The process of Buying Land in Kenya

BUYING LAND IN KENYA
Introduction:
Land:
Pursuant to what the constitution of Kenya envisage in articles 260 Land is only one asset which may be owned and therefore only one form of property. Moveable assets and intellectual property are other examples of property. Land is defined in the said Constitution under article 260 as including not just the soil, but also water, sea, and natural resources above and below the land, even the air1, However, According to Blacks law dictionary, Land is defined as in the most general sense, comprehends any ground, soil, or earth whatsoever; as meadows, pastures, woods, moors, waters, marshes, furzes, and heath. The word “land” includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences2. Article 64 of the Constitution of Kenya 2010 goes further to elaborate on private land as
(a)
registered land held by any person under any freehold tenure;
(b)
land held by any person under leasehold tenure; and
(c)
any other land declared private land under an Act of Parliament3.
THE LEGAL PROCESS OF BUYING LAND IN KENYA Under the constitution of Kenya, everyone has a right to own land in Kenya, however there are set procedure that one must follow. This is not only because it is required by the law but also to ensure that you do not fall into the hands of con artists. The follow are the legal procedures when purchasing Land in Kenya; STEP ONE: IDENTIFY THE LAND OF YOUR CHOICE
1 The Constitution of Kenya article 260
2 The blacks Law dictionary definition
3 The Constitution of Kenya article 64
The first step you will need to do is to identify the land you want to buy in comparison to your interests. There is land that is strictly residential others are commercial while others are both. Subject to your interests in terms of purpose, size and location, after identifying the land you can now proceed to the next step. STEP TWO: DO A SEARCH AT THE LAND REGISTRY The next step is for you to secure a copy of the title deed of the land you intend to buy, a copy of identity card and a copy of the KRA Pin of the seller. After, you should proceed to the Land registry of the area the Land is located, for instance if it is in Homa-Bay you proceed to Homa-bay Land Registry.4 At the Land registry, you will request for a search Application form which you will fill in the details and attach the copies of the title deed, identification card and KRA pin. The process is absolutely free and it will take a maximum of two days to get the results.
Conducting a search at the initial stage is very necessary because you get to know the original owner of the land, the acreage and any encumbrance attached to the land. This was held in the case of Rignall Developments Ltd –vs- Halil (1988) Ch. 190).5 Where the law imposes a clear duty upon the buyer to find out as much about the property in that common law recognizes that the seller has a limited duty of disclosure
The simple reason for this is that the buyer must take the property in the condition it is in, at the point when there is a binding contract for the purchase. Practitioners should always bear in mind that the common law principle of caveat emptor (let buyer beware) still applies to conveyancing transactions. STEP THREE: CONFIRM ANY UNPAID LAND RATES Upon performing a search, the next step is to ensure there are no unpaid Land rates attached to the Land you intend to purchase. This can be done by conducting the search at the county office where the Land is located. There is a fee attached to the search which will usually vary from
4 Land Registration Act 2012
5 Rignall development ltd vs Halil 1988
county to county. It is therefore very important to discuss with the seller who is to cover this costs in case there is unpaid Land rates. STEP FOUR: GET THE LAND MAP The next step is to acquire at least two land maps for the land you intend to purchase from the Land registry or from a local surveyor. One of the maps is drawn to scale showing the exact measurements of the land or mutation while the other will give an overview of the land together with its adjacent plots. Each map will cost you about 300 to 350 Kenya shillings6. STEP FIVE: LAND VERIFICATION After acquiring the two Land maps together with the surveyor and the seller you then proceed to the actual location of the land to authenticate everything on the map. This is a very important step that people tend to skip because of various reasons like they trust the seller then it becomes a problem when it is too late. It is therefore very important to verify everything and then ensure you go ahead to erect beacons to prevent any future misunderstandings or disputes.7 STEP SIX: SALE AGREEMENT After all the other steps have checked out, the buyer and the seller can now get down to writing a sale agreement which is done by a lawyer. A sale agreement basically entails all the factors that will guide you in this process which includes; price, method of payment, and the mode of payment.The sale agreement is very important because it will protect you legally in case any party fails to honor their part of the agreement. The price of the sale agreement often varies with the value of the land and the location. What distinguishes contracts over land from other contracts, are the formalities required for the land contracts. Due to the value attached to land and its peculiarity, contract for sale of land is subject to more stringent conditions.
Section 3 (3) of the Law of Contract Act 8provides that no suit shall be brought upon a contract for disposition of an interest in land unless the contract upon which the suit is founded is
6 Kenyan Land search and cadastre by Tom ojienda
7 on 28/03/2023
8 Land Registration Act section 3
in writing, 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. The requirement for writing was endorsed in the ease of Dorris Morgan –Vs- F. Stubenistsky [1977] eKLR9 STEP SEVEN: LAND CONTROL BOARD CLEARANCE The next step is to acquire clearance from the Land Control Board which comprises the county commissioners and the elders of the area where the Land is located. The clearance is for purposes of ensuring that the Land transaction and transfer was transparent and there was no illegality involved. The board meeting is often held every month with dates varying across different counties at the cost of one thousand Kenya Shillings. However, there is often a special board meeting which can be held in case of an urgency and its often at a higher cost of around five thousand Kenya Shillings.10 STEP EIGHT: LAND VALUATION The next step after getting the green light from the Land Control Board is to fill a valuation form and apply for Land Valuation. This is often done at the Land registry where the Land is located; the land’s office will compute the stamp duty to be paid which is often based on the value of the land and its location. In the sale agreement it should be stated clearly who between the seller and the buyer should pay for the stamp duty to avoid any form of confusion.11 STEP NINE: TRANSFER OF LAND The next step after paying the required stamp duty based on the Land valuation is to apply for the transfer of the Land which is done through the Land Registry. The buyer and the seller both sign the required transfer forms and then the buyer then proceeds to the Land Registry where the Land is located. The seller must go with the following documents for the transfer to be done; 1. The Land Control Board Consent Form
9 Dorris Morgan vs F.Stubenistsky 1977
10 Ibid 7
11 Stump duty Act
2. KRA pin 3. 2 Passport size photos 4. The old Title Deed 5. Sale agreement Section 38(1) of the LRA 2012 states that the Registrar shall not register a transfer unless a written statement by the relevant government agency certifying that all outstanding rates and other charges in respect of the land is produced to him. The document is referred to as a Rates Clearance Certificate12 The change of ownership normally takes about three weeks and will cost you about 1,000 to 2,000 Kenya shillings which vary in different counties. STEP TEN: FINAL STEP At this stage the seller will have received the new title deed showing that ownership has been transferred and the old title deed has been destroyed. The seller as the new owner will then proceed to pay the required stamp duty which is often based to the value of the land and its location. If the land is in the municipality you pay 4 percent of the sale value, if it’s in the locality you pay 2 percent of the sale value. When you are done do a search at the Land Registry to confirm that the land has indeed been transferred to you. After the confirmation you can then celebrate since you will now be a land owner. 13 ‘DOCUMENT DONE BY KONYONY HILLARY LEGAL SCHOLAR (MKU)’
12 Land Registration Act Section 38(1)
13 Ibid 7