CONVEYANCE OF LAND IN THE KENYAN CONTEXT

Introduction

Conveyancing is defined as the art or science of effecting the transfer of legal property or modifying
interest in relation to property by means of a (written) document. As such the three critical ingredients
are thus the process, the legal title and the transfer or modification.

Formality of writing in conveyancing

There is a mandatory legal requirement that all contracts disposing an interest in land should be in
writing. Section 3(3) of the Law Contract Act provides that:

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; and

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.

Under Section 44(1) of the Land Registration Act (LRA) every instrument effecting any disposition under
the Act shall be executed by each of the parties consenting to it, 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.

Stages in disposition of an interest in land

It is important to note that dispositions of an interest in land happens in two stages;

Contract for sale

Conveyance

Contract for sale stage

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.

Investigation of title: Investigation of title (and property) is the process through which an advocate
determines whether the client is going to ultimately acquire a good marketable title. The advocate is
obliged by practice to ensure that what is being disposed of and or what is being acquired is a good
marketable title. There are basically three mediums of investigating the title or property. These are:

Searches: Searches are simply enquiries carried out usually by the Purchaser‘s, 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
on the title register. It is effectively the purposeful inspection of title records or register at the relevant
Lands Registry.

Pre-contract inquiries: These 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 authorise 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.

Requisitions: These 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 perusal and deduction of the title
document.

Land rent Clearance Certificate: 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.

Rate Clearance Certificate: This is issued by the appropriate county authority in whose area the land is
situated. It certifies that all monies payable to the county in respect of that property have been paid.
Such monies include:

Land rates

Interest charges on rates

Unpaid water bills.

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. They include;

Consent from the County Land Management Board

Land Control Board Consent: Applies to all designated agricultural land.

Consent of the Kenya Airports Authority: applicable to land adjoining flight paths.

Lessor’s Consent: applicable to persons who have obtained leasehold from Government (head lessor)
and wants to sub lease it. This is found where one wants to sub-lease.

Execution & Attestation: Upon ascertaining that the interest being transferred has no hindrance, the
parties execute the sale agreement. Execution 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.

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.

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.

Conveyance stage

This stage is where the transfer of an interest in land takes place. It only takes effect upon registration. It
is important to note that the contract for the sale of land does not confer any interest to land. Its
rationale is basically to bind parties to the agreement.

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 purpose of registration includes:-

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

Registration Process

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.

Document stamped and duty paid at the Banks (KCB/NBK) then document lodged for registration.

Document presented in duplicate together with all relevant requisite documents e.g. original of the
government‘s valuation report, consent, clearance certificate, original title, etc. Fill out application for
registration in quadruplicate. Pay registration fees. 500/=

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.

Taken to audit and Government Auditor ascertain stamp/duty, taxes rent, rates, have been paid.

Left for matching with the Deed or Parcel files from the strong room.

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

Third is Entry of particulars of interest being acquired.

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.

In epilogue:

Document is photocopied (except Registered Land Act (RLA) documents)

Sealed with Land Registry‘s Seal (except Government Lands Act (GLA) documents)

Released to owner. If Registration of Titles Act (RTA),Registration of Documents Act (RDA), Government
Lands Act (GLA) or Lands Title Act (LTA) the Registry keeps a photocopy, if Registered Land Act (RLA) the
Registry keeps the original and releases the counterparts.

Duties of parties during the transfer process

Seller & Buyer

To disclose to the buyer material latent defects in the property

To disclose to the seller info which 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 relevant questions from the buyer

If sold free of encumbrances, retain part of purchase price to cover encumbrances

On payment of the purchase price, execute a conveyance

When property has passed to him bear losses on the property not caused by seller

Between the date of the contract of sale and delivery of the property take care of the property and title
documents

Where property has passed to him, pay all public charges, rent etc.

To give possession of the property when required

Pay public charges and rent