CONVEYANCING LAW & PRACTICE
Focuses a lot on the procedure to be followed in land transactions. You need to be very keen when
dealing with land issues. Most knowledge on conveyancing will be with the Clerks and secretaries.
Information is power in conveyancing.
*Why can an advocate be sued more easily in conveyancing than in litigation?
- Clerical errors like writing 1,000,000 instead of 10,000,000.
- Lawyers being greedy.
How to avoid problems is avoiding staying with the client's money or using an escrow account that is
joint.
Succession comes before the conveyancing. Be sure the land has no litigation by conducting a search for
any restrictions.
Draft outline
- Conveyancing Introduction
- Pre-contract
- Contract
- Post-contract
- Agreement for sale
- Transfers
- Leases
- Sectional properties/off plan
- Charges/discharge of charge
- Stamp duty (C.G.T) - calculations
- Ethics of advocates
- Ardhisasa (digitization)
- Rights in a lien or easement
- Resolving land disputes in conveyancing
- Professional undertaking
- Institutions dealing with conveyancing
Legal fee (instruction fee) of conveyancing in the Advocates Remuneration Order is 2% of the property
price. Plus any other disbursements and facilitation fees.
PRE-CONTRACT
PURCHASER VENDOR
- Obtain information about the purchaser to - Obtain information about your client to
ascertain if they are genuine about buying ascertain if they are the true owners of the
the property, as well as the vendor to property. Ask for details like their national
ascertain if the vendor is the genuine ID, passport and passport size photos,
owner of the property. KRA pin and registered phone number.
- Ask for a copy of the title deed from the - Information about the purchaser
vendor or their advocate. - Ask for a copy of the title deed from your
- Conduct the search (Land Registration client.
Act 2012 Sec.34) by filling the - Confirm to the purchaser that the land is
application for search form where details genuine.
of search and title details are put. - Inform the client when ready to proceed
- The search is done through Ardhisasa or to the next stage of conveyancing.
Ardhi House at the Ministry of Lands. - In all discussions with the client avoid
- Visit the area physically. conversations through the phone for
- Preferably engage services of a surveyor clarity purposes and records.
to ascertain boundaries and true acreage. - Draft the sale agreement and give it to the
- Review and make comments on the client for review.
agreement for sale to suit your client. - Share the sale agreement with the
- After the final draft is agreeable to all then counterparties for review.
your client can sign the sale agreement - If the sale of agreement is agreeable to all
and you witness it by stamping and parties and the purchaser has signed, the
signing the agreement. vendor also signs and you witness it
(stamp and sign).
- Triplicate copies so that 2 physical copies
can be sent to the purchaser.
Section 34 of the Land Registration Act 2012: A person who requires an official search in respect of any
parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of
any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee.
So why Conduct a search?
- General due diligence
- To ascertain ownership of the property and LR number
- To make sure there are no encumbrances or if there are any
- To ascertain acreage
- To ascertain if there are outstanding land rates.
- To avoid fraud
- To avoid litigation From professional misconduct
Quiz.
1. Discuss 10 duties of purchaser's advocate in a normal sale transaction. (10 Marks)
- Due diligence - confirmation of property ownership by having the ID, contacts and
address of the seller, conducting a search of the property and engaging survey services to
ascertain the true acreage of the property.
- Going through the offer letter and sale agreement offered to the purchaser.
- Witnessing the sale agreement on behalf of the purchaser.
- Preparing a transfer form.
- Have the transfer registered.
- Ensure stamp duty, land rates and any other payments to the government have been paid.
- Have a copy of the title deed, sale agreement and transfer documents.
- Hold the purchaser's money in good faith.
- *Prepare a letter of completion to communicate the completion of the sale to the
purchaser.
- After completion of the sale ensure all the documents are handed over to the purchaser.
*Letter of completion
Our Ref: CONV 1/25 DATE: 28TH JAN 2025
Your Ref: TBA
“Via Email”
“Urgent”
Palvine Kioko
0726534678
Email: palvin@[Link]
Dear Sir,
RE: COLLECTION OF TITLE DEED AND COMPLETION DOCUMENTS
We refer to the above matter.
Kindly note that we have obtained the title deed (original) registered in your name and all
the completion documents for Nairobi Block 1/009. (Find attached copy of the title deed).
Ensure to collect the aforesaid documents on or before the 31st January 2025 and to sign
the acknowledgement of receipt of the same.
Yours faithfully,
Patrick Gichachi.
Advocate of the High Court.
2. Discuss 10 duties of vendors advocate in a normal land sale transaction. (10 Marks)
3. Discuss the process of initiating official search in a land sale transaction, whilst doing so
highlight what is the importance of conducting search and the consequences of failure to
conduct a search. (5 Marks)
4. Discuss the interdisciplinary nature of conveyancing law. (10 Marks)
PROFESSIONAL UNDERTAKING
Search shows;
- True proprietor
- Any encumbrances
- Size
Clients of conveyancing;
- Purchaser
- Vendor
- Lessee
- Lessor
- Chargee
- Chargor
- Assignee
- Assignor
*Note the one that ends with “or” is usually the owner of the property.
Professional undertaking is defined in the LSK code of conduct and professional ethics and it is a formal
(in writing) promise given to the client by the advocate. See Daniel & Kenneth Advocates LLP vs Daniel
Orenge & Co. Advocates and Naphathali Paul Radial vs Gachanja D Njogu & Co. Advocates.
In any conveyancing transaction the legal instruments have standard formats provided by the law. See the
Land Registration (General Regulations)
There is no standard formula for drafting a professional undertaking as long as it captures unequivocally
the terms of the guarantee/commitment given by the giver of the undertaking to the receiver of the
undertaking.
If a property is charged then the bank in-house counsel should give a professional undertaking that once
the amount is cleared the bank will surrender the original title and a duly executed discharge.
Legal elements of a professional undertaking
- Should be in writing
- Should be very clear and to the point
- It is binding
- It is between colleagues from the same profession in the case of conveyancing between the
Advocates.
- It is enforceable to the person giving it
Enforceability of a professional undertaking
- The court has a mandate or inherent jurisdiction to enforce the undertaking subject to Sec. 57 of
the Advocates Act to protect the sanctity of the officers of the Court
- It is binding and failure to honour it results in professional misconduct. See Daniel & Kenneth
Advocates LLP vs Daniel Orenge & Co. Advocates. The court held that the advocate who had
dishonored the undertaking was solely responsible for paying back the purchaser of the property
with interest.
The doctrine of estoppel prevents the giver of the undertaking from denying the obligations of the
undertaking and protects the innocent party who acts relying on the words or conduct of the giver of the
promise i.e the giver of the undertaking.
Principles of an undertaking
- Make sure before the undertaking there is clear consent from the client authorising you to do it in
writing.
- Make sure it is in writing, very clear and to the point
- Give an undertaking on something that is within your control. Do not give an undertaking
concerning money that is still with your client and not in your control.
- Do due diligence on the giver of the undertaking
QUIZ
On the 10th day of February 2025,Tresant approached the firm of Amra & Co. Advocates. His intention
was to sell his parcel of land located along Lavington Estate (Nairobi Block 21200). Tresant told Amran
that there was a purchaser who he identified as Patrick, willing to pay 50,000,000/= being the estimated
value of the mansion.
Assuming;
a. You are advocate on record for Tresant (Amra) prepare due diligence checklist. (10 marks)
b. You are advocate on record for Patrick (Resia & Co. Advocates) prepare the due diligence
checklist (10 marks)
c. Assuming you are on record for Patrick and discover the correct value is 51,000,000 what will
you do? (5 marks)
I would communicate with the advocate for the vendor to conform the value of the property to
the evaluated value and inform my client for purposes of paying the stamp duty.
d. You are Amra, draft the initial agreement with 10 clauses which you will send to Resia & Co.
Advocates (10 marks)
e. Calculate the stamp duty payable for this transaction (3 marks)
4% of 51,000,000 which is 2,040,000/=
f. Send email to Amra telling her you Act for the purchaser (2 marks)
g. Assuming you Act for the purchaser, calculate the legal fees (4 marks)
2% of 5,000,000 plus 1.5% of the remainder which is 46,000,000
100,000 + 690,000 = 790,000/=
h. Assuming you Act for vendor calculate the legal fees (4 marks)
a. Vendor's Advocate checklist
S/N TASK YES NO
1. Have you obtained purchaser's information?
ID
KRA Pin
Passport size photo
2. Have you obtained the vendor's information?
ID
KRA Pin
Passport size photo
3. Have you asked for a copy of the title deed from your client?
4. Have you obtained the search form?
5. Have you lodged the search application form?
6. Have you obtained the search results?
7. Have you visited the area?
8. Have you engaged the services of a surveyor to ascertain
boundaries and true acreage
9. Have you obtained the evaluation report?
10. Do you have information on purchaser's advocates?
11. Have you prepared the sale agreement?
12. Have you proofread the sale agreement?
13. Have you witnessed the sale agreement for your client?
14. Have you shared the sale agreement with the purchaser's
advocate?
15. Has the purchase price been paid?
16. Have you prepared the transfer forms
17. Have you prepared the completion documents?
18. Have I been paid full fees?
b. Purchaser's Advocate checklist
S/N TASK YES NO
1. Have you obtained purchaser's information?
ID
KRA Pin
Passport size photo
2. Have you obtained the vendor's information?
ID
KRA Pin
Passport size photo
3. Have you asked for a copy of the title deed from your client?
4. Have you obtained the search form?
5. Have you lodged the search application form?
6. Have you visited the area?
7. Have you engaged the services of a surveyor to ascertain
boundaries and true acreage
8. Is the property free of encumbrances?
9. Do you have information on vendor's advocates?
10. Have you obtained the evaluation report?
11. Have ensured stamp duty is paid?
12. Have you received the executed sale agreement from the
counterparty?
13. Have you proofread the sale agreement?
14. Have you witnessed the sale agreement for your client?
15. Has your client paid the full purchase price?
16. Have you prepared a transfer form?
17. Have you shared the transfer form with your counterparty?
18. Have you asked for the completion documents from the
counterparty?
19. Have I been paid full fees?
c. Sale Agreement.
AGREEMENT FOR SALE
This Agreement is made on the ………………….. day of ……………………2025 between Tresant of ID
No. 12345 and P.O BOX No. 89 Nairobi (hereinafter called “the Vendor”) and Patrick of ID No. 24567
and P.O BOX No. 23 Nairobi (hereinafter called “the Purchaser”).
WHEREAS:-
1. Tresant is the registered owner of all that piece of land known as Nairobi Block 21200
2. The Vendor has agreed to sell and the purchaser has agreed to purchase the said Nairobi Block
21200
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:-
3. The Vendor shall sell and the Purchaser shall purchase the said property free from all charges and
any other encumbrances.
4. The purchase price is Kshs. 50,000,000/= which sum shall be paid to the Vendor in full upon the
signing of this Agreement.
SPECIAL CONDITIONS:-
5. The Purchaser has been shown the property and has inspected the same and, the property is being
sold as it is.
6. The Purchaser shall take possession after payment of the full purchase price of the property.
7. The Vendor hereby agrees and undertakes to execute all documents particularly the application
for Land Control Boards consent and Transfer Forms, and do all acts that shall be necessary to
effectually transfer the title of the said parcel to the Purchaser wherever called upon to do so.
8. The Purchaser is responsible for transfer fees, stamp duty & registration fees and other related
expenses.
9. Should one of the parties default on its part the other party should be at liberty to rescind the
agreement.
10. This Agreement shall be effective from the date of signing the same.
IN WITNESS WHEREOF:-
SIGNED by the VENDOR
Tresant ___________________
In the presence of ________________________
SIGNED by the PURCHASER
Patrick ________________________
In the presence of ______________________
LEASES
It is defined in Sec. 2 of the Land Act 2012. See Street v Montford. The Lessor is the owner of the
premises while the Lessee enjoys possession over the premises for a limited period. The obligations of the
parties to the lease are found in Sec. 65 and 66 of the Land Act as covenants implied on Lessee and
Lessor. The Lessor should ensure the premises is free from encumbrances; fit for habitation; and the
Lessee enjoys quiet enjoyment of the premises.
Difference between a lease and a licence:-
- A lease is a contract, while a licence is a permit
- In a lease exclusive possession is granted while in a licence no exclusive possession is granted
- A lease is transferable while a licence is not
- A lease is for a specific period of time while a licence is revocable at any time.
Types of Leases
Periodic leases - If in any lease;
- the term of the lease is not specified and no provision is made for the giving of notice to terminate
the tenancy, the lease shall be deemed to be a periodic lease;
- the term is from week to week, month to month, year to year or any other periodic basis to which
the rent is payable in relation to agricultural land the periodic lease shall be for six months;
- the lessee remains in possession of land with the consent of the lessor after the term of the lease
has expired, then;
a. unless the lessor and lessee have agreed, expressly or by implication, that the continuing
possession shall be for some other period, the lease shall be deemed to be a periodic one;
and
b. all the terms and conditions of the lease shall continue in force until the lease is
terminated.
- If the owner of land permits the exclusive occupation of the land or any part of it by any person at
a rent but without any agreement in writing, that occupation shall be deemed to constitute a
periodic tenancy.
- The periodic tenancy where the term of the lease is not specified and no provision is made for the
giving of notice to terminate the tenancy, shall be the period by reference to which the rent is
payable.
- A periodic tenancy may be terminated by either party giving notice to the other, the length of
which shall be not less than the period of the tenancy and shall expire on one of the days on
which rent is payable.
Short-term leases - A short term lease is a lease;
- made for a term of two years or less without an option for renewal;
- that is a periodic lease; and
- A short term lease may be made orally or in writing.
- A short term lease is not a registrable interest in land.
Future leases - For the avoidance of doubt, a lease of land may be made for a term to begin on a future
date, not being later than twenty-one years after the date on which the lease is executed. A future lease,
which is expressed to be for a period of more than five years, shall be of no effect unless and until it is,
registered.
CHARGES
Sec. 2 Land Act 2012. This is where the title is used as security. A charge does not transfer interest in land
(sec. 80). A charge is different from A mortgage, nowadays we don't talk about mortgages. There are
different types of charges (sec. 79). A formal charge takes effect only when it is registered in a land
register and a chargee shall not be entitled to exercise any of the remedies under that charge unless it is so
registered. An informal charge may be created where a chargee accepts a written and witnessed
undertaking from a chargor, the clear intention of which is to charge the chargor’s land or interest in land,
with the repayment of money or money’s worth, obtained from the chargee plus interest as agreed by the
chargor and the chargee";or the chargor deposits any of the following;
a. a certificate of title to the land
b. a document of lease of land
c. any other document which it is agreed evidences ownership of land or a right to interest in land.
There are rights and duties upon execution of a charge.
Further charges and second charges -
Quiz
1. What is the difference between a charge and a mortgage?
2. Who is a chargee?
In Kenyan law, a "chargee" is the lender or creditor who holds a charge or security interest in
property, such as land, as collateral for a loan or debt.
3. Who is a chargor?
In Kenyan law, a "chargor" is the person who grants a charge on their property (land or lease) to
secure a loan or other obligation, essentially the borrower or the one providing the security.
4. What are some of the important clauses in a charge document?
5. Who executes a charge document on behalf of the bank?
6. Discuss 5 remedies of a chargee in a charge.
7. Discuss 4 remedies of a chargor in a charge.
8. Discuss 10 duties of lender's advocate in a charge.
9. Discuss 10 duties of a borrower's advocate in a charge.
10. Discuss a further charge and a second charge.
Section 57 of the Land Registration Act and Section 82(1)and(2) of the Land Act on tacking
provides that a chargee may make provision in the charge instrument to give further advances or
credit to the chargor on a current or continuing account. This is what is known as a further charge.
It is a charge that you can take out from the same chargee that provided your original charge. It’s
essentially an additional charge that is added to your existing charge.
A second charge, on the other hand, is a separate charge that you can take out from a different
chargee. It is ranked behind your first charge in terms of priority in the event of repossession.
The main difference between the two is that with a further charge, you are dealing with the same
chargee as your original chargee while with a second charge, you are dealing with a different
chargee.
Discharge Of a charge
When the amount secured is entirely paid you need to register discharge of a charge. It is prepared by the
advocate for the borrower. See Sec 45 of the Land Registration Act. Stamp duty of a charge is calculated
at 0.1% of the amount secured and that for a discharge is 0.05% of the amount secured.
Example
DATED THIS 27TH MARCH 2025
DISCHARGE OF CHARGE
KENYA COMMERCIAL BANK (KCB)
(CHARGEE)
TO
PATRICK GICHACHI
(CHARGOR)
OVER
TITLE NO. 23/1000 NAIROBI BLOCK
PREPARE BY
NYAMUSI & CO ADVOCATES
RIARA ROAD
BLOCK 2
Nyamusiadvocates@[Link]
REPUBLIC OF KENYA
THE LAND REGISTRATION ACT 2012
THE LAND REGISTRATION REGULATIONS 2017
Presentation book no: …………. Amount charged: ……………..
DISCHARGE OF CHARGE
DATE OF DISCHARGE: 27TH MARCH 2025
DATE OF CHARGE REGISTRATION: 2ND AUGUST 2024
CHARGOR: PATRICK GICHACHI of P.O. BOX 1 - 00100
NAIROBI, KENYA
CHARGEE: KENYA COMMERCIAL BANK of P.O. BOX 2 - 00200
LICENCED UNDER CBK ACT; and the
BANKING ACT OF KENYA
AMOUNT DISCHARGED: KENYA SHILLINGS FIVE MILLION (5,000,000)
THE CHARGEE hereby discharges the chargor all the amounts secured of KShs. 5,000,000 which was
secured using TITLE NO. 23/10000 NAIROBI BLOCK.
WITNESSED BY PARTIES AS FOLLOWS:
SIGNED BY
CHARGOR
PATRICK GICHACHI
Name:
ID:
Signature:
Verification under Sec. 45 Land Registration Act 2012
I SYLVIA NYAMUSI, being an advocate of the High Court of Kenya do verify that I have witnessed the
chargor one PATRICK GICHACHI od ID No. 243676 duly and voluntarily execute this discharge on the
……………….. day of ……….. 2025.
………………………………
Name and Signature of person Verifying
SIGNED BY
CHARGEE
ON BEHALF OF
KCB BANK
Name:
ID:
Signature:
Verification under Sec. 45 Land Registration Act 2012
I ROSEBELL, being an advocate of the High Court of Kenya, do verify that I have witnessed the bank
attorney SAM duly voluntarily execute this discharge on the …………. day of ………. 2025.
………………………………..
Name and Signature of person Verifying
Calculating stamp duty
For Charge = 0.1% of 5,000,000 = 5,000
For Discharge = 0.05% of 5,000,000 = 2,500
Quiz
On the 27th day of Feb 2025 Sam Baraka used his Title (NAIROBI BLOCK 1/200) to secure a loan
facility of KShs. 10,000,000/- from Balozi Sacco. During the initial stages, Sam Baraka was being
represented by the firm of Tresvant & Co. Advocates. The advocates for the Sacco I this transaction was
the firm of Resia & Co. Advocates.
Assuming:
1. You represent the chargor, List 10 duties as advocate of the chargor (how would the chargor
advocate perfect the security)
- Review terms of the charge
- Ensure the owner is in possession of the title document
- Find out the estimated value of the property
- Ensure the amount charged is below the value of the property
- Communicate to the chargee advocate to send the charge documents for execution
- Verify the charge document
- Witness the charge document for the chargor
- Draft a letter to your client indicating the loan has been secured.
2. You represent Balozi Sacco, List 10 duties as advocate of the chargee (how would the chargee
advocate perfect the security)
- Get details of the chargor and his advocates
- Ask for the title document
- Do a search of the title document to ascertain the true ownership, acreage and
location
- Ascertain value of the property
- Make sure the value is higher than the amount to be secured
- Prepare the charge document
- Sent the charge document to the chargor’s advocates for execution
- Witness the charge document for the chargee
- Calculate stamp duty
- Register the charge
3. Who will prepare the Charge document? List 10 clauses to be included in the Charge document.
Charge document is prepared by the advocate of the bank.
Clauses:
- Title of the charge document
- Date of the charge
- Names of parties
- Amount secured
- The Title Number of document used as security
- Terms of the charge
- Termination clause
- Execution clause
4. Calculate stamp duty for the Charge registration.
0.1% of 10,000,000 = 10,000
5. Assuming the loan has been paid, prepare the discharge document.
6. Explain 5 remedies Balozi has in the event Sam failed to clear the loan.
7. Calculate the stamp duty of the discharge.
0.05% of 10,000,000 = 5,000
8. Explain early due diligence an advocate needs to conduct such a transaction.
9. Draft a letter to Sam indicating that his loan has been secured.
SECTIONAL PROPERTIES & SECTIONAL TITLES
It concerns multi-unit development where property is sectioned for different individuals for specific units.
The common areas are shared by individuals and jointly owned.
Sectional title is a legal document that confers ownership rights to individual units within the
development.
Legal Regimes - there is the Sectional Properties Act of 1987 and the new Sectional Properties Act of
2020. In the old regime, the developer had to first register a Management company in which the owners
of the specific units were shareholders with every unit having a Share Certificate which was like a
sublease equivalent to a title. In the event of wanting to transfer ownership or charge the property, one had
to gain consent from the management company. The management company paid rates on behalf of
everyone who would in return pay service charge.
The current regime was enacted to align with Article 68 of the 2010 constitution, Land Registration Act,
Land Act, and National Land Act. It provided for division of a building into units which can be owned by
individual proprietors. The common areas are owned by the unit owners as tenants in common. Tenancy
in Common means specific owners do not need the consent of others to use the areas. The issue of
legislation and procedure is properly outlined. It provides for the procedure for conversion of subtitles
under the previous regime to sectional titles under the new regime. The specific units can have leasehold
title or freehold title depending on the location. Services of a registered and active surveyor are required,
under the supervision of the vendor's advocate, for preparation of Sectional Plans (sec. 2 of the Act).
Geo-referenced plans are prepared by the surveyor and approved by the structural body responsible for
survey. The surveyor must have the mother title, a copy of construction permits, and a copy of floor
plans. The sectional plan must be approved by the Director of survey. The approved sectional plan is filed
for an application of its approval. Consequence of registration of sectional plan;
- Surrender the mother title to the ministry of lands
- Separate registers are opened for the specific units
- Titles are issued for the specific units depending on the type of land either freehold or leasehold
- Interest of mother title is endorsed on the titles.
The completion documents are;
- Original and stamped transfer (registered)
- Copies of Corporation Registration Certificate
- Copies of registered Sectional Plan
- Certificate of occupation
- Architect certificate of practical completion
Fee is paid to the vendor's advocate by both parties.
Corporation - the vendor must also file for registration of a corporation which is a body corporate
incorporated in accordance with sec. 17 of the Act. it consists of proprietors of specific units on the
development. It has its own bylaws.
Comparison of Regimes
- The previous regime provides for management companies while the current one provides for
registration of a corporation at the ministry of lands
- The management company is for management of common areas holding reversionary interest on
behalf of unit owners and it is registered under the Companies Act. The Corporation on the other
hand is registered at the Lands Registry and has no reversionary interest over the common areas.
- In the management company unit owners subscribe as shareholders while in the corporation
membership is upon ownership by issuance of sectional title.
- In the previous regime the unit owner was issued with a sublease and a share certificate of the
management company while in the current regime the unit owner is issued with a certificate of
lease or title depending on the type of land.
- In the previous regime the reversionary interest is with the management company while in the
current regime the reversionary interest is with the unit owner.
