KENYA Law and Practice Contributed by: Anne Kinyanjui and Loice Erambo, DLA Piper Africa, Kenya (IKM)
2.5 Typical Representations and Warranties Representations and Warranties
the original title and registered 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 Purchasers’ advocates conduct due diligence as follows: • review the title document to confirm the land - owner and property details; • conduct a title search at the land registry to confirm the property details, including exist - ing encumbrances; • undertake a search at the survey department 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 to confirm if the property is adversely mentioned; • peruse all notices published by the NLC to confirm if the title is due for revocation due to any illegalities in acquisition; • peruse the gazette notices published by the Ministry of Lands and Physical Planning to confirm if the property is listed for conversion; • confirm if 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 existence 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 company search, where applicable.
On the purchaser’s insistence, the seller may issue representations and warranties to the effect that: • the seller is the legal owner of the property; • the seller has full authority to enter into the contract for sale; • the property is not situated on public land or in a buffer zone or road reserve; • the seller is not engaged in any litigation relat - ing to the property; • there are no notices issued by any govern - mental authority for compulsory acquisition of the property; and • the seller is not in breach of environmental laws. Representations warranties and their survival period are not prescribed by law; they are nego - tiated by the parties. A seller may cap their liabil - ity as at the date of the agreement for sale, while a purchaser may negotiate to extend the seller’s liability until the date of transfer or a reasonable period after the date of transfer. A seller may also cap their financial liability to the purchase price amount. Enforcement of Representations and Warranties The agreement for sale gives the purchaser the option to: • terminate the agreement in the event of mate - rial misrepresentation or breach of a warranty; or • claim damages if the breach is not material. Representation and warranty insurance is not common in Kenya.
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