KENYA SCHOOL OF LAW - 2012

CONVEYANCING LAW & PRACTICE

ELEMENT I - INTRODUCTION

Conveyancing has been defined as the “process by which legal title to

property is transferred “ (Abbey & Richards, 2000, 18) . The Council of
Licensed Conveyancers in England and Wales on the other hand defines
Conveyancing as “the legal process of transferring a house or flat
,commercial property or piece of land from one owner to another”. Both
definitions may however be limiting as conveyancing involves more than
just drafting and registering documents.Conveyancing may also involve a
simple modification of title or even an involuntary transfer of an interest eg
sale by a mortgagee. It may thus be more appropriate to define
conveyancing as the art or science of conveying or effecting the transfer of
legal property or modifying interest in relation to property by means of a
(written) document. The three critical ingredients are thus the process, the
legal title and the transfer or modification. It is the generic term used to sum
up the procedures used in disposal and/or acquisition of interest in real
property. The process is what is basically referred to as Conveyancing
practice or protocol – which refers to the branch of advocacy in real
property transactions or the procedural side of the coin of which the law of
property is the substantive side. The legal title or interest to be transferred
or modified must be legal in the strictest sense of the word. The transferee
must be seized of a legal title. Consequently, protocol or process will

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demand that a Conveyancer investigates and ascertains that the title to be
transferred or modified is legal. [Reflections: How expansive is the word
“legal” in these respects? Does it refer to and include previous “illegal”
acquisitions subsequently legalized?]. “Conveyance” describes the
document used to effect the conveyancing , and “Conveyancer” describes
the qualified professional or specialist lawyer retained by the parties to a
transaction to deal with the paper work and finances
. His role is to represent the buyer or seller or the mortgagor. He must
however be qualified in line with the decision of the Court of Appeal in the
unreported case of National bank of Kenya Ltd Vs Wilson Ndolo Ayah &
Another (eKLR 2009). [Reflection : What are the ingredients of such
qualification? Do you agree with the unanimous decision of the Court of
Appeal in the Wilson Ndolo Ayah case? ] Generally a Conveyancers duties
are wide and varied and are not limited to merely drafting the conveyance
and registering the same.The duties include:
-Advising clients on buying and selling process + effect of transferring an
interest in land
-Investigating title
-Drafting the K with sale details,offers,leases,mortgages,transfer
-Liasing with mortgagees,lenders,estate agents,Advocates,etc
-Paying taxes eg Stamp duty, land rent,VAT,CGT,Rates
-Keeping records of payments and finally preparing a completion
statement
-Perfecting the documentation including proper execution, completion and
registration

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[Reflection:What skills and knowledge will one need as a conveyancer?]

The process of transfer or modification of interest must be by way of a

written document. This is a statutory requirement as the transfer or
modification is deemed only to be complete once registration has been
effected as demanded by the relevant statute. It is noteworthy that the
transfer or modification can be to oneself [cf. Assents and transmissions].

To appreciate conveyancing protocols better one ought to be familiar with

the other branches of law dealing with real property [Land Law],
Obligations [Contract law] and remedies/restitution [equity]. An
appreciation of these branches of the law is thus necessary as advise to
client will run and cross through literally all of them in any ordinary
conveyancing transaction.
[Reflection: what is the relationship of the other branches of law in
particular the law of contract,the law of torts,the law of equity, the law of
real property to conveyancing law and practice?]
A Conveyancer must however not only be knowledgeable but also ethical
and defensive.
See: Juma Muchemi V Waweru Gatonye HCCC No.853 of 2002 NBI
Momanyi V Hatimy 2003 KLR 545

Conceptually ,in the study of conveyancing as a branch of the law one

must consistently try to answer three main questions: Are conveyancing
protocols intended to protect the Conveyancers or the parties to the

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Conveyance? Is conveyancing jurisdictional or contractual or is it a hybrid
of both? W hat reforms if any can one invite and effect in order to improve
conveyancing transactions ?

History
Conveyancing law in Kenya, like other branches of law has drawn its
history mainly from English Law. Uptill 1535 the English medium of
transferring an interest in land was vide the primitive method of
surrendering to the Lord of Manor the subject parcel of land and his
Lordship in turn granted the same to the transferee’s nominee. The earliest
and most important form of conveyance however was the feoffment. 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.
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 which introduced the requirements
of writing, execution and attestation, the Real Property Act 1845, Land
Transfer Act 1875, Vendors & Purchasers Act 1874 and finally the most
important of them all the 1925 Law of Property Act which like the
Registered Land Act Cap 300 Laws of Kenya was intended to simplify
conveyancing.The 1925 statute established a formal register and also

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introduced state indemnity to those deprived of their land or title .]
[ Reflection: The conveyancing instrument to be drafted depended on the
interest to be transferred and the statutes played no role : true or false?].

The history of conveyancing in Kenya can be traced to the turn of the 19 th

Century. Like most laws, the relevant statutes were also transplanted the
last being the Registered Land Act in 1963 which is an even imitation of the
Law of Property Act 1925 (U.K).

The first relevant conveyancing statute enacted in Kenya was the 1901
Registration of Documents Act (RDA). Section 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. It is noteworthy that
registration of a transaction under the RDA guarantees no title but is
merely evidence of the occurrence of a transaction. Under the RDA certain
conveyancing documents are still registered to give efficacy to some
conveyancing transactions. These documents include; Trust Deeds, Powers
of Attorney and Building Plans. Next was the Land Titles Act 1908 (LTA)
which was intended to help deal with the haphazard “deserted” parcels at
the Coastal strip of the country. The LTA also guarantees no title but
unlike the RDA is not defunct vis-à-vis conveyancing. Titles registered
under the LTA are not government grants. In 1915 the Government Lands
Act (GLA) was enacted to deal with conveyancing and land titles in the
interior hinterland. It introduced a more systematic approach to
registration and provided for Deed Plans for all parcels of land to the
registered. The title under the GLA is usually the last Indenture of

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Conveyance (Freeholds) or Assignment (Leaseholds). In 1920 the
Registration of Titles Act (RTA) was enacted. It was based on the
Australian Torrens system as to systematic certainty of title. It provides for
registration of and guarantee of titles. It attempted to make conveyancing
simple by introducing statutory conveyancing form albeit not mandatory.
The title document under the RTA is either a Grant or Certificate of Title
or a Lease.

The Registered Land Act (RLA) enacted in 1963 tried to “modernize”

conveyancing. It was intended not only for a further and better provision
for registration of title to land but also the simplification of conveyancing
and facilitation of a cheapened mode of transfer of interest in land. The said
Act borrowed heavily from the 1925 English Law of Property Act. Unlike
the RTA, the RLA made the use of statutory conveyancing forms
mandatory (S.108) The title document under the RLA is a Title Deed/Land
Certificate (for absolute proprietorship) or Certificate of Lease (for
leaseholds) or a Certificate of Sectional Property if it is a property under the
Sectional Properties Act . Both are issued at the request of the registered
proprietor and upon payment of the requisite fees. The form of the
Register under the RLA is found in the First Schedule of the said Act. For
purposes of identification of the land parcel, the RLA got rid of Deed Plans
and in their stead introduced the Registry Index Maps (R.I.Ms) which were
presumably simpler and straight forward. Both the Deed Plan and the
R.I.M are prepared by qualified surveyors and authenticated by the
Governments’s Principal Surveyor (the Director of Survey). The RLA was

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and is still intended to consolidate all land registrations under it. Note
however that it is no compulsory to convert land registered under the
RTA,GLA or LTA to the RLA unless one intends to bring the same under
the Sectional Properties Act,1987. [Reflection: 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? How healthy is the six-
statute title system in Kenya? In Kenya today the conveyancing instrument
to be drawn and used in effecting a transfer or modification of interest in
land depends not only on the interest or tenure to be modified or
transferred but also on the Statute under which the land interest or tenure
is registered: true or false? Distinguish between a R.I.M and a Deed Plan.
What purpose do Deed Plans and R.I.Ms serve? Can you list down at least
ten other statutes and relate their relevance to conveyancing as a process? ]

Formality of writing in Conveyancing

One cannot buy land the way one would buy a newspaper or a loaf of
bread. The contract must be in writing executed by both parties and
attested.This is a mandatory statutory requirement. [S.3 of Law of Contract
Act Cap 23]. This serves three purposes: Evidentiary, Protective and
Forensic. The formality of writing performs the forensic function in
providing simple yet conclusive evidence of the fact of agreement. The
Statute of Frauds 1677 expressly provided that the requirement of writing
was intended to guard against the fraud.

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Formality of writing also performs a useful evidentiary function in
encouraging precision and recording the result for posterity. Writing helps
to avoid disputes as to what interest has been or is intended to be
conveyed. Remember too that land can generate an array of interests from
its original form in the freehold estate.

Thirdly, it is argued (Moriaty, 1984 LQR 376) (Ojienda,2008) that the

formality of writing performs the protective function of giving parties a
chance to reflect and think on the deal before executing a binding contract
that they may wish so shortly before the ink is dry to renege on. It is stated
that if the agreement was to be oral there would be no time for reflection on
the deal per se. This function has been reinforced further by the
requirement of “independent legal advise” to be given by a qualified
conveyance. [Reflection: Are these arguments conclusive? eg Has writing
gotten rid of fraud in conveyancing and how often do we make sensible
decisions orally?]

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. The
purposes of registration include:-

 enabling the Government to keep track of user and easier

collection of revenue;

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  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

Upon registration of the land or conveyance the registered proprietor

acquires an indefeasible title against the whole world [cf. Sections 23, 24
RTA and Sections 143 through 148 RLA]. Registration is effected at the
relevant Lands Registries which are situate as follows:-

RDA - Nairobi + Mombasa and the Registrar in charge is the

Reistrar of Documents
LTA - Mombasa and the Registrar is the Land Titles Registrar
GLA - Nairobi + Mombasa and the Registrar is the Government
Lands Registrar
RTA - Nairobi + Mombasa and the Registrar is the Registrar of
Titles
RLA - Various Land Districts all over the country and the
Registrars are known as the
District Land Registrar.

Care must be taken that the conveyancing instrument is not only presented
at the proper Registry but is also signed/registered by the proper
Registrar.

What is registered? Title (land) and interest

(servitudes,encumbrances,quasi-encumbrances). The latter includes
charges, leases, easements, profits, restrictive agreements or covenants (see
Tulk –v-s Moxhay [1843-60] All E. R 9). The former involves the estates

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namely allodiums, fee-simple, freeholds and leaseholds which also rank as
limited interests.

Effect of Registration
Registration of title or of the proprietor, it is stated, not only defines the
estate but also rids the past including the customary communal system.
One becomes an absolute owner of the title or interest registered (S.27 RLA
& S. 23 RTA). [Reflection: How absolute is absolute?]

The interest registered is subject to:-

(a) Existing registered or to be registered interest through the doctrine

of priority in the form of encumbrances, leases et al ,for ranking of
priorities see for eg. S. 42 RLA, S.28 RTA, S. 104 GLA [Reflection:
what is the doctrine of priorities in law and in equity? In
conveyancing is it about the date of registration or the time of
registration? When does one talk of a document “pending
registration”?]
(b) Overriding interest (S. 30 RLA)
See also: National Prov. Bank Limited –vs- Hastings (1964)
Ch 9
Mbui –vs- Mbui (2005) I E. A 256
Marigi Vs Marigi 1996 LLR 463
Ogongo vs Ogongo CACA 29/2003

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 Esiroyo –vs- Esiroyo (1973) E.A.
(c) Registration also has the effect of bringing land under a particular
substantive law. All parcels of land registered under the RLA
have the RLA as their substantive and procedural conveyancing
law. All land registered under the RTA, GLA and LTA have the
Indian Transfer of Property Act 1882 as the substantive law.
[Reflection: RTA is not RLA)

Effect of Non-registration
None registration means no interest, at least in rem. See however Section
32, (2) and 38 (2) of the RTA and RLA respectively. See also Rogan
Kamper –vs- Grosvenor 1977 KLR 123, Clarke – VS Sondhi (1963) E.A.,
Merali -Vs- Parker (1956) 29KLR 26, Bains -Vs- Chogley (1949)

Reflections: On a proper construction of Section 38 and 32 of the RLA and

RTA respectively, rights
concerning land give no proprietary quality unless registered – true &
false?
cf.
 S. 38 (1) & 32 (1) RLA & RTA.
 Registration only creates more to the whole world and no more.
 Cautions and caveats effect of,
 Overriding interests
 Abstract matrimonial property rights
Echaria –vs- Echaria C.A.C.A 75/2001
Kivuitu –vs- Kivuitu C.A.C.A 26 of 1985

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 Lord Melvin Blackburn Vs Lady Blackburn ( Malindi HCCC No. 87
of 2007)
Married Women’s Property Act 1882. S. 17
 Adverse possession
Wambugu vs Njuguna 1983 KLR 172
 Proprietary estoppel.
Teng Huan Vs Swee Chuan 1992 1 WLR 11

NB
 Registration at the Company’s Registry under Section 96 of the
Companies Act (Cap 486) is required where a Company creates a
Charge or Mortgage over its parcel of land. Companies Form 214.
use of,

 Registration at the Registrar of Co-operative Societies.

Purpose in both instances:
- Create a secured creditor vis-à-vis insolvency
- Notice to prospective Debentures- holders.

 [Reflections on Registration: Where is registration effected? Who

effects it? When is it deemed to have been effected? What is
registration subject to? What is (must be)registered? ]

INSIDE A LANDS’ REGISTRY : A conveyancer’s nightmare or pyrrhic?

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1.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
2. Document stamped and duty paid at the Banks (KCB/NBK )then
document lodged for regn
3. Document presented in duplicate together with all relevant requisite
documents eg original of the government’s valuation report, consent,
clearance certificate, original title,etc
Fill out application for registration in quadruplicate.
Pay regn fees.-500/=
4 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
-See Sec. 104 GLA
Sec. 28 RTA
Sec 42 RLA
Sec 60 LTA
Sec 27 RDA

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 The time of presentation of doc ,not execution or date thereof ,
counts to pass interest.
4. Taken to audit and Government Auditor ascertain stamp/duty,taxes-
rent,rates, have been paid.
5. Left for matching with the Deed or Parcel files from the strong room
6. Registration proper commences with the Registry- in charge 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
7. 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
8.In epilogue:
Document is photocopied (except RLA documents)
Sealed with Land Registry’s Seal (except GLA documents)
Released to owner. If RTA,RDA,GLA or LTA the Registry keeps a
photocopy,if RLA the Registry keeps the original and releases the
counterparts.
[Reflection:Why does it take more than 14 days to complete such a simple
looking process?]

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J. LOUIS ONGUTO©, March 2012 (condensed version of class-teaching
notes 2012)
[email protected]