240001

8. TYRENE ADHIAMBO WASONGA 20241231

9. ERIC NDERITU 20240361

10. COLLINS OCHOLA 20240358

QUESTION (A)
DISCUSS THE LEGAL REGIME GOVERNING CONVEYANCING IN KENYA,
PRE AND POST COLONISATION, NOTING TO PROVIDE SAMPLE TITLES
UNDER THE SAID REGIMES (5 MARKS)

1.1 PRE-COLONIAL LEGAL REGIME

Before the onset of colonialism in Kenya land was managed under customary laws with
ownership vested collectively within the community. This communal system did not recognise
individual land ownership.1 However, with the arrival of British colonialists, this system
underwent significant transformation. The British viewed the customary land tenures practiced
by most Africans as incompatible with their notions of development and modernisation,
Consequently, they sought to establish a tenure system that recognised land rights only through
individual freehold titles. Customary tenure in Kenya involved a complex and overlapping
individual and group interests derived from kinship relationships. This system did not align with
the British concept of absolute individual ownership, thus the colonial authorities deemed
unregistered customary land as vulnerable and open to appropriation and transfer to European
settlers.2 The colonial government regarded African customary land tenures as an impediment to
agricultural productivity and proper land use practices. 3 To facilitate the transfer of land from
Africans to settlers who were expected to engage in economically profitable farming, the British
introduced several statutes to govern land administration and registration in Kenya.

1.1.2 COLONIAL REGIME

The registration system in Kenya has evolved from deed registration to title registration. The first
title registration was developed by the RTA. 4 The deed registration system was established by
the British Colonial administrative system and was governed under the RDA. 5 Historically,
Kenya has had a complex system of land registration with different acts governing different

1
H.W.O. Okoth-Ogendo, ‘Tenants of the Crown: Evolution of Agrarian Law & Institutions in Kenya,’(ACTS Press,
Nairobi, 1991), 7-19.
2
Kieyah. J & Nyaga R. K., “Land Reform and Poverty in Kenya,” GDN Working Paper Series, Working Paper No.
17, September 2009, p. 5.
3
Maina S.C, “Registration Of Title To Land: A Critique Of The Land Registration Act No.3 Of 2012”
4
Wanjiku, Gikwa, And Macharia, ‘Evaluation Of The Process Of Land Registration According To Registration Of
Titles Act (Rta) System In Kenya’.
5
Ibid..
types of land and registration processes, each with its own set of rules and procedures. While
these have been replaced by the Land Registration Act, of 2012, understanding the old systems
can provide context for the current landscape.6

1901:The Registration of Documents Act (RDA), Cap 285

Enacted in 1901 sought to create a register of documents and provided for both
compulsory and optional registration. This legislation made it obligatory to register any
document that purported to confer a right, title or interest in immovable property. Owners
had the option to register certain documents such as Building plans, Wills, Powers of
attorney and Deed polls.7 The RDA served as a central registry for various interests in
land across the different systems, such as mortgages, charges, and easements. By
facilitating the registration of these documents, the RDA played a crucial role in
maintaining a central registry for encumbrances on land ownership. However, the RDA
had several shortfalls; it merely provided a record of the transaction without guaranteeing
its validity. The state could not vouch for the authenticity of the registered documents.
Consequently, purchasers had to independently verify that a vendor had a good root title,
adding a layer of uncertainty and complexity to land transactions. 8 The RDA lacked
prescribed forms which lead to inconsistencies and potential confusion in the
documentation process.

1908: Land Titles Act,(LTA), Cap 282

The Act was enacted in 1908 specifically to assist the government to differentiate
between private land and crown land leased from the Sultan of Zanzibar. 9 Under this
legislation persons entitled to private land were issued with Certificates of Ownership

6
Mwathane I, ‘The Conversion Of Title Deeds In Kenya: The Why, What And When?’,
<https://isk.or.ke/2021/05/26/the-conversion-of-title-deeds-in-kenya-the-why-what-and-when/> accessed on 17
February 2024.
7
ibid.
8
Wamae C & Guandaru J, “Digitization of the Lands and Companies Registries in Kenya”
<https://wamaeallen.com/digitization-of-the-lands-and-companies-registries-in-kenya-a-good-or-a-bad-
move>accessed on 7 June 2024.
9
Kimotho G, ‘ Land Legislative Regimes in Kenya An Analysis of the Legislative Regimes before and after the
Constitution of Kenya 2010’,
<https://www.academia.edu/5084728/Land_Legislative_Regimes_in_Kenya_An_Analysis_of_the_Legislative_Regi
mes_before_and_after_the_Constitution_of_Kenya_2010_George_Kimotho> accessed on 18 February 2024.
 granting them freehold title. For those with leasehold titles, Certificates of Mortgage or
Certificates of Interest were issued as evidence of ownership rights. While similar to the
RTA, the LTA applied to different regions like the coast region. This legislation issued
certificates of title instead of absolute title deeds, with slight variations in ownership
guarantee. It addressed uncertainties surrounding land titles and aimed to rectify the
limitations of the RDA. One of the LTA’s salient features was the establishment of a
registration system favouring individual title claims to the title. Additionally, it
introduced an adjudication process that was aimed at resolving conflicts between
claimants over land, offering recognition to longstanding claims of ownership without
creating new interests in the land10. While it introduced a compulsory registration system
its demarcation methods and descriptions of ownership were basic.

1915: Government Lands Act (GLA), Cap 280

This Act was enacted in 1915 and mostly dealt with land parcels considered as farmland
parcels such as land in Central Province, Kericho and Nairobi. 11 Title deeds issued under
this system contained the words ‘indenture’ ‘conveyance’ or' indenture of conveyance ‘as
part of their heading. This system governed the registration of government-owned land,
separate from privately owned land. It entailed specific procedures and restrictions for
utilizing or transferring government-owned land. The Act abolished the compulsory
registration under the RDA in respect of transactions relating to unalienated government
land.

1920: Registration of Titles Act (RTA), Cap 281

This statute came into force in 1920 intending to improve the issuance of titles to land as
well as regulate the same. Under this Act, the documents evidencing ownership were
Certificates of Ownership, Mortgage or Interest. The Registered Land Act (Cap 300
Laws of Kenya) focused on specific areas like Mombasa, issuing absolute title deeds for
freehold land and certificates of Lease for leasehold land. Furthermore, the Act

10
Wamae C & Guandaru J, “Digitization of the Lands and Companies Registries in Kenya”
<https://wamaeallen.com/digitization-of-the-lands-and-companies-registries-in-kenya-a-good-or-a-bad-
move>accessed on 7 June 2024.
11
Ibid
 guaranteed ownership in perpetuity, subject to specific provisions, providing a more
secure form of ownership compared to leasehold. Modelled after the title enactment of
the Federal Republic of Malaysia and the Transfer of Land Act, 1890 of Victoria, the Act
introduced conveyance by statutory form. Its enactment stemmed from settlers' desire to
have secure tenure, aligning with English property law. Originating from Australia's
Torrens system of registration, the Act marked a pivotal step towards establishing a
structured land registration system in Kenya.12

1.1.3 POST INDEPENDENCE

1959: Indian Transfer of Property Act (ITPA)

The ITPA was introduced in Kenya to reinforce settlers control over acquired land. This
Act governed property in terms of lease sleases, transfers, mortgages, covenants and
more.13 To address the issues of landlessness the government initiated an ambitious land
purchase and redistrinution program through settlement schemes. African farmers were
allocated plots of about 200 acres each with the “Million Acres Settlement Schemes”
being the most extensive14. These schemes resetlled over a million people on plots
ranging from 25 to 40 acres starting in 1962. These schemes resettled over a million
people on plots ranging from 25 acres to 40 acres from 1962. Another scheme was the
“Squatter Settlement Scheme” aimed to resettles squatters on abandoned and mismanaged
European farms offering smaller holdings of 10 acres each 15. The land in these schemes
was vested in the Settlemet Fund Trust which sold it in lots to prospective settlers.16

12
Maina S.C, ‘Registration Of Title To Land: A Critique Of The Land Registration Act No.3 Of 2012’,
<http://erepository.uonbi.ac.ke/bitstream/handle/11295/77064/Maina_Registration%20Of%20Title%20To%20Land
%20A%20Critique%20Of%20The%20Land.pdf?sequence=3> accessed on 17 April 2024.
13
Kimotho. G, ‘Land Legislative Regimes in Kenya An Analysis of the Legislative Regimes before and after the
Constitution of Kenya
2010’<https://www.academia.edu/5084728/Land_Legislative_Regimes_in_Kenya_An_Analysis_of_the_Legislative
_Regimes_before_and_after_the_Constitution_of_Kenya_2010_George_Kimotho?email_work_card=view-paper >
accessed on 5 June 2024.
14
Boone C & Luakalo F., 'Promised Land: Settlement Schemes in Kenya, 1962 to 2016' (2021) 89 Political
Geography 102393<.https://www.sciencedirect.com/science/article/pii/S0962629821000536#:~:text=The%20first
%20programs%20in%20the,1.2%20million%20acres%20of%20land> accessed on 16 May 2024.
15
National Land Commission ‘Mapping Settlement Schemes in Kenya’ <https://www.africa-spatial-
inequalities.net/uploads/2/9/5/3/29531783/mapping_settlement_schemes_in_kenya_doc__3.9.20_.pdf > 2 June
2024.
16
Ibid n13
1963: Registered Land Act (RLA) , Cap 300
The Act was designed to replace all the other registration statutes. The Act contained
both substantive and procedural law related to land under the Act. The substantive law
for the other statutes was mainly found in the Indian Transfer of Property Act (I.T.P.A). 17
The idea was mooted to create a uniform system of land registration leading to the
enactment of the registration of land ordinance in 1959 which eventually became the
registered land act cap 300 laws of Kenya. The R.T.A. and R.L.A. were both based on the
Torrens registration system, but R.L.A. was a more comprehensive statute. The
registration system embodied in the RLA is the one of title The Act. Served as a pivotal
legislation for registering leasehold land issued by the government for specific periods.
Certificates of lease documenting ownership during the lease term. This framework was
primarily applied to urban areas and public land allocations.

1.1.4 CURRENT SYSTEM

The Land Registration Act of 2012 has replaced previous legislation governing land registration
in Kenya, consolidating the process under a single law to simplify and streamline procedures.
Land registered under the previous system remains valid, with an ongoing effort to transition
these titles to the new system. The subsequent section of the article will offer insights into the
repealed systems and the current system for a comprehensive grasp of Kenya’s evolving land
registration processes. The Act unifies all land registration under one Act, simplifying and
streamlining the process.18 Central to its objectives are the enhancement of transparency,
efficiency, and security in land transactions, marking a significant step towards modernizing
Kenya's land administration practices. The Act provides two main types of titles: Certificates of
Lease for fixed-term ownership and Certificates of Title for perpetual ownership.

17
Nzomo P, ‘An investigation into land registration process and its effects on urban land development’
<http://erepository.uonbi.ac.ke/bitstream/handle/11295/96667/Nzomo%20Patrick%20S_An%20Investigation
%20Into%20Land%20Registration%20Process%20and%20Its%20Effects%20on%20Urban%20Land
%20Development.pdf?sequence=1> accessed on 17 May 2024.
18
Maina S.C, ‘Registration Of Title To Land: A Critique Of The Land Registration Act No.3 Of 2012’,
<http://erepository.uonbi.ac.ke/bitstream/handle/11295/77064/Maina_Registration%20Of%20Title%20To%20Land
%20A%20Critique%20Of%20The%20Land.pdf?sequence=3> accessed on 17 May 2024
1.1.5 KEY FEATURES OF THE CURRENT SYSTEM

1. Centralized Registry: Land information and ownership records are maintained in a

centralized electronic registry accessible through the Ardhisasa platform.19
2. Streamlined Process: The act aims to simplify the registration process compared to the
old systems, reducing steps and improving efficiency.

1.1.6 BENEFITS OF THE NEW SYSTEM

1. Increased Transparency: The centralized registry and online platform aim to improve
transparency and access to land information.20
2. Enhanced Efficiency: The streamlined process aims to reduce transaction costs and
processing time for registration and transfers.
3. Improved Security: The new system aims to strengthen land rights and reduce disputes
through clearer records and digital security measures.
4. Promote Investment: Secure titles facilitate access to credit and investment, potentially
boosting economic activity and development.
5. Improved land planning: the online platform aims to improve land planning in Kenya
by providing accurate and up-to-date information about land use and ownership. This
data can be used for planning and development and will go a long way in preventing
unplanned settlements and improper land uses that have been a common issue in the past.

1.1.7 CHALLENGES AND OPPORTUNITIES

Despite the reforms brought about by the Land Registration Act of 2012, several challenges
persist within Kenya’s registration landscape. These include limited awareness and accessibility
of the new system, particularly in rural areas where information dissemination may be lacking.
Additionally, there is a backlog of unregistered land and an ongoing conversion process from the
previous system to the current one.21 There have been concerns about data accuracy and
transparency in the land registry, highlighting the need for continued efforts to redress these
19
Kitolo C, ‘Is The Ardhisasa Platform A Blessing Or A Curse For Kenyans?’,
<https://propertyboutique.co.ke/ardhisasa-platform/> accessed on 19 February 2024.
20
<https://www.linkedin.com/pulse/ardhisasa-platform-blessing-curse-kenyans/ > accessed on 17 May 2024.
21
Gachago P, ‘Top ten challenges with the Ardhisasa System’<https://www.premieragent.co.ke/blog/top-ten-
challenges-with-the-ardhisasa-system-2/6187/#:~:text=While%20Ardhisasa%20is%20an%20excellent,newly
%20launched%20system%20is%20facing> accessed on 18 May 2024.
issues. Achieving full implementation nationwide demands continuous dedication and resource
allocation, particularly in rural regions. Simultaneously, prioritizing public awareness campaigns
to educate citizens about the benefits of the new system remains paramount. Additionally,
ensuring the integrity and completeness of data within the central registry is essential for
fostering trust and mitigating potential challenges in the land registration process.

While challenges remain, the unified land and property registration system represents a
significant step towards improved land governance in Kenya. Its successful implementation can
create a more transparent, efficient, and secure framework for land ownership, supporting
economic development and social justice.

QUESTION B
Due diligence refers to the authentication of title, identification and historical documents with a
client, and verification of litigation history over the property in order to make an informed and
secure investment22. For an off plan development, due diligence is tripartite: Project land,
developer and the project due diligence.
The Supreme Court Petition 8 (E010) of 2021) [2023] KESC 30 (KLR): Dina Management
Limited v County Government of Mombasa & 5 others (Dina management case) covers the
scope of project land due diligence. It mandates that a purchaser cannot be comfortable with an
instrument of title as proof of ownership and hide under the doctrine of a bonafide purchaser.
Instead, a purchaser has to go beyond the instrument and prove legality and show how
acquisition was legal, formal and free from encumbrance. Therefore, owning land whose root
title was acquired irregularly is not under protection by Article 40 of the Constitution. In light of
the Dina management case, the title is essentially a product of a process, and if the process is
flawed, so is the product, and that title cannot be indefeasible. Therefore, if the very first
allocation was flawed, then there is no valid interest than can pass subsequently. A purchaser has
to be cautious and undertake due diligence that includes tracing the legality of the title up to the
very first allocation or allotment or issuance.

22
‘COMPREHENSIVE DUE DILIGENCE ON LAND TRANSACTIONS IN KENYA: A BUYER’S GUIDE - CR Advocates LLP’ (28
September 2023) <https://www.cradvocatesllp.com/comprehensive-due-diligence-on-land-transactions-in-kenya-
a-buyers-guide/> accessed 24 May 2024.
2.1 Project land due diligence
Generally, there are 3 methods of investigating title to property, they include: Searches,Pre
contract inquiries and Requisitions.

2.1.2 Searches
As an advocate for the purchaser, one should first conduct an official search at the Lands
Registry by making an application through Form LRA 84, requesting for particulars relating to
the land, and thereafter obtain a Certificate of Official Search. This search will establish the land
reference number, the proprietor, particulars encumbrances and burdens. The advocate shall also
conduct official searches at the county government registry to establish that the land rates have
been paid and to ascertain the designated use of the land 23. At the survey department, the
advocate shall ensure that there are geographical coordinates(georefrencing) of the proposed
property. Meanwhile, they can also conduct a personal or unofficial search through the digital
platform Ardhisasa. The Dina management case is a shift from the Torrens system, particularly,
the mirror and curtain principle. Indeed, a purchaser cannot rely on the entries on the register and
assume they reflect the true status of the title. In National Land Commission v Afrison Export
Import Limited & 10 others [2019] eKLR, the Environment and Land Court at Nairobi also
pointed out the need for additional measures in confirming the validity of a search and the
ownership of land due to the inherent risks associated with the search system based on the
Torrens System of registration.
The Dina management case, strongly urges that one conducts a historical search. Mr. Chapa
kazi , the Vendor, indicates that he has been in business since the 1950’s and the laws relating to
property have been dynamic ever since. Therefore, as the purchaser’s advocate, one ought to
conduct a historical search at the Lands Registry to establish the history of ownership and
transactions that have been made relating to the land. The advocate or their clerk makes a request
to peruse the correspondence file and review the historical data to establish root of title. The
advocate also makes a request to inspect the Green card or the White card and the adjudication
record. The historical data on all the transactions is important, so as to ensure that all processes

23
‘Due Diligence Procedures in Land Transactions in Kenya: Five Steps. - Begi’s Law’ (25 October 2020)
<https://www.begislaw.com/due-diligence-procedures-in-land-transactions-in-kenya-five-steps/> accessed 23 May
2024.
were followed during the transactions. Moreover, they should peruse the Ndung’u Land report
with respect to the property, look through the NLC reports and related gazette notices.

2.1.3 Pre- Contract Enquiries

It is the duty of the purchaser’s advocate to advise their client to secure a site visit, and inspect
the property and utilities such as water. It is also an opportunity to check for patent defects. They
should also ascertain the property price quoted is worth the value, the boundary marks and the
neighboring property. Upon inspection, the purchasers advocate can write to the Mr.Chapa kazi
or their advocate making further pre-contract inquiries. However, they are not bound to respond
to the enquiries.

2.1.4 Requisitions
Requisitions are questions arising upon inspection of the title. Condition 10 of the LSK
Conditions of Sale, 1989 states that the purchaser has a period of fourteen days after receiving
the abstract, title deeds, or copies to raise any objections or requisitions regarding the title,
description of the property, abstract, or contract. The Vendor/ developers advocate is obligated to
respond to pertinent objections and requisitions made within 14 days upon receipt .If the
advocate fails to do so , or respond satisfactorily, then the purchaser can rescind the contract or
agreement.

2.1.4 Due Diligence of the vendor

A purchasers advocate ought to look into Chapa Kazi’s track record and credibility,He has been
in the business for long, so there is an assumption that he has had successful projects. The
advocate should look into these projects, and inquire whether they were successful and
possession was granted to the purchasers, or whether any disputes arose with other purchasers in
other projects24. They should also do a background check on the contractor and key players in the
project, and ascertain that they are licensed and have had similar successful projects with no
disputes arising25.

24
‘How to Carry out Due Diligence in Off-Plan Real Estate Investment’ <https://www.cytonn.com/blog/article/how-
to-carry-out-due-diligence-in-off-plan-real-estate-investment> accessed 24 May 2024.
25
ibid.
It is also important to call from the developer any charge affecting the property. This is crucial in
ascertaining the financial position of the developer, and ascertain any potential financial risks.
The advocate should do a background check on the financier and ensure that the entire process is
not a sham.

2.1.5 Due diligence on the project

For a yet to be completed development, reliance is placed on the architectural plans, building and
floor plans. Architectural plans or schemes by a licensed architect ought to be submitted to the
planning department of the county government as per section 32 of the Physical Planning
(Building and Development) (Control) Rules 1998.The plans are also reviewed by other
departments, including the public health, fire, water and sanitation etc. Upon review, the plans
are approved and registered and an official approval is given to proceed with the project. The
purchasers advocate should also ensure that the structural drawings have been approved by the
civil and structural engineering department in the county. The Building and Floor Plans. Should
be approved and registered under Section 4 sectional properties act 2022.
They should also call for the Environmental Impact Assessment (EIA) by National Environment
Management Authority as per the The Environmental Management and Coordination (Strategic
Assessment, Integrated Impact Assessment and Audit) Regulations of 2018, and the National
Construction Authority project compliance certificate as per Section 15 of National Construction
Authority Act 2011. The Vendor should seek approval from the Water Resource Management
Authority (WRMA) when construction is next to a water catchment area and from the Kenya
Civil Aviation Authority (KCAA) when constructing around public airports, airstrips, or military
barracks airstrips. If near a railway, there should be consent from the Kenya Railways
Corporation and from the Head Lessor. The Purchasers advocate should ensure that all these
licenses and permits have been acquired for the construction of the apartments.

QUESTION C
The Conveyancing cycle from the moment Chapa Kazi Mwekezaji walks
into my chambers to issue instructions to act for him, to the point of actual
disposition of ownership over the apartments (5 marks)

3.1 Initial Consultation and Instruction Issuance.

This meeting is often held between the client and the conveyancer to go over the legal
procedures involved in the transaction as well as acquire vital property information. The
objective of this meeting is to obtain a complete understanding of the client's requirements and
expectations. Property issues mentioned include legal description, address, and property kind,
among others.
Chapa Kazi Mwekezaji enters the advocate's chambers and announces his plan to sell apartments
in a development. He instructs the advocate to act on his behalf throughout the conveyancing
process.
3.2 Preliminary Due Diligence
A conveyancing lawyer's preliminary due diligence is an essential part of every real estate transaction.
This procedure entails a careful examination and analysis of several records, papers, and other pertinent
data pertaining to the asset being purchased or sold. Finding any possible legal or financial encumbrances
on the property that can interfere with the transaction or the client's interests is the aim of the stage of due
diligence. Due diligence also ascertains the authenticity of the titles and in compliance with the lease
terms. The firm may need to task a property valuer in order to provide for the value of the land before the
loan is taken. The
The advocate therefore conducts initial due diligence to verify Chapa Kazi Mwekezaji's ownership of the
property, the status of titles, any existing encumbrances, and regulatory compliance. The firm will further
review any relevant agreements, permits, approvals, and contracts related to the development before any
action of conveyancing is started.
CONVERSION OF THE MOTHER TITLE INTO LRA REGIME –
MENTION THE PROFESSIONAL UNDERTAKING TO THE BANK
FORM LRA 97 ACCOMPANIED BY ORIGINAL TITLE
RESERVATION FORM
PREPARATION OF OFFER LETTER & LETTER OF INTENT
DRAFTING OF THE EXECUTORY AGREEMENT – CONSTRUCTION STAGE
TRUST??
CONSTRUCTION
CONSENTS: NEMA, KENYA RAILWAYS,
DEFECT LIABILITY PERIOD
COMPLETION STAGE
DOCUMENTS, CERTIFICATES, CERTIFICATE OF PRACTICAL COMPLETION AND CERT OF
OCCUPATION,
REGISTRATION
PURCHASOR SENDS TRANSFER INSTRUMENT AND YOU SEE TO ITS EXECUTION
MANAGEMENT COMPANY
3.3 Registration
THIS STEP IS to register the sectional plan from the building plan that was filed. The sectional
properties statute provides a sectional plan. Section 4 of the legislation allows structures to be
divided into pieces by registering a sectional plan developed by a surveyor and approved by the
county authority. By presenting a sectional plan to the registrar, they would need to obtain titles
for each subunit. Then, as specified in the plan, start a separate register for each unit and issue a
certificate of title for each sectional unit. The regulations explain the method for carrying out this
registration and what should be included in the sectional plan.
The procedure for registration of a sectional plan has been highlighted in rule 9 of the
regulations, it provides that an application for registration of the section plan is lodged at the land
registry in the form LRA 9 set out in the sixth schedule of the land regulations of 2017 to be
filed in quadruplet forms.26 The rule also requires that an application to register a sectional plan
be followed by an application to form a management corporation for the common spaces. The
management corporation will be led by the unit owners. The regulations have also mandated that
these sectional plans describe the usage of each unit in the form SP 4, as set out in the first
schedule, in order to be in conformity with set institutional regulations. 27 When intelligentsia will
be making an application for the registration of the plan, they need to specify the use of each
unit.
Once a sectional plan is registered, Rule 12 of the regulations requires the land registrar to
submit the registered plan to the county government for rate apportionment within 21 days.
Separate registers for each sectional unit will be opened upon the successful registration of the
sectional plan, subject to Section 54(3) of the Land Registration Act.
REGULATION 18
3.4 Marketing and Advertisement

26
Sectional properties regulations of 2021, rule 9(1)
27
Sectional properties regulations of 2021, rule 7(1)
The procedure comprises a thorough inspection and analysis of several records, papers, and other
relevant data related to the item being purchased or sold. In an off plan, the developer promotes
the project to the public by offering full information on the development. For example, by
promoting floor plans, local attractions, and the location of the housing project, among other
things. It is vital for Intelligentsia to present paperwork under Section 43 of the Sectional
Property Act to the purchaser.28Because the land in question is charged, the developer will need
to furnish additional documents apart from the ones listed in sec 43(2). Such information
includes, the principal amount of the charge, Monthly payment made, the period of repayment.29
Reservation form
This is a form that confirms interest in a specific property within a development. It outlines the
terms of reservations including the agreed upon price and any other conditions.
REFER TO CHAPAKAZI
3.5 Drafting an offer letter
At this point, the purchaser is given an offer letter, which is significant since it shows the buyer's
commitment to the deal. An offer letter would typically include the terms and conditions of the
deal, the purchase price, and the deposit necessary, among other things. The purchaser is
however required to sign this letter in the presence of his advocates. However, an offer letter is
not a legally binding contract, but just a proof document. This is the acceptance of offer stage in
a contract. A purchaser then pays a deposit, it is usually a percentage of the purchase price stated
in the offer letter. A deposit is usually a 10% of the purchase price. 30It can also be a percentage
of the purchase price as agreed upon in the purchase agreement.
For instance, condition 5.3.1 states what time a deposit should be paid by the purchaser which is
on or before the date of agreement.31 This is important, as it demonstrates a purchaser’s
commitment to the transaction. Intelligentsia is depending on purchaser’s deposits as one of the
methods of financing the project it will be given before the agreement to demonstrate their
commitment towards buying a unit.
3.6 Drafting and Negotiation of Sale Agreements:
Upon acceptance of the offer letter, the advocate creates sale agreements for the flats based on
the directions and findings from due diligence. Vendor/developer advocates create a purchase
28
Sectional properties act of (2020) section 43
29
Sectional properties act of (2020) section 43(2)
30
Law society Conditions of sale, 2015, condition 2(m)
31
Law society conditions of sale, 2015, condition 5.3.1
agreement for selling and provide it to the buyers. The purchasing agreement includes key
clauses. Such clauses include the purchase price, deposit/instalments, project duration,
completion date, payment plan, and so on. This contract establishes the rights and obligations of
both the developer and the purchaser. As a result, by signing the purchase agreement in front of
his advocate, the buyer agrees to purchase the sectional title off plan. The purchaser has the right
to make unscheduled visits to the project site to monitor its progress. If all parties accomplish
their tasks at this step, the units are finished, and completion is required. After completion, the
developer and vendor will conduct a joint inspection to ensure that the property meets the
agreed-upon requirements.
In this instance, Chapa Kazi Mwekezaji and prospective purchasers may negotiate terms,
conditions, pricing, and timetables. Chapa Kazi may also use my talents as an advocate to get the
finest terms.
3.1.4 Execution of Sale Agreements.
The vendor/developer advocates create a purchase agreement for sale and distribute it to buyers.
The purchasing agreement specifies key clauses. The purchase price, deposit/instalments, project
duration, completion date, payment plan, and so on are all examples of such terms. This
agreement is significant because it specifies the rights and obligations of both the developer and
the purchaser under the contract. As a result, by signing the purchase agreement in the presence
of his advocate, the purchaser agrees to purchase the sectional title off plan. The purchaser has
the right to make unscheduled visits to the project site to monitor the development progress.
If obligations are fulfilled by all parties at this final stage the units are complete and completion
has to take place. At completion the developer and the vendor will conduct a joint inspection of
the property to ensure it meets the agreed-upon specifications.
In this case therefore, Chapa Kazi Mwekezaji and the purchasers sign the contracts, and any
required payments, such as deposits, are made.

3.1.5 Completion of Conditions Precedent.

In Kenya, there is no clear legal provisions on sale of off-plan developments. The sectional
property regulations herein referred to as the SPA is used to regulate property under off plan.
After the of plan is completed, they are are then registered as sectional property therefore the
aforementioned act applies. Section n 4-13 of the SPA provides for the procedure which the
management corporation regulates and manages the property. Sectional unit conversion
according to Section 18 of the Act, long-term leases must be converted to sectional units if all
units are transferred to the owners and the management company holds the reversionary interest
in trust for the owners as stated on the title.
Section 37(2) of the Land Registration Act states that a transfer is accomplished by filling out the
instrument and registering the transferee as the proprietor of the land, lease, or charge. Section
54(3) of the Land Registration Act allows sectional property owners to register their interest in
the land. In this regard, completion of off-plan sales of residential/commercial units will be
handled under the Sectional Properties Act, as the units have already been erected and will be
completed.
The issuance of a sectional title begins with division of the building into units and registration of
sectional plans in respect of the units. 32 The owner, Mchapa Kazi, files for registration of the
sectional plan at the land’s office, accompanied by the original title and an application for
33
registration of the corporation in line with Regulation 9. Upon paying the specified fees, the
Registrar will issue a certificate, which can be either a certificate of title for freehold land or a
certificate of lease if the property is leased, clearly stating the proportionate share of the common
property.
Granting legal possession of the property to the purchaser.
Condition 10.1 as read with condition 8.6.3 provide that the Purchaser shall not be entitled to
possession of the Property until the Purchaser has paid or unconditionally authorized the release
of the whole of the Purchase Price to the Vendor.34
LRA 23 form on the application by an interested person to ascertain and fix land boundaries is to
be filled. The individual purchasers will fill the form in line with the surveyors report and
architectural design. For one to secure a property off plan, all one needs is a deposit which is
usually 10% to 20% of the purchase price. Balance will be paid on completion or by flexible
periodic instalments. This means that upon completion of the residential /commercial units, and
after registration, the purchaser has to pay the whole amount as agreed in order for him to be
granted full possession of the unit.

32
Prof Tom Ojienda. Land law and Conveyancing: Principle and Practice.
33
Regulation 9 of the Sectional Properties Regulations 2021. Laws of Kenya
34
LSK conditions of sale.
CONVERSION AND EXTENSION OF LEASE
CONVERSION
extesion of lease