KENYA Law and Practice Contributed by: Anne Kinyanjui and Loice Erambo, DLA Piper Africa, Kenya (IKM)
Preparation of an Agreement for Sale Agreements for sale must generally meet the requirements under Section 38 of the LA and Section 3 of the Law of Contract Act, and there - fore must: • be in writing; • be signed by all the parties to the contract; and • have the signature of each party attested by a witness. The agreement is prepared by the seller’s advo - cates. Obtaining Completion Documents The seller’s advocate obtains the completion documents, which include the title document, the signed transfer document and land control board consent (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’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. There - after, the transfer is lodged at the land registry for valuation of the property for purposes of assess - ing the stamp duty payable. Subsequently, the purchaser pays stamp duty and files the transfer at the land registry for registration. If the transfer is to be effected through the Ardhi Sasa platform, the parties will be required to have Ardhi Sasa accounts. The transfer is initi - ated on the platform and signed by the parties electronically. Valuation of the property will be initiated online and payment of stamp duty done via ardhi pay. When the transfer is registered,
land in accordance with the law and traditions, customs and the way of life in the community of the controlled area. The Landlord and Tenant Bill, 2021 seeks to con - solidate the laws relating to the renting of busi - ness and residential premises, and to regulate the relationship between landlords and tenants to promote stability in the rental sector.
2. Sale and Purchase 2.1 Categories of Property Rights
There are two main categories of property rights: • leasehold tenure – a lease interest in immov - able property for a specific period, subject to the payment of a lease premium or rent to the owner; and • freehold tenure – an absolute ownership inter - est in immovable property, subject only to the provisions of law. 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 resi - dential, retail, industrial, business or hotels. For community land, the Community Land Act also applies. The SPA is the primary 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 performed by the purchaser; see 2.4 Real Estate Due Diligence .
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