Introduction To Conveyancing - Part 1

Introduction to
Conveyancing
CONVEYANCING DEFINED
 Conveyancing - the process by which legal title
to property is transferred.
 conveyance - the document used in transferring

legal title to property.
 Conveyancing is the art or science of

effecting the transfer or property or modifying
interest in relation to property by means of
written document or any other document.
Conveyancing takes from here, there and
everywhere, from within the full range of
the law.
Conveyancing
Land Law of
Equity
Law Contract
 Conveyancing is not a frozen topic.
 It
is a fast moving and fast-changing area of
law and practice.
 The key to understanding the nature of

conveyancing is to appreciate how it calls
upon various disparate areas of law.
 Conveyancing requires you to blend your

knowledge.
QUESTION:
Discuss the relationship between
conveyancing and the following branches
of law:
(i) land law,

(ii) law of contract,
(iii) law of equity
(iv) Law of succession
(v) Company law
QUESTION:
Is conveyancing contractual,

jurisdictional, or a hybrid of both?
HISTORICAL BACKGROUND OF LAND
LAW & CONVEYANCING
England from 1535 to 1925
 In 1051 AD, conveyancing was effected by means of a

feoffment.
Feoffment - a document noting that one particular

lord was transferring his interest in land to another
lord. This was never complete until a public
ceremony known as the „delivery of seisine” in the
presence of all the lords follows by delivery of the
physical possession e.g by way of a taft of grass being
transmitted. Lord of Manor witnesses the ceremony
completing the process.
 In 1535 a statute was enacted called the
Statute of Users. This was to forestall what
the crown and lords deemed to be loss of
their earnings. There still was no
registration and delivery of possession was
no longer mandatory.
1677-1925
 Real Property Act, 1845
 Land Transfer Act, 1875 (amended in 1897)
 Vendor and Purchasers Act, 1874
Registration was not strict. Up to the turn of the 20th
Century, it was easy to know who owned what
property.
1925
 Law of Property Act. It was at this time that folios
were introduced.
 Simplification of conveyancing was necessary.
 Surrenders, releases, partitions and various
interests.
MEANWHILE IN KENYA......
KENYA 1900 THROUGH 1978 TO TODAY
Registration of Documents Act, 1901 (Cap
285)
 Provided for the registration of deeds conferring only

interests in property. There was only one registry.
The documents under the RDA did not prove title,
only possession did.
 It was compulsory to register all documents relating

to land. Any document that conferred, limited or
extinguished rights, titles or interests in land was to
be registered.
Land Titles Act, 1908
 Providedfor registration of deeds and

documents. Originally applied to coastal
land.
 An absentee owner losing his land was

curbed under this Act because the Recorder
of Titles was created. The Recorder
adjudicated disputes and on satisfaction that
the land belonged to a particular party, he
granted a certificate to that person. There
still was no proper way of registration of title
Government Land Act, (Cap 280)
 Introduction of deed plans scientifically created by
surveyors
 Provided that any conveyance of an interest in land

had to be by deed under seal.
 The Act was enacted to make further and better

provisions for regulating the leasing and other
dispositions of Government Land and other related
issues.
 Before being repealed, the Act governed all freeholds

and leasehold interests granted by the Government
prior to 1920, with the exception of leaseholds
converted to 999 years or to freeholds under the RTA.
Registration of Titles Act, 1920, Cap 282
 All successfully claimed plots were registered under
this Act. It also introduced conveyancing by statutory
form. It was enacted primarily for the purpose of
improving the issuance of titles to land as well as
regulating transactions in the same.
Registration of Lands Act, 1963 (Cap 300)

 Introduced title deeds and a register showing
ownership, sections and encumbrances. It borrowed
heavily from the English Land Property Act and
prescribed simple forms for registration and transfer
of land.
Constitution, 2010
CONSTITUTION, 2010
 Chapter V specifically deals with matters of land and land
tenure, dividing the tenures into public, private and
communal
 Art 40 – property rights
 Art 60 – principles of land policy
 Art 65 – reduction of interminable long tenure of 999 years

to 99 years for foreigners
 Art 67 - National Land Commission
 Art 162 – Environment and Land Court, with the status of

High Court.
LAND ACT, 2012
 gives effect to Art 68 of the Constitution, to revise,
consolidate and rationalize land laws in Kenya.
 The Act expounds on “land” to give it a more

encompassing meaning, rather than previous
confusion (Art 260)
 Conversion of public land to private land requires

parliamentary approval
 Repealed the Land Acquisition Act (Cap 295) and the

Wayleaves Act (Cap 292).
Acquisition of land through:
 Allocation
 Settlement Programs
 Land Adjudication process
 Transmission
 Compulsory acquisition
 Transfers
 Long terms leases exceeding 21 years created

out of private land or other manner prescribed
by an Act
LAND REGISTRATION ACT, 2012
 objectof the Act is to revise, consolidate and
rationalise the legislations relating to the
registration of title to land, to give effect to the
principles and objects of devolved government in
land registration.
 Repealed the Indian Transfer of Property Act,

Government Lands Act, Registration of Titles Act,
the Land Titles Act and the Registered Land Act
 simplified the whole process of land adjudication

CONVEYANCING; SCOPE & DEFINITION
Deals with various stages of a transaction,
namely:
 Preliminaries
 Investigation of title e.g searches, examination

of documents of title
 Drafting
 Contractual stage – negotiation of terms
 Completion stage, also involving registration
 The construction or interpretation of

documents
 Conveyancing may also involve litigation
DUTIES OF A CONVEYANCER
A properly done conveyancing process entails:
 Preparation of contract for sale of land

 Investigation of title to land
 Searches to establish the legal ownership of

land and the presence or absence of
encumbrances
 Preparation of other conveyancing
documents, approving and engrossing them
 Registration of the said documents to
transfer either ownership or security or even
a discharge of interest.
 Acting for the Vendor
 Acting for the Purchaser
 Acting for both parties
Juma Muchemi –vs- Waweru Gatonye

(Nairobi HCCC No. 853 of 2002)
L. N. Momanyi & Company v Nurein
M.A. Hatimy & another [2003]
Reading List
 The Constitution, 2010 (Bill of Rights, Chapter

5)
 Land Registration Act, 2012
 Land Act, 2012
 Registration of Documents Act
 Njonjo Commission Report, 2002
 Ndung‟u Report, 2006
 National Land Policy, 2009

 Mbui vs- Mbui (2005)
 Esiroyo –vs- Esiroyo (1973)
 Echaria –vs- Echaria
 Obiero –vs- Opiyo & others (1972)
 NBK Ltd –vs- Wilson N. Ayah & Another (2009)

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What are the main stages involved in a conveyancing process?

What are the main stages involved in a conveyancing process?

What are the duties of a conveyancer?

What are the duties of a conveyancer?

Introduction to

 conveyance - the document used in transferring

 Conveyancing is the art or science of

 The key to understanding the nature of

 Conveyancing requires you to blend your

(i) land law,

Is conveyancing contractual,

 In 1051 AD, conveyancing was effected by means of a

Feoffment - a document noting that one particular

 Provided for the registration of deeds conferring only

 It was compulsory to register all documents relating

 Providedfor registration of deeds and

 An absentee owner losing his land was

 Provided that any conveyance of an interest in land

 The Act was enacted to make further and better

 Before being repealed, the Act governed all freeholds

Registration of Lands Act, 1963 (Cap 300)

 Art 40 – property rights

 Art 60 – principles of land policy

 Art 65 – reduction of interminable long tenure of 999 years

 Art 67 - National Land Commission

 Art 162 – Environment and Land Court, with the status of

 The Act expounds on “land” to give it a more

 Conversion of public land to private land requires

 Repealed the Land Acquisition Act (Cap 295) and the

 Long terms leases exceeding 21 years created

 Repealed the Indian Transfer of Property Act,

 simplified the whole process of land adjudication

 Investigation of title e.g searches, examination

 Contractual stage – negotiation of terms

 Completion stage, also involving registration

 The construction or interpretation of

 Preparation of contract for sale of land

 Searches to establish the legal ownership of

 Acting for the Purchaser

 Acting for both parties

Juma Muchemi –vs- Waweru Gatonye

 The Constitution, 2010 (Bill of Rights, Chapter

 Land Act, 2012

 Registration of Documents Act

 Njonjo Commission Report, 2002

 Ndung‟u Report, 2006

 National Land Policy, 2009

 Esiroyo –vs- Esiroyo (1973)

 Echaria –vs- Echaria

 Obiero –vs- Opiyo & others (1972)

 NBK Ltd –vs- Wilson N. Ayah & Another (2009)

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