CONVEYANCING PROCESS IN KENYA

The procedure for buying, selling and transferring land

Introduction
Due diligence. This is the single most important guarantee for a successful
land transfer. The process of transferring land must conform to the laid down
legal requirements in order to be enforceable in law. Parties must act in
accordance with and comply with every stipulation of the process. The
consequences of failing to do so are fatal. A party could end up with an illegal
sale agreement which, in law, is unenforceable. Not even a Court can lend a
helping hand to a person with an illegal agreement. The best the Court can
do is to grant them sympathy, which unfortunately would not be sufficient
remedy.
This article seeks to summarize the process of land conveyancing in Kenya. In
order to do so, the first part will define conveyance and outline the three
phases of the conveyancing process. The particulars of each phase will then
be examined, while formulating a step-by-step guideline of how to transfer
land. In the end, it will be seen that although the law offers some protection
to land purchasers, a purchaser nevertheless bears the primary responsibility
of ensuring that he obtains a good and untainted title.
Definition of conveyance
Black’s Law Dictionary defines ‘conveyance’ as the process of passing,
transferring or transmitting title to land from one person to another. The
transfer is carried out by deed or an instrument such as a sale agreement.
Conveyance may also denote other dispositions of land such as leasing,
licensing and charging. However, the primary concern of this article is the
transfer of land.
The conveyancing process entails three phases. Firstly, the ‘due diligence’
phase. Secondly, the ‘contracts’ phase. Thirdly, the ‘completion’ phase. The
‘due diligence’ phase is where the parties carry out in-depth research
concerning the land before even contemplating entering into an agreement.
The ‘contracts’ phase is the paper works stage where relevant documents,
forms and agreements are filled and signed before completion. Each phase
contains sequential steps, which we shall unpack accordingly.
A. Phase 1: Due Diligence
Due diligence is the investigation and exercise of care that a reasonable
person is expected to take before entering into an agreement with another
party. In essence, before embarking on a land transfer, a party is expected to
thoroughly do his homework. The importance of this exercise cannot be
overstated. A party who has failed to exercise due diligence is stripped off
the protection of the law with respect to rights and claims arising out of that

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transaction. He will be left without remedy on account of his own culpable
carelessness or negligence.
So, what exactly does ‘due diligence’ in the conveyance process entail?
Before paying any money, the purchaser must examine the land, its history
and status. In the first place, this calls for the carrying out a search at the
land registry to establish the current registered owner of the land. The search
shows the name the land is currently registered under, its previous owners,
any encumbrances encroaching it and whether a caution has been placed
over it.
Carrying out a search appears to be sufficient due diligence. After all, the
records at the land registry are maintained by the government and are
therefore 100% accurate, right? Unfortunately, that is not the case. There are
a number of risks surrounding solely relying on the results of a search. For
instance, the register may have been tampered by fraudulent crooks who
collude with corrupt land registry officials. The land may be ancestral land
encumbered by overriding interests not necessarily entered into the register.
Therefore, a search may not present a conclusive reflection of the current
status of the land. For these reasons, a search is not sufficient. It must be
accompanied by further enquiries into the exact status of the land. The court
in NLC v Afrison Export Import Limited & 10 others [2019] eKLR, held
that when undertaking due diligence, one must go further than a mere
search, since a search is not conclusive evidence of ownership of land.
It would be prudent for the purchaser to engage the services of a surveyor,
who with the assistance of a land map, would determine the landscape and
boundaries of the subject land. It would also be important to check with the
county government offices whether the owner owes any land rates. Of
greatest significance would be for the parties to carry out a ground
verification of the land. This involves physically visiting the site in a bid to
verify factors such as whether the land is vacant, who is in possession or
occupation, the extent of the boundaries and the general quality of the land.
As is popularly expressed, “on the ground things are different.” It is essential
to avoid surprises.
During ground verification, the purchaser will also proceed to ascertain
whether the land they wish to buy is ancestral, and if it is, whether the family
has consented to the sale. This is because the court will set aside a sale of
ancestral land carried out without the family’s consent, as occurred in the
case of Nancy Mwari Marete & another v Daniel Riungu Marete &
another [2019] eKLR. Ultimately, parties must carry out effective due
diligence not only at this preliminary phase, but also throughout until
completion.
B. Phase 2: Contracts

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As earlier alluded to, this is the paperwork stage where documents are
drafted, agreements exchanged and contracts signed. Here, legal
professionals play an important role in reducing the intentions of the parties
into writing and ensuring that the agreement conforms to the law. The
primary instrument that facilitates transfer of land from a seller to a
purchaser is the sale agreement. It is a contract like any other, thus must
comply with certain legal requirements.
The three requirements for an enforceable contract for sale of land are
prescribed under Section 3(3) of the Law of Contract Act, 1961. Firstly,
the contract must be in writing. Secondly, it must be signed by all the parties,
that is, both the seller and the purchaser. Thirdly, the signature of each party
must be attested by a witness. The ramifications of failing to comply with any
of these requirements are far-reaching. A case in point is Kukal Properties
Development Limited v Tafazzal H Maloo & 3 Others [1993] eKLR,
where a seller failed to sign the sale agreement. The Court of Appeal held
that the intended agreement was inoperative and unenforceable in law.
Consequently, it is strongly advisable to engage the service of legal counsel
to streamline the process with the law. The Court in the case of Joseph
Kamau Kiguoya v Rose Wambui Muthike [2016] eKLR delivered the
following message to land purchasers:
“Parties who spend colossal sums of money purchasing land should
always set aside a fraction to seek proper legal advice before entering
into such transactions because in some cases, the vendors have no
intention of keeping their part of the bargain sometimes with un-
pleasant consequences to the purchasers.”
The sale agreement, which must be in writing, should indicate the names of
the parties to the agreement, that is, the seller and the purchaser. It should
also indicate the purchase price, when and how it is to be paid. The date the
purchaser shall take possession of the land should also be clearly spelt out. It
is important for the agreement to provide definite timelines for compliance
with each of its terms.
Accompanying the agreement are two consents to be obtained depending on
the nature of the transfer. The first is the ‘spousal consent’. This is a consent
obtained from the seller’s spouse agreeing to the transfer of the land. It is
applicable where the subject land is matrimonial property. Under Section 6
(1) (c) of the Matrimonial Property Act ‘matrimonial property’ includes
any immovable property jointly owned and acquired during the subsistence
of the marriage. Section 2 defines a ‘matrimonial home’ as any property
owned/ leased by one/ both spouses, which they occupy as their family
home.
Therefore, spousal consent is required whenever a person intends to transfer
land jointly owned or acquired during marriage, or that the spouses occupy

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as their family home. This requirement is backed by Section 28 of the Land
Registration Act, which recognizes spousal rights over matrimonial
property as an overriding interest. The Court in Kadzo Mkutano v
Mukutano Mwamboje Kadosho & 2 others [2016] eKLR held that
spousal consent is required before a spouse can sell matrimonial
property, and that in the absence of such a consent, the sale becomes null
and void. In case the land is not matrimonial or the spousal consent cannot
be obtained, the seller should swear an affidavit to that effect.
The second consent is that of the Land Control Board. This applies where the
subject land is agricultural. Section 2 of the Land Control Act, 1967
defines ‘agricultural land’ as land not within a municipality or township.
Section 6 requires an authority known as the Land Control Board (LCB) to
give its consent before the sale or transfer of any agricultural land. Failure to
obtain the LCB consent renders the transaction void and enforceable.
In finalizing the Contracts Phase, the parties fill and sign the transfer forms in
triplicate. The documents required to accompany the transfer forms are the
Identity Cards of both the seller and the purchaser, their respective KRA Pin
Certificates and passport-sized photographs. These should also be in
triplicate to go with each of the three transfer forms. The transfer form is
signed in triplicate because one copy is lodged at the land registry while the
seller and the purchaser each retain a copy.
The final stage of this phase is the lodging of the transfer forms at the
registry. Before doing so, the purchaser should once again exercise due
diligence. This he does by ensuring he has had sight of three documents: the
original title deed, certificate of search and where applicable, a certificate of
rates clearance. Upon being convinced of the veracity of the transaction, the
parties can proceed to lodge the transfer forms.
C. Phase 3: Completion
This is the final phase of the process where legal title passes from the seller
to the purchaser. At the preceding ‘contracts’ phase, mere equitable rights
and interests are created in favour of the purchaser. It is at the completion
phase where these equitable rights merge with the title to grant the
purchaser legal rights over the land.
Upon lodging the transfer forms at the registry, the payable stamp duty is
assessed. The parties then pay the determined stamp duty amount to
complete the transfer. The land registrar then register the land in the
purchaser’s name by making an entry into the register. Per Section 24(a) of
the Land Registration Act, the effect of such registration is that it vests in
the purchaser absolute ownership of the land. The title is then equally
registered in his name and handed over to him. This marks the end of the
process.

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Notwithstanding, due diligence must be maintained even after completion of
the transfer. The purchaser should conduct a further search at the land
registry to ascertain that the register now reflects his name. This would help
in containing attendant risks such as fraud, double-dealing and mischief at
the land registry, which are prevalent even at this late stage. Once
ascertained, the purchaser acquires proprietary rights to the subject land,
which rights can only be defeated by the provisions of the Land
Registration Act, 2012.
Conclusion
The conveyancing process begins with the parties exercising effective due
diligence. The purchaser discharges this duty not only by merely conducting
a search at the registry, but also by carrying out a survey, checking whether
the seller owes any land rates and performing a thorough ground verification
to inspect the actual status of the land. Thereafter, the sale agreement
capturing the parties’ intentions in writing is prepared. The parties then fill
and sign the transfer forms and attach the accompanying documents.
Before parting with any cash, the purchaser must ensure the seller is the true
owner of the land, has the right to sell it and the land is not impeded by
encumbrances such as mortgages or pending court cases. The process is
completed by lodging the transfer forms at the land registry, paying stamp
duty and the purchaser obtaining the title in his name.
At the end of the day, so sacrosanct is the employment of due diligence
during the entire process, that overlooking it would wreck catastrophic
implications, financial and otherwise. Due diligence is the safest insurance a
purchaser has against fraudulent and mischievous crooks who use the
conveyancing process to satisfy their corrupt appetites. One cannot afford to
ignore any red flags at any stage, for the law aids not those culpable of willful
ignorance. Failing to maintain vigilance only leaves one exposed to being
“wash-washed” off their investments by those in search of a softer life.
Tom Leon Kongere
16th March 2024

Disclaimer: The information provided in this article is for general

informational purposes only and does not, and is not intended to,
constitute legal advice. Readers of this article should contact their
advocate to obtain advice with respect to the circumstances any
particular legal matter.