KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
2.2 Laws Applicable to Transfer of Title The LA and LRA are the primary statutes that apply to the transfer of real estate title, be it residential, retail, industrial, business or hotels. For community land, the Community Land Act also applies. The SPA is the pri - mary statute governing the transfer of sectional titles. 2.3 Effecting Lawful and Proper Transfer of Title Conducting Due Diligence Transfer of title begins with due diligence being per - formed by the purchaser; see 2.4 Real Estate Due Diligence . Preparation of an Agreement for Sale Agreements for sale must generally meet the require - ments under Section 38 of the LA and Section 3 of the Law of Contract Act, and therefore must: • be in writing; • be signed by all the parties to the contract; and • have the signature of each party attested by a wit - ness. The agreement is prepared by the seller’s advocates. Obtaining Completion Documents The seller’s advocates obtain the completion docu - ments, which include the title document, the signed transfer document and Land Control Board (LCB) con - sent (where applicable). The transfer is drafted by the purchaser’s advocates. Transfer of Title Upon payment of the full purchase price to the seller or the issuance of suitable undertakings to the seller or the seller’s advocates for payment of the financed balance of the purchase price (if any), the seller’s advocates release the completion documents to the purchaser’s advocates. Thereafter, the transfer is sub - mitted through Ardhisasa for valuation of the property for purposes of assessing the stamp duty payable. Although the roll-out of Ardhisasa has been phased and remains county- and transaction-specific, all valu - ation of property for stamp duty purposes across the country will be processed through Ardhisasa. All par - ties to the transaction will be required to have Ardhisa - sa accounts. Subsequently, the purchaser pays stamp
• construction 3D printing, which has begun to appear in Kenya, including in affordable housing and small-scale development projects, although it remains an emerging rather than mainstream con - struction method. These technologies will have the following effects: • certain land administration and transaction pro - cesses that have been digitised are more efficient; and • construction technologies may improve speed and efficiency in specific projects, although adoption remains limited. 1.3 Proposals for Reform The Land Control Bill, 2022 seeks to rationalise the law on dealings in agricultural land with the provisions of the Constitution, the Environmental and Land Court Act, the LA and the LRA. The Bill proposes to intro - duce Land Control Committees, which will regulate dealings in agricultural land in accordance with the law and traditions, customs and way of life of the community of the controlled area. If enacted, it will be significant for investment, ownership and develop - ment transactions involving agricultural land. The Real Estate Regulation Bill, 2023 seeks to intro - duce a new framework for regulating real estate agents and projects in general and would repeal the Estate Agents Act, Chapter 533. If enacted, it could have a material effect on the marketing and sale of real estate projects, and on the wider regulatory environ - ment for real estate service providers.
2. Sale and Purchase 2.1 Categories of Property Rights
There are two main categories of property rights: • leasehold tenure – a lease interest in immovable property for a specific period, subject to the pay - ment of a lease premium or rent to the owner; and • freehold tenure – an absolute ownership interest in immovable property, subject only to the provisions of law.
389 CHAMBERS.COM
Powered by FlippingBook