KENYA Trends and Developments Contributed by: Abdullahi Garane, Grace Mando, Elaine Murgor and Derrick Asalah, Garane & Somane Advocates
Specialised Real Estate Dispute Tribunal A dedicated Real Estate Dispute Tribunal should be established with powers to: • issue interim freeze orders on project titles and accounts within 24 hours; • conduct expedited hearings; and • deliver binding decisions within strict timelines (ideally 90 days). This would provide a fast, low-cost and specialist alternative to the High Court, restoring investor confi - dence that disputes can be resolved efficiently with - out years of costly litigation. The Tribunal should also have jurisdiction to enforce milestone certifications and direct refunds from escrow accounts. Additional supporting measures The firm further recommends the creation of a buyer protection guarantee fund, capitalised through a small (1–2%) levy on all off-plan sales, to provide emergen - cy compensation in cases of developer insolvency, abandonment or structural collapse. Standard-form sale agreements incorporating mile - stone payments, buyer exit rights and clear disclo - sure requirements should be prescribed by regulation, reducing the ability of developers to impose one-sided terms. Finally, a co-ordinated national programme involving the Ministry of Lands and relevant professional bodies to accelerate conversion of sublease developments under the 2020 Act would ensure that all unit owners, not just those in new projects, enjoy the full protec - tions of the modern regime. The Future Outlook for Off-Plan Investments in Kenya The outlook for off-plan investment in Kenya is positive and full of potential, provided the regulatory reforms outlined above are prioritised and implemented with urgency. With the housing deficit still hovering around 2 million units and urbanisation continuing at approxi - mately 4.3% annually, demand for quality, transpar - ently managed housing remains strong and largely unmet.
Full operationalisation of mandatory escrow with mile - stone triggers, developer licensing and vetting, a fast- track tribunal and a buyer protection fund would move the sector from high-risk, high-reward to a genuinely investable asset class for a much wider pool of capi - tal, including: • pension funds; • insurance companies; and • diaspora investors seeking stable returns. In the meantime, investors should exercise height - ened due diligence and treat off-plan purchases with the same rigour as any other significant investment. Key questions to ask any developer before signing include: • Is the project approved? • Are buyer funds held in an independent, ring- fenced escrow account with milestone release conditions? • What is the developer’s track record on previous projects, and have they completed on time and to standard? • Has the land title been independently verified, and are there any encumbrances, charges or caveats? • What independent professional oversight is in place for construction quality and milestone certifi - cation? Additionally, engaging an experienced property law - yer to review the sale agreement, conduct due dili - gence and negotiate protective clauses before sign - ing remains the single most important protective step any buyer can take. The cost of proper legal advice upfront is minimal compared with the potential loss of a lifetime’s savings. Developers who embrace transparency, milestone- based payments, independent escrow and third-par - ty oversight will be best positioned to attract capital, complete successful projects and build long-term rep - utations. Those who continue with opaque practices, rigid payment schedules and limited accountability risk losing market share as investor awareness and regulatory expectations rise. The market is maturing, and the developers who adapt will thrive.
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