PROPRIETARY RIGHTS AND TRANSACTIONS

CONVEYANC)NG

Conveyancing is generally understood as the transfer of estates and interests in land by a legal process.
Abbey Robert and Richard Mark consider Conveyancing as the process by which legal title to property is
transferred. According to Black’s law dictionary, Conveyancing is the act of drafting and preparing legal
instruments especially those that transfer an interest in real property. There are two parties to the
transaction, the transferor and the transferee. According to prof. Phillip Kenny and Russel Hewitson, in
their book Conveyancing in practice, they say Conveyancing is concerned with the legal mechanism
whereby the ownership of land or of an interest in land is transferred from one person to another. It can be
referred to as the ‘how’ of the law. Conveyancing relates to land or an interest in land only.

The main work of a conveyancer is to draft, to construct and utilize the instruments for creating and
transferring interests in land and to ensure that the person who makes the transfer has a marketable title,
making enquiries and searches, confirm the completion of the transaction.

SOURCES OF THE LAW OF PROPRIETARY TRANSACTIONS

THE REGISTRATION OF THE DOCUMENTS ORDINANCE OF 1915

This was enacted together with the crown lands ordinance of 1915. It set up registries in Nairobi,
Mombasa and Malindi. The land registries were set up to facilitate the registration of documents relating
to transactions involving alienated crown land. This was the first registration statute in Kenya. All the
documents registered under this statute related to land which was the subject of either a lease of 999 years
or agricultural land leases, which had been converted into freeholds by the commissioner pursuant to the
1915 crown land ordinance, it was applicable only to unadjudicated claims at the coast. Most parts of the
registers maintained under it have been converted to RLA and RTA.

THE LAND TITLES ACT 1908

It was enacted in 1908 for the purposes of alienation of crown lands at the coast, the reason why it was
enacted was to enable the colonial government to distinguish between private land and crown land
situated within the 10 miles coastal strip. The individuals who successfully claimed private land were
issued with certificates of ownership giving them freehold title or certificates of mortgage or interest
covering leasehold depending on the nature of title adjudicated. It’s worth noting that the titles issued
under the LTA did not create new rights, they only confirmed existing rights. Any land which was not
successfully claimed by private individuals was vested in the colonial government and after independence
in the Kenyan government.

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THE REGISTRATION OF TITLES ACT 1920

It was enacted in 1920. All successfully claimed plots were registered under it, today any titles
adjudicated in 1920 and thereafter are registered under this act. The RTA was enacted principally for the
purpose of improving the issuance of title to land as well as regulating transactions in land. It introduced
Conveyancing by statutory forms. This act deals with all land granted by the government or subject to the
certificates of ownership, mortgage or interest issued by the registrar of titles under the LTA. It also
applies to all leaseholds which have been converted from the 99 years term or 999 years term since 1920
to freeholds or to any titles converted on a voluntary basis from government lands act or LTA registration
to RTA titles.

THE INDIAN TRANSFER OF PROPERTY AC T 1882

The LTA, the registration of documents ordinance and RTA were basically registration statutes and they
only provided for the registration of ascertained interest in land but not the manner of dealing or
transacting in the same interest. When they were enacted, there was no substantive law governing the
conduct of proprietary transactions or conveyancing. The concept of titles at that time in Kenya was still
new. The government resorted to articles 11(b) of the 1897 East Africa order in council which allowed the
application of the 1882 ITPA. The act provided for the Lacuna in Kenya. (Lack of substantive legislation
to deal with conveyancing). The ITPA still remains the substantive law governing transactions concluded
under the LTA and the GLA. The main shortcoming of the ITPA was that it was neither a conveyancing
nor a registration statute. The RLA was thereafter enacted to act as a substantive conveyancing and
registration statute.

REGISTRATION OF LANDS ACT (RLA)

Under this statute, the president was given powers to sign documents granting title. The president
delegated these powers to the commissioner of lands. It abolished the compulsory requirement under the
registration of documents act in respect to transactions relating to alienated government land. It governs
all freeholds and leasehold interest granted by the government prior to 1920 but of course with the
exception to leaseholds converted to 99 years or freeholds under the RTA.

RLA Cap 300

This one was enacted in 1963 to achieve 2 main objectives;

a. It was to facilitate the registration of all land owned by Africans under the law
b. Simplify and unify the registration process which at the time was spread over several registration
statutes.

The RLA therefore provided among other things for the conversion of a registration under any of the
other statutes into a registration under its provisions. It was enacted because of the problems those were
with the GLA, LTA and ITPA. The problem is that they were limited only to the registration of title to
land, they did not provide for the procedure through which interests in land registered under them would
be conveyed.

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THE LAND CONTROL ACT Cap 302.

Enacted in 1963 with the aim of regulating by the means of public control the manner in which the land
owner or owner of interest in land is supposed to deal with it. It owes its origin to the land control
ordinance of 1954. This is the ordinance that put an end to the exclusive European dealing in land as was
envisaged under the crown lands ordinance of 1902 and 1915. It ensured that only those who had capacity
to develop land owned it. The land tenure committee had recommended that any system of land tenure
would be unsatisfactory if it permitted unrestricted use and misuse of land. The 1954 land ordinance came
up with a land control board. Consent of the land control board had to be obtained before any transaction
in land was seen as valid. The land control board was given powers to impose conditions as to the
development of land and failure to comply with the conditions could lead to forfeiture of land. The board
was composed of the commissioner as the chairman, the finance secretary, director of agriculture and six
other persons. All transactions in land were to be controlled apart from transmissions of land unless it
involved subdivision of the land, fore closures, and transactions made in favour of the government or trust
board.

Art 60 of the COK sets out the principles of land policing that are supposed to guide the use and
management of land. Art 60(2) of the 2010 CoK then provides that these principles shall be implemented
by a national land policy developed and reviewed regularly by the national government and through
legislation. Art 68 of the 2010 CoK then provides as follows:

That parliament shall:

• Revise, consolidate and rationalize existing land laws.

• To revise sectorial land use laws in accordance with the principles set out in Art 60(1).

LAND ACT of 2012

It repeals the wayleaves Act, the land acquisition Act Cap 295. Section 3 of the land act provides that the
Act applies to all land declared by the constitution to be public land, private land and community land.
Section 5 of the act provides for the various classifications of land tenure in Kenya. Section 7 provides for
various methods of acquisition of land.

THE LAND REGISTRATION ACT OF 2012

It is modeled on the registration provisions of the RLA. Sec 3 and 5 of the act provide that this is the
registration law applicable to all public, private and community land. It repeals the following statute,
ITPA of 1892, the GLA, the RTA, the LTA and the RLA.

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There are two types of conveyancing;

a. Registered conveyancing
b. Unregistered conveyancing.

Registered conveyancing.

It arises where the land in question has been registered. The title or interest in land is proved by an entry
in the official register. Ordinarily, the entry in the official register is considered to be conclusive proof of
title.

Unregistered conveyancing

It arises where the land in question or interest in land are not registered. Title to land in unregistered
conveyancing is usually proved by tracing through the title deeds disposing of the property or interest in
land. It is necessary for one to establish the root of the title and title documents should not be taken as
conclusive proof of title.

FORMALITIES IN THE DISPOSITION OF LAND

Dispositions in land are normally conducted in two phases;

a) Phase one involves the contract for sale of land

b) Phase two involves the completion of the contract commonly known as the conveyancing stage. It
is the stage that which the transfer of the interest in land is effected.

CONTRACT FOR SALE OF LAND

Prerequisites for a contract for sale of land;

• There must be an offer.

• There must be acceptance of the offer.
• Consideration.
• The parties must have the intention to create a legal relationship.
• The parties must have contractual capacity.

Contact for sale of land is subject to certain stringent conditions;

• It is not like any other contract .e.g. sale of chattels.

• Unlike other contracts of sale, this contract must be in writing. To restrict change of mind by
the parties. Sec 3(3) of the Contract Act states that a memorandum of disposition of land must
be in writing. Prior to 2003 a party could enforce an unwritten sale agreement based on part
performance. The courts would consider unwritten sale agreements based on this.

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In 2003, an amendment was then made to the act which stated as follows: that no suit shall be brought
upon a contract for the disposition of an interest in land unless;

a) The contract upon which the suit is based; is in writing and signed by the parties thereto.
b) The signature of each party signing has been attested by a witness who is present when
the contract was signed by such party.

But there is an exception to this section that it does not apply to a contract made by way of public auction
where a resulting trust is created or a constructive trust. The requirement for writing under this
amendment is therefore absolute.

A contract for sale of land must therefore contain the following:

a) The identity of the parties.

b) The transaction.
c) Identity of the property.
d) The consideration that is price of the property.
e) Terms and conditions of the transaction.
f) All the parties to the transaction must append their signatures to the sale agreement. Their
signatures must be attested to by a person present at the execution of the agreement.

REMEDIES

1. Rescission- you can rescind the agreement on the grounds of fraud, if there is breach of the
contract (either of time or payment)
2. Specific performance. For you to seek this remedy you must have performed your part of the
agreement.
3. Damages.

COMPLETION OF THE CONTRACT/ THE CONVEYANCING STAGE

This is done after all the parties have performed their part. This stage comprises of the following;

a) Investigation of the title by carrying out a search at the Lands registry or by doing ground work.
b) Searches to establish the legal ownership of the land and to find out if there are any
encumbrances.
c) Preparation of any conveyancing documents approving and engrossing.
d) Execution, attestation and verification of the documents.
e) Registration of the documents to transfer either ownership or security or even discharge an
interest.

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In some instances sale of land agreements parties incorporate the law society of Kenya conditions of sale
but this may apply with modification

IDENTIFICATION OF CONVEYANCING DOCUMENTS.

Different terminologies are used in conveyancing in respect of certain statutes. This depends on the
statute that you are dealing with. It is therefore important to know what documents you are dealing with
and the particular statute.

Execution and attestation

Execution can be said to be the making of an imprint by the person entitled to an interest in land or a
conveyance. Eg, by signing of an agreement. It can be done by way of signature. Where a company is
involved, a company seal will be involved and attested to by two directors of the company or a director
and a company secretary. For other bodies like societies, trust bodies or organizations, you need to
ascertain from the constitution the person with authority to sign. For Gvt bodies like parastatals you look
at the act establishing the parastatal or organization as to who has powers to sign. Sec 44 of the LRA
provides that every instrument effecting any disposition in land under the act shall be executed by each of
the parties consenting to it. For a corporate body, association, corporative societies or any other
organization, the execution of any instrument shall be effected in the presence of either an advocate of the
high court of Kenya, a magistrate, a judge or a notary public. If an instrument is executed outside Kenya,
it shall not be registered unless it has endorsed on it or attached to it a certificate in the prescribed form.
There are two instances;

• If it is executed within the commonwealth by a judge, magistrate, advocate, a notary public or a

commissioner for oath.
• If the instrument is executed in a foreign country outside the commonwealth then by any other
person or class of persons as the cabinet secretary may prescribe.

Where you are effecting a transfer in addition to execution and attestation you must attach the following
documents;

• A copy of ID or passport.
• A copy of PIN certificate.
• Passport size photographs.
• Where applicable, marriage certificate.
• Such other identification documents as the cabinet secretary may prescribe.

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Under sec 45 of LRA, a person executing an instrument shall do the following

• Appear before the registrar, public officer or other persons as prescribed.

• Be accompanied by a credible witness for purposes of establishing identity unless the person is
known to the registrar, the public officer or any other person
• The registrar, public officer or any other person shall identify the person and ascertain whether
the person freely and voluntarily executed the document and shall complete a certificate to the
effect.
• The registrar can dispense with the verification. This is where the registrar considers that the
verification cannot be obtained without difficulty or is satisfied that the document has been
properly executed. If the registrar confirms that the document has been properly executed he will
record on the document the reasons for dispensing with appearance of the parties. Verification is
a requirement of the LRA 2012.

POWER OF ATTORNEY

It is an instrument by which a person appoints another to act for him in any matter including dispositions
of interest in land. It may be general or specific. The person appointing is known as the principal or the
donor. The person appointed is known as the dornee. The person granting the power of attorney must
have capacity to do so.

See; Grace Wanjiru Munyinyi & another vs Gedion waweru & 5 others.

Under Sec 48 of LRA no instrument executed by any person shall be accepted by the registrar unless the
person executing it was authorized in that behalf by a power of attorney executed and verified in
accordance with Sec 45 of the act. The original power of attorney or a certified copy thereof shall be filed.

There are circumstances where a document can be registered without the power of attorney. These include
under Sec 48(3) where there is a guardian of a person under legal capacity or a person appointed under
some law. But before the registrar can accept a document executed by a guardian or a person appointed to
represent under legal capacity the registrar must be satisfied that the person claiming to be a guardian is
entitled to execute the document and require the production of the appointing instrument of the person
and shall file a notice of explanation to that effect. A power of attorney must be in the prescribed form
and failure to comply renders the power of attorney unenforceable.

See; Mayfare holdings ltd vs Ahmed.

A power of attorney can be revoked by the donor anytime. The donor must issue a notice in the prescribed
form to the registrar.

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 REGISTRATION

Registration can be defined as the process of recording interest in land so as to facilitate the ascertainment
of these interests through searches for effective conveyancing. Once registration is done, an interest in
land is transferred from one person to another. There are several goals of registration. A good registration
system will aim at the following;

a) Achieving security of tenure- it gives one a right to indemnity from the government. It is the
security that a transferee, a chargee or a mortgagee enjoys. It flows from the fact that a purchaser
of land from a proprietor on the register should have commercial confidence in the transaction
unbothered by the deficiency of title not revealed in the register. The government guarantees
security of tenure sec 3(1) of the RTA and sec 24(1). Sec 24, 25 and 26 of the LRA also give
security of tenure by way of guarantee and indemnity. Security of tenure is also guaranteed by the
conclusiveness of the register. No claim that is inconsistent with the registered title can be
enforced against the owner of the interest. A person who has acquired title from a registered
proprietor acquires an invisible title against the whole world.
b) Reduction of litigation- it is achieved through registration in the sense that the size and the
owner of the land are determined. The reduction in litigation is one of the reasons as to why a
good registration system must have survey as an indispensible prerequisite. Once registration has
taken place, one may transact or settle on his land without fear of being sued.
c) Prevention of fragmentation of land- one needs the consent of the land control board in the case
of agricultural land before a subdivision is carried out. This board can refuse consent on the
grounds that the subdivision will lead to unnecessary fragmentation. In urban areas one needs the
permission of the planning, development and user committee. Registration will not be done
without permission of the committee.
d) Facilitation of tax administration- registration enables the government to identify a person
against whom to levy a tax or a rate regarding a parcel of land. Since the land transaction must be
registered the government is able to follow up a sale of land and tax it. Local authorities are also
able to get revenue of trust land.
e) Administration of loan system- security of title makes banks able to advance money to the
proprietors. Once one is registered as a proprietor, it is easy for the person to get money using the
title as security.

REGISTRATION SYSTEMS

There are 2 systems of registration;

a) The deed system

b) The title system

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The RTA and the LTA use the deed system. The RLA and the RTA use the title system

Registration of deed

Under the registration of deed, a public register is kept in which documents affecting interest in land are
copied or abstracted. It is the document or the deed that is registered and not the title. In this system it is
the document that proves title and not the register as is opposed to registration of title. A person who
relies on this kind of register is supposed to enquire into the history of all the transactions affecting a
particular parcel of land. Before any transaction is concluded, it is necessary to establish the good root of
title. This will involve the tracing of proprietors backward to the original grant. In this kind of transaction,
the government does not give indemnity. Dealings in land registered under this system can be very
expensive in terms of money and resources.

Registration of title

A register of title serves as the authoritative record of the rights to clearly define units of land as vested
for the time being in some particular person or body and of the limitations if any to which these rights are
subject. When the property is registered in the registrar, all the land registrar has to do is to check the
details of the property, once the registrar is satisfied that the title is in order then the current legal owners
are entered into the register as the registered proprietors. The registerable transactions are registered
against the title document kept in the registry and a memorandum thereof is endorsed on the register and
on the grant or certificate issued to the proprietor. Apart from overriding interests, all particulars affecting
the title of land are clearly evidenced by merely a perusal of the register that is kept. The register serves as
the final authority and the state accepts responsibility of the entries entered in the register. Certificates are
issued after registration for absolute proprietorships and leases for leaseholds. Registration under this
system is effected pursuant to 3 fundamental principles of the Australian Torres system. They are;

• The mirror principle. The register is intended to operate as a mirror reflecting accurately the
estates and interests affecting registered land.
• The curtains principle. The register is supposed to be the source of all information regarding title.
Finality principle of the title.
• The insurance principle. Any person who suffers loss because of an error in the register should be
put in the same position by way of indemnity as if the register was correct. It reflects the principle
of indemnity by the government.

THE LAW RELATING TO REGISTRATION OF DOCUMENTS AND TITLES

a) Registration under the RDA

It is a record of isolated transactions. The record is evidence that a transaction has occurred but is not in
itself proof of the transactions validity or legality. Sec 4 of the Act states the documents that must be

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registered. It is compulsory that any document conferring or purporting to confer, declare, limit or
extinguish any title, right or interest in or over immovable property must be registered. There are certain
documents like transfer of debentures, leases and licenses to land for terms not exceeding 1 year and
documents which are registerable under GLA, RLA and RTA may not be registered. Under sec 5 of the
Act there are certain documents that are registerable at the option of the person holding them, these
include; deed polls, wills and plans. Under sec 9, all registerable documents must be registered within 2
months, failure to do so will attract a penalty. Under sec 16, the registrar can cancel a registration if it was
obtained by fraud. Under sec 18, a document that is compulsorily registerable and is not duly registered
cannot be used as evidence in court without leave of the court.

b) Registration under GLA

It deals with transactions in government land where it is the leaser. Under Sec 99 of the Act any document
conferring or purporting to confer, declare, limit or extinguish any title, right or interest in land governed
by the Act must be registered. Under Sec 100, where a document is not registered it cannot be tendered in
evidence. Under Sec 101, any document that is executed, creating, assigning, limiting or extinguishing
any right, title or interest to, in or over land registered under the Act is void if it is not registered.

c) Registration under the LTA

Under Sec 57 of the Act all documents affecting the holding or interest in the holding in land must be
registered. Registration is done by making of entries in the register kept pursuant to the provisions of the
Act. Under Sec 58, every document which is not registered shall be deemed void as against all parties
claiming adverse interests thereto by virtue of any subsequent but duly registered document. There are
exceptions to the requirement under sec 58(1). The following documents need not be registered under the
Act;

• Composition deeds
• Documents relating to shares in a joint company.
• Debentures given by such companies capable of creating only a floating charge over the
company’s immovable assets.
• Endorsements upon transfer of such debentures.
• Leases for one year or lessor period.

Under Sec 59 of the Act, no charge or mortgage can be created except by way of a registered document.

d) Registration under RTA

Titles under this act are normally grants which are issued to the proprietor. Titles for the coastal region
will have a prefix ‘CR’. Upcountry ones have an ‘IR’ number. Under Sec 20 of the Act provides that a
transfer, charge or lease and any other instrument purporting to transfer an interest in land must be dealt
with in accordance with the Act. Any dealing in land other that as provided in the act is null and void.
Under Sec 32 of the Act, any instrument, unless registered shall not pass an interest in land. Under Sec
23, a certificate of title issued by the registrar to a purchaser of land shall be taken as conclusive evidence
that the person named therein as the proprietor is the absolute and indivisible owner. Such owner is only

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subject to encumbrances, easements, restrictions and conditions contained in the title. Sec 40 & 41 of the
Act provide that leases for periods exceeding 12 months or for less than 12 months but containing a right
to purchase the reversion must be effected by a registered instrument. Similarly, a charge must be created
by a registered instrument.

e) Registration under RLA

Land register is divided into three sections;

• Property section; contains the particulars of the land eg. Acreage etc
• Proprietorship section; contains the details of the proprietor
• Encumbrances section.

Under Sec 38(1) no land, lease or charge shall be capable of being disposed of except in accordance with
the provisions of the Act. Any attempt to dispose of any land, lease, charge or otherwise than in
accordance with the Act shall be void in creating, extinguishing, varying or affect any lease, estate, right
or interest in the land, lease or charge. Sec 38(2), provides that nothing in sec 38(1) shall be construed as
preventing any unregistered instrument from operating as a contract. An instrument although unregistered
may still operate as an effective contract inter-parties eg; one can sue for specific performance, damages.
Under sec 65 a charge must be completed by registration as an encumbrance and the registration of the
person in whose favour it is created by filing the instrument. Under Sec 47, leases for periods of over 2
years must be registered. Periodic tenancies are not registerable under the Act. Documents must be
registered within 3 months. Failure to do so will attract a penalty. Under Sec 27(a), once a person is
registered as a proprietor of land the person is vested with absolute ownership with all rights and
privileges related thereto. Similarly under sec 27(b) the registration of a person as the proprietor of a lease
shall vest in that person leasehold interest described in the lease together with all implied and express
rights and privileges pertinent thereto. Under sec 28 the rights of a proprietor whether acquired under first
registration or subsequent registration for variable consideration or by an order of the court shall not be
liable to be defeated except as provided in the Act. Under Sec 30, unless the contrary is expressed all
registered land shall be subject to overriding interests. Under Sec 31, every proprietor acquiring land,
lease or charge shall be deemed to have had notice of every entry in the register relating to the land, lease
or charge subsisting at the time of acquisition.

f) Registration under the LRA

Registration under this Act is found at sec 24. Under that section, the registration of a person as a
proprietor of land vests in that person the absolute ownership of the land together with all the rights and
privileges belonging or apertinent thereto. In the same vein the registration of a proprietor shall vest in
that person the leasehold interest described in the lease together with all implied and expressed rights and
privileges belonging or apertinent thereto subject to all implied or express agreements, liabilities or
incidents of the lease. Under Sec 25, the rights of a proprietor are provided for. Under that section, the
rights of a proprietor whether acquired on first registration or subsequently for valuable consideration or
by an order of the court cannot be defeated unless provided for under the Act and shall be held by the
proprietor together with all privileges and apertinents attached thereto free from with all other interests
and claims but subject to the following:

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 ▪ The lease, charges and other encumbrances, conditions and restrictions.
▪ Such liabilities, rights and interests as affect the same and declared by sec 28 not to require
noting on the register.

Under Sec 26 of the Act, the certificate of title issued by the registrar upon registration or to a purchaser
of land upon transfer or a transmission by the proprietor shall be taken by the courts as prima facie
evidence that the person named as the proprietor of the land is the absolute and indivisible owner subject
only to encumbrances, easements, restrictions and conditions endorsed in the certificate and the title
cannot be challenged except:

▪ On the grounds of fraud or misrepresentation to which the person is a party.

▪ Where the certificate of title has been acquired illegally and procedurally or through a corrupt
scheme.

g) Registration under the sectional properties Act no 21 of 1987

Its objective is spelt out in its preamble. It is an Act of Parliament to provide for the division of buildings
into units to be owned by individual proprietors and common property to be owned by the proprietors of
the unit as tenants in common and to provide for the use and management of the units and common
property and for connected purposes. The Act only applies to land held only on freehold title or on a
leasehold title where there is an expired residue of the term of not less than 45 years. See; Sec 2 of the
Act. Sec 4 of the Act provides for the registration of sectional land. A sectional land cannot be registered
unless it describes 2 or more units and is presented for registration in quadruplicate. On the registration of
the sectional plan, the registrar closes the register of the parcel of land and then opens a new separate
register for each unit described in the sectional land. (There should be clear description of each unit). A
title deed is then issued for each unit. The title to the unit is deemed as issued under LRA. Once a register
for a unit is open, the unit may devolve or be transferred, leased, charged or otherwise dealt with in the
same manner and form as land held under the LRA. In the register, the registrar must include the share of
the common area, a portion to each unit. The common property is held by the owner of the unit as tenants
in common with shares proportional to their units. One cannot deal with a share of the common property
separate from the unit.

THE LEGAL EFFECT OF REGISTRATION AND EFFECT OF FAILURE TO REGISTER

The effect of registration is to vest in the person the rights envisaged in the contract between the parties.
Therefore if a sale transaction is registered and a transfer is effected, the purchaser after registration
becomes vested with the rights of ownership. The same applies to transactions involving charges, leases
and mortgages. Challenges of ownership in some cases do arise in respect of customary law interest,
trusts and overriding interests. Different statutes have different standards of registration. The
consequences of failing to register a registerable instrument varies from Act to Act. Some Acts provide
that failure to register renders the transaction void while others provide that failure to register renders the
document inadmissible as evidence. A lot of difficulty arises when you are dealing with registerable and

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unregistrable interests. This is so because the latter must also be recognized although they are not
registered. The other challenge arises when you are dealing with customary law holding.

The problem is worse when it comes to leases. There could be a lease that is not registered but one party
is already in occupation and is performing its part. See; Walsh-vs-Do….., Moudou brothers-vs-
Ramchad….

CONSTRUCTION OF DOCUMENTS

The essence of interpretation is to attempt to discern the intention of the parties. Documents are
interpreted following the general principles of the construction of documents. There are 3 general
principles;

a) The golden rule

b) Ejusdem generis rule
c) Falsa demonstration non facet.

The golden rule

This prescribes that words must be given their ordinary and natural meaning. The words are given their
natural and grammatical meaning unless this would result in some absurdity, repugnance, or
inconsistency with the rest of the document. Apart from their natural meaning, the words must be
interpreted within their context in relation to the document as a whole and regard must be given to the
background circumstances. Extrinsic evidence may also be taken into account including past negotiations,

Ejusdem generis rule

This rule applies where there is a list of things referred to in general and would thus apply to things of the
same kind. E.g. Reference to digging, ploughing, planting, or doing any other thing to the land. The
words any other thing should be construed by reference to the specific words before it and should
encompass activities related to digging, ploughing or planting. Therefore, weeding should be covered in
the words “any other thing.”

Falsa demonstration non facet

This rule provides that a false description should not vitiate the conveyance. For instance, a false
description of the title number if it is clear the parcel number being referred to.

Parole evidence

Sec 99-105 of the Evidence Act provides that no evidence of an oral agreement or statement shall be
admitted in order to contradict, vary, and add or to subtract from the terms of a written agreement. This is
the general rule as to parole evidence although parole evidence will cover all instances where extrinsic
evidence is introduced in order to interpret a written document.

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THE ROLE OF ADVOCATES IN LAND DISPOSITION

Advocates play a key role. They have the responsibility of ensuring that land dispositions are transacted
in accordance with the law and to ensure that the rights being transacted are properly transferred to the
beneficiary. There are 2 aspects of the role of Advocates in land transactions that are important;

a) Professional undertakings
b) Conflict of interest.

Professional undertakings

This is a promise by an Advocate of the performance of his clients obligations. The Advocate in a
professional undertaking promises the other party to the transaction that the obligations to be performed
by his client will be performed and if not the Advocate will be responsible for the same. That is why it is
called an undertaking as the Advocate undertakes that the obligation will be performed by his client and if
not then that Advocate is ready to take the responsibility of performance. An undertaking is made in
writing although it can also be oral. It is a sort of insurance against financial loss to the other party. If an
Advocate gives an undertaking, then it is binding on him and he must perform the same. An Advocate as
a professional does not have any duty to give an undertaking. The law does not compel and advocate to
give a professional undertaking, it is his personal decision to do so. However in most instances and indeed
a prudent advocate will only give an undertaking if he is certain of the performance of the obligation by
his client. Therefore if an advocate acts for a purchaser, he may give an undertaking to the vendor or his
advocate that the purchase price will be paid on happening of an event or by a certain date. It is only
prudent that such an advocate gives an undertaking if he has the funds already deposited in his account by
the client. An Advocate acting for a seller may also give an undertaking that he will deliver the
documents of title and the transfer forms. It is prudent that such undertaking is given when the advocate
has at hand the documents of title. Once an undertaking is given, it cannot be withdrawn unless by
agreement of the parties. It can only be enforced by the person it was given to. Also, it is only binding to
the person who gave the undertaking.

See. Peter Ng’ang’a Muiruri-vs-Credit Bank & Charles Ayako Nyachae & co Adv.

Kenya re-insurance corporation-vs-Muguku Muriu trading as Muguku Muriu & co Adv.

An undertaking is akin to a contract and only the recipient of the same may sue on it. The definition of an
undertaking has been described from the guide to the professional conduct of solicitors seventh edition of
1996 as follows; “an undertaking is any unequivocal declaration of intention addressed to someone who
reasonably places reliance on it and made by;

• A solicitor or a member of a solicitor’s staff in the course of practice.

• A solicitor as solicitor’s but not in the course of practice.

An undertaking is personally binding on a solicitor. It may be given orally or in writing and did not
necessarily include the word undertake. There is no obligation on a solicitor to either give or accept an
undertaking although there is a duty to act in a client’s interest, this does not imply a duty to assume or
underwrite a client’s financial or other obligations.

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See; KCB-vs-Adala.co & adv 1983 KLR pg 461

N paul Radier-vs-David Njogu Gachanja trading as DNjogu & co Adv.

Oraro & co Adv-vs-SMKivuva HCCC 539 2003

James Murimi Githinji trading as Githinji Kimamo & co adv-vs-John Ngure Mbugua trading as Ngure
Mbugua & co Adv.

Advocates responsibilities in land disposition

An Advocate undertaking a conveyance has the following obligations;

a) Correspondence. An Advocate must carry out correspondences to enable him gather as much
information on the conveyance as possible. When acting for the seller or the vendor, you must
obtain the following information.
• Full names and addresses of the parties. The buyers advocate or agent.
• Full particulars of the property being conveyed.
• The purchase price.
• Whether a deposit is being paid or has been paid.
• Details on any encumbrances on the property.
• Whether the property is vacant.
• Expected date of completion.
• Prepare the sale agreement.
• Prepare title documents.
• Approve the transfer or the conveyance.
• Attest the execution of the transfer.
• Receive and account for the proceeds of the sale to the client.

When acting for the buyer an Advocate will require similar information but he must advise the
client on the following;

• Finances.
• Possible future liability for taxes.
• Legal costs and expenses of the conveyance.
• Carry out a search.
• Scrutinize the documents.
• Approve the sale agreement.
• Prepare transfer or conveyance
• Stamp and lodge the documents for registration.
• Obtain and pay purchase price to the vendors Advocate.

When acting for both parties an Advocate must refrain from acting for both where there is
conflict of interest or there is likely to be a conflict of interest.

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Other duties will include;

b) To obtain a rates clearance certificate

c) To obtain a land rent certificate
d) To obtain consent of commissioner for lands.
e) To obtain land control board consent.
f) To obtain town clerks consent.
g) To obtain consent of trustees if the land is held in trust.
h) To obtain consent of public cooperation authority.
i) Obtain a discharge or a reconveyance.
j) To pay stamp duty.

Disposition of land by transmission

Transmission basically means the passing of land, lease or charge from one person to another by
operation of the law. Transmission is a unique type of conveyancing because the proprietor of the land is
not able to do the transfer himself. The proprietor is normally dead, insolvent or bankrupt.

Transmission upon death of the proprietor

Under the LTA, the GLA and the RTA, when the proprietor of land dies, the administrators of his estates
are registered as proprietors against the title with the probate or letters of administration. When the
proprietor of land dies, the PR or administrator to the estate of the deceased will make an application to
the registrar. He will be required to produce letters of probate or administration. When the registrar is
satisfied, he will be registered as such and can then deal with the land. Prior to this, he cannot deal with
the land. The same applies to where there is a charge or a lease. Under the RLA, a transmission does not
take effect by registering against the title the probate or letters of administration produced by the
deceased’s PR. Instead, the executor or administrator who wishes his name to be registered must
complete prescribed forms and present them for registration like any other registerable document. Where
the land is agricultural land the land control board consent is not required unless it will lead to subdivision
of the land. This is the same situation prevailing under the LRA. Under Sec 60 of the LRA, where there
are joint tenants of any land or lease, or charge, if one of them dies, the registrar shall upon proof of death
delete the name of the deceased tenant from the register by registering the death certificate. Under Sec
61(1), if it is a case of a sole proprietor or where a proprietor in common dies, the proprietors personal
representative shall apply to the registrar in the prescribed form and on production to the registrar of the
grant, shall be registered by transmission as the proprietor in place of the deceased with the addition after
the representatives names of the words; “as executor of the will of the deceased or as administrator of the
estate of the deceased.” Under Sec 62(1), the PR, shall hold the land, lease or charge subject to any
liabilities, rights, interests, that are unregistered but enforceable and subject to which the deceased
proprietor held the land, lease or charge.

Transmission on bankruptcy

Under Sec 63(1) of the Act, once an order of court adjudging a proprietor of land as bankrupt, or directing
that the estate of a deceased person be administered according to the law of bankruptcy is produced to the

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registrar then a copy of the order shall be filed, the trustee in bankruptcy shall then be registered as
proprietor of any land, lease or charge of which the bankrupt is a proprietor. In other cases under Sec 65
where a person has been entitled to land, lease or charge under any law or by virtue of any order or
certificate of sale made or issued under any law, the registrar shall, on the application of an interested
party supported by instruments of transfer or such evidence as the registrar may require register the
person entitled as proprietor.

LEASES AND TENANCIES

Leases are interests conferring a right to the land itself as opposed to interests conferring a right
enforceable against the land of another person. The latter includes mortgages, charges, easements, profits,
licenses and restrictive covenants. A lease can also be defined as a document creating an interest in land
for a fixed period or certain duration usually in consideration of payment of rent. In the case of;

Prudential assurance company ltd-vs-London residuary body

Lord templeman defined a lease as a contract for the exclusive possession of and profit of land for some
determinant time.

In the case of

National carriers’ ltd-vs_-Panalpina ltd

It was held that a lease is an executory contract where rights and obligations are outstanding between the
parties during the course of the lease.

A lease creates for a term of years a leasehold relationship between a landlord or a lessor and a tenant or a
leasee. Sec 3 of the RLA defines a lease as the grant with or without consideration by the proprietor of
the land of the right to exclusive possession of his land and includes the right so granted and the
instrument granting it and also includes a sublease but does not include an agreement of lease. Sec 105 of
the ITPA, defines a lease of immovable property as a transfer of a right to enjoy such property made for a
certain time, express or implied or in perpetuity in consideration of a price paid or promised or of money
a share of crops, service or anything of value to be rendered periodically or on specified occasions to the
transferor by the transferee who accepts the transfer on such terms.

The grantor of the lease is known as the lessor or landlord and the grantee is known as the leasee or a
tenant. Under the LRA, a lease is defined to mean;

a) A lease or sublease, whether registered or unregistered of land

b) A short term lease or agreement to lease.

Essentials of a lease

Going by the above definition, it is clear a lease is not created unless there are the following things;

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 a) Exclusive possession
b) Determinant term
c) Defined premises

Exclusive possession

In a lease, a tenant acquires the right of possession exclusive of the landlord and all other people claiming
through the landlord. In the case of;

Street-vs-Mountford

It was held that in determining whether a tenancy has been granted the main question is whether there has
been a grant of a right to exclusive possession of the premises. Exclusive possession is just but one
element of a lease and therefore it does not follow that if you are given the right of exclusive possession
you are a tenant.

Coffee estates-vs-Ujaggar Singh.

Determinant term

The period of the lease must be defined or capable of being defined. It must be specified when it starts
and when it terminates. In the case of

Harvey-vs-Pratt

It was held that it is necessary that these requirements are fulfilled before the lease takes effect even if
they are not agreed upon when the lease is executed. Where the date of commencement and termination
are not specified the transaction is rendered void.

Defined premises

A lease cannot be created if the premises are not defined or are not capable of being defined. In the case
of;

Heptulla brothers ltd-vs-Jambha Jeshanghai Thakore

The court held that a tenancy could not be created where the premises intended to be let out could not be
ascertained with sufficient precision.

Under Sec 56 of the land Act which is a replica of sec 45 of the RLA provides that subject to the
provisions of a land the owner of a private land may;

a) Lease that land or a part of it to any person for a definite period or for the life of the lessor or of
the leasee or for a period which though indefinite may be terminated by the lessor or the leasee.
b) Subject the lease to any conditions that may be required by the act or any other law or that the
lessor may impose.

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Periodic leases.

Sec 57 of the land Act creates periodic leases. Under sec 57(1),

a) If 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 tenancy.
b) If 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 6 months.
c) If the leasee remains in possession of the land with the consent of the lessor after the term of the
lease has expired then;
• Unless the lessor and the lease have agreed expressly or impliedly that the continuing in
possession shall be some other period the lease shall be deemed to be a periodic tenancy.
• All the terms and conditions of the lease are consistent with the provisions of
subparagraph one shall continue in force until the lease is terminated in accordance to this
section.
d) If the owner of land permits the exclusive occupation of the land or any part of it by any person at
a rent without any agreement in writing, that occupation shall be deemed to constitute a periodic
tenancy.

A periodic tenancy may be terminated by either party giving notice to the other, the length of which shall
be not less that the period of the tenancy and shall expire on one of the days on which rent is payable.

Short term leases

Sec 58 of the Land Act creates short term leases. These are leases;

a) Made for a term of 2 years or less without an option of renewal.

b) That is a periodic lease.
c) To which Sec 57(2) applies.

A short term lease may be made orally or in writing. A short time lease is not a registerable interest in
land.

Future leases

Under Sec 61(1) of the land Act, a future lease can be created. A lease of land may be made for a term to
begin on a future date not being later than 21 years after the date on which the lease is executed. A future
lease which is expressed to be for a period more than 5 years shall be void if it is not registered.

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RIGHTS AND OBLIGATIONS OF A PARTY TO A LEASE

The general rule is that rights and obligations of parties to a lease are set out in the lease agreement.
Where parties to a lease agreement fail to invoke the rights and obligations in the lease agreement,
statutory obligations are applied to the lease agreement. Obligations in a lease may be posed in one or two
ways;

a) By covenants or
b) Conditions.

Implied obligations of the landlord

See Sec 65 of the Land Act;

a) Quiet enjoyment.

For as long as the leasee pays the rent and observes and performs the covenants and conditions contained
in or implied in the lease, the lessor should not interfere with the leasee. There should be no disturbance
of whatever nature.

In the case of Hajib Kenya ltd and another-vs-Jilani

The court enforced this right by holding that the appellants who were tenants of the respondent were
entitled to quiet possession and the attempt by the respondent to terminate their lease was unlawful
because there was no allegation that they were in breach of any covenant or had failed to pay their agreed
rent.

b) Non-derogation from the land

The landlord or lessor is required not to use or permit any adjoining or neighboring land that the lessor
owns or leases that would in any way render the leased land or building unfit or materially less fit for any
purpose for which they may be used consistent with the terms and conditions of the lease.

In the case of Birmingham district banking company-vs-Ross

Bowen J held that a grantor having given away a thing with one hand is not to take away the means of
enjoying it with the other.

c) Duty to repair

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At common law there was generally no implied guarantee by the landlord as to the fitness of the subject
matter of any letting. The broad rule was caveat emptor. There are now however exceptions imposed by
common law and statutes. Under Sec 65(1)(c) of the Act the landlord has a duty to keep the roof, all
external and main walls and main drainage and the common parts and common installations and facilities
including common passages and walk ways in a proper state of repair.

d) Fitness for habitation

The lessor is required to ensure that if any dwelling, flat or room is leased, that the same is fit for human
habitation at the commencement of the lease and shall be kept fit for habitation during the lease.

e) Duty to disclose material facts

The landlord is required to disclose any material defect in the leased property which is within his
knowledge and of which the tenant is not aware.

f) To pay all rates, taxes, dues or other outgoings that are payable in respect of the lease land

There are certain covenants that are implied in the lease. One of them would be;

• To allow the lessor personally or by agents to enter the leased land or buildings.
• To terminate the lease by serving a notice of intention to terminate the lease where the leasee is in
breach of the terms of the lease.

Implied duties of the tenant

a) Obligation to pay rent

To pay rent reserved by the lease at the times and in the manner specified in the lease.

b) To use the land in a sustainable manner and in accordance with any conditions imposed on the
use of that land by the lease.
c) To yield up the land and building in the same condition they were in when the term of the lease
began
d) To keep all boundary marks in repair.
e) To keep all buildings comprised in the lease in a reasonable state of repair. See sec 67 of the
Land Act
f) Not to sublease, charge or transfer the property

A tenant must not transfer, charge, sublet or otherwise part with the possession of the leased premises or
any part thereof unless the landlord has given permission in writing.

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ENFORCEMENT OF OBLIGATIONS UNDER A LEASE

Enforcement by the landlord

The landlord can enforce his rights in the following ways;

• Distress for rent

• Forfeiture of the lease
• Action to recover arrears.
• Injunction

a) Distress for rent

Distress for rent can be described as the right to remove certain goods or chattels from the possession of a
tenant in order to compel him to pay rent due. Under sec 3(1) of the distress for Rent Act, any person
having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the
same remedy by distress for the recovery of that rent as is given by the common law of England in a
similar case. Under sec 4 of the act. The goods are seized after which if the tenant fails to pay the
outstanding rent within 14 days, the seized goods are sold by way of public auction.

b) Forfeiture

This remedy allows the landlord to re-enter the premises making the lease voidable at the landlord’s
option if the tenant breaches the contract of the lease. Most lease agreements contain a forfeiture clause.
Under sec 74 of the Land Act, the forfeiture of the lease determines every sub-lease and every other
interest appearing in the register relating to that lease. A forfeiture can be set aside by a court of law if it
was procured by fraud or where the court grants relief against forfeiture under Sec 76 of the Act. Under
Sec 75 of the Land Act, a lessor cannot exercise the right of forfeiture for the breach of any agreement or
condition in the lease whether express or implied until the lessor has served with the leasee a notice of not
less than 30 days. The notice will specify the particular breach. If the breach is capable of remedy
requiring the leasee to remedy the breach within a certain reasonable period specified in the notice. In any
case other than the payment for rent requiring the leasee to make compensation in money for the breach.
If the leasee fails to remedy the breach or make compensation forfeiture will then follow.

c) Action to recover rent arrears

The lessor file a suit for recovery of the rent owed.

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 d) Action for damages

Where a landlord proves breach by the tenant of any covenant other than that for payment of rent the
court can award damages for the breach.

e) Injunction

A landlord may go to court to stop certain breach of certain covenants in the lease. This is done by way of
seeking an injunction. An injunction can only be granted if the party seeking it satisfies the conditions for
grant of an injunction. See; Giellar-vs-Cassman brown

Remedies of a tenant.

A tenant can institute proceedings against the landlord for an injunction or damages. The tenant can also
repudiate the agreement altogether.

TERMINATION OF LEASES AND CONSEQUENTIAL EFFECT

There are many ways of terminating a tenancy or in which a tenancy can come to an end.

a) Termination by notice

If a lease is for a fixed term and notice period was prescribed in the lease then there must be termination
by notice. A periodic tenancy on the other hand is determined by either party giving to the other notice the
length of which subject to any other law shall not be less than the period of the tenancy and shall expire
on one of the days on which rent is payable. Where a notice is required under a lease to be given it must
be given in the proper form otherwise it will be invalid. The notice must indicate that the tenant must
vacate the premises on a specified date

b) Termination by lapse of time

Where a tenancy is for a prescribed period of time, the tenancy expires automatically on the expiry of the
stipulated period without any requirement that the tenant should be given any form of notice. Where the
termination of a tenancy is premised on the occurrence of a certain event the tenancy automatically
terminates at the occurrence of that event.

c) Termination by surrender of the lease

A lease or tenancy may be determined by the surrender of the tenants’ interest to his immediate landlord.
If the landlord accepts the surrender the tenants’ term of years merges forthwith in the landlords’
reversion and is extinguished. A surrender of a terms lease may be made expressly or impliedly by
operation of the law.

d) Termination by forfeiture

Forfeiture of a lease has the effect of terminating the lease. Under Sec 73 of the Land Act, forfeiture of a
lease arises in the following circumstances;

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 • Where the leasee commits any breach or omits to perform any agreement or condition on
his part expressed or implied in the Act.
• Where the tenant is adjudged bankrupt.
• Being a company goes into liquidation.

The right of forfeiture may be exercised in one of the following ways

• Where neither the leasee nor any person claiming through or under him is in occupation of the
land and remaining in possession of the land.
• Enforced by an action in the court.

The acceptance by the lessor of any rent after service of a notice of forfeiture under sec 75 does not
operate as a waiver of the lessors’ right of forfeiture unless the lessor has by any other positive act shown
an intention to treat the lease as subsisting.

e) Termination by frustration

The contractual doctrine of frustration sometimes does apply to leases. Where for instance a property is
wholly destroyed or rendered substantially and permanently unfit for the purposes of which it was let. In
such a case the lease becomes voidable at the option of the leasee.

CHARGES

Sec 56 LRA, talks about the form with effects of charges.

• Needs to be registered

REMEDIES OF A CHARGEE

Under the ITPA the chargee or mortgagee would be entitled to exercise statutory power of sale right of
foreclosure and the right to take possession. Under the Land Act, the chargee has several remedies but
before exercising any of those remedies section 90 of the land act comes into play. Under this section if a
charger is in default of any obligation, fails to pay interest or any other periodic payment or any part
thereof due under any charge or in performance or observation of any covenant in any charge the chargee
may serve the charger a notice in writing to pay the money owing or to perform or observe the agreement
as the case may be. IF THE CHARGER DOES NOT COMPLY WITHIN 2 MONTHS OF SERVICE OF
THE NOTICE THEN THE CHARGEE MAY DO THE FOLLOWING

a) Sue the chargee for the money owed

b) Appoint a receiver of the income of the charged land.
c) Lease the charge land or if the charge is of a lease sub lease the land.
d) Enter into possession of the charged land.

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 e) Sell the charged land.

See:

Sec 91 of the Land Act.

Sec 92- appointment powers of a receiver.

Sec 93- the charges power to lease.

Sec 94- the power of the chargee to take possession of the charged land.

Sec 95- withdrawal of the lender from possession of the charged land.

Sec 96- charges power of sale of the charged land.

Sec 97- the duty of the chargee while exercising the power of sale. Eg. Shall ensure that a forced sale
valuation is undertaken.

Sec 98- powers incidental to the power of sale

Sec 99- Protection of purchaser

Sec 100- Purchase by chargee

Sec 101- Application of proceeds of sale of charged land

Sec 103- Application for relief by charger

Sec 104- Power of the court in respect of remedies and reliefs

Sec 105- Power of the court to re-open certain charges and revise terms

Sec 106- Exercise of power to re-open certain charges

© NOTES BY PATRICK MULI KILONZO (ADVOCATE)

END

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