KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
duty and files the transfer at the land registry for reg - istration. If the property is on Ardhisasa, the transfer is initiated on the platform and signed by the parties electroni - cally. Valuation of the property will be initiated online, and payment of stamp duty done via Ardhipay. When the transfer is registered, the original title and regis - tered documents are collected from the land registry. The law does not require landowners to insure their titles. Title insurance is not common in Kenya. 2.4 Real Estate Due Diligence Title due diligence in Kenya is not just about the cur - rent register entry. Increasingly, purchasers are also undertaking deeper title and development due dili - gence in order to verify the history and legality of the title and to identify planning, environmental and public land risks that may not be apparent from the register alone. The purchasers’ advocates conduct due diligence as follows: • review the title document to confirm the landowner and property details; • conduct relevant searches and enquiries to estab - lish the root of title and basis upon which the title was allotted; • conduct a title search at the land registry to con - firm the property details, including existing encum - brances; • undertake a search at Survey of Kenya to confirm the boundaries and permitted use of the property – the purchaser may also appoint a surveyor to identify the property on the ground and confirm the boundaries and size; • peruse the report by the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, 2003 and other available records to ascertain whether the property is adversely mentioned or originated from public land; • peruse all notices published by the NLC to ascer - tain whether the title is due for revocation due to any illegalities in acquisition;
• peruse the gazette notices published by the Min - istry of Lands and Physical Planning to ascertain whether the property is listed for conversion; • ascertain whether the property falls under the SPA and, if applicable, whether sectional titles have been or will be obtained for units of the property; • physically inspect the property to confirm the absence of squatters, suitability for purpose and compliance with environmental laws; and • perform searches on the seller to confirm identity and capacity to contract – this may include a com - pany search, where applicable. Increasingly, purchasers are also instructing profes - sionals such as surveyors and planners to undertake in-depth due diligence over properties to determine whether properties are on a road reserve, airport land, forest land or public utility land, and to confirm bea - cons and boundaries. 2.5 Typical Representations and Warranties Representations and Warranties On the purchaser’s insistence, the seller may issue representations and warranties to the effect that: • the seller is the legal and beneficial owner of the property and has good title to it; • the seller has full authority to enter into the con - tract for sale and, where the seller is a corporate entity, all necessary approvals have been obtained; • the property is not situated on public land, riparian land or in a buffer zone or road reserve; • the property is not subject to any undisclosed encumbrance, restriction, caution, overriding inter - est or third-party right; • the seller is not engaged in any litigation, dispute or investigation relating to the property; • there are no notices issued by any governmental authority for compulsory acquisition, revocation, planning enforcement, demolition, environmental non-compliance or other adverse action affecting the property; and • the seller is not in breach of planning, zoning or environmental laws, or building requirements. Representations, warranties and their survival peri - ods are not prescribed by law; they are negotiated by the parties. A seller may cap their liability as at the
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