The excitement of finding the right property can sometimes cause purchasers to overlook important legal checks.
A title deed, however genuine it may appear, should not be the only basis upon which a purchaser decides to proceed with a transaction.
Proper due diligence is essential to establish who owns the property, whether the seller has the legal capacity to sell, whether there are third-party interests or encumbrances, and whether the purchaser can safely acquire and register the property in their name.
Kenyan land transactions are governed by several laws, including the Constitution of Kenya, the Land Registration Act, 2012, the Land Act, 2012, the Law of Succession Act, the Matrimonial Property Act, 2013, and other applicable legislation and regulations.
Before signing a sale agreement or paying a substantial deposit, a prospective purchaser should consider the following legal checks:
1: Conduct an Official Search
An official search establishes the registered particulars of the property, including the registered proprietor and any interests or encumbrances registered against the title.
A purchaser should not simply rely on a copy of a title deed presented by the seller.
An official search should therefore form part of the purchaser’s legal due diligence before committing substantial funds.
2: Verify the Seller’s Identity and Authority to Sell
The purchaser should establish that the person offering the property for sale is the registered proprietor or is legally authorised to act on behalf of the proprietor.
The seller’s identification documents should be compared against the details appearing in the land records.
Where the registered owner is a company, additional due diligence may be necessary to establish:
- The company’s existence and status;
- Its directors and authorised representatives;
- Whether the property is registered in the company’s name;
- Whether the appropriate corporate approvals have been obtained for the transaction.
If a person is acting under a power of attorney or other authority, the purchaser should verify the validity and scope of that authority.
3: Confirm the Physical Location, Acreage and Boundaries
Legal due diligence should be accompanied by physical verification.
A purchaser should visit the property and, where necessary, engage a licensed surveyor to confirm:
- The location of the property;
- The boundaries;
- The beacons;
- The approximate acreage;
- Access to the property;
- Any encroachments or boundary disputes.
The land shown to the purchaser should correspond with the parcel identified in the title and survey records.
This is particularly important where the property is being sold as a subdivision or where the purchaser intends to acquire a specific portion of a larger parcel.
A purchaser should not rely solely on the seller’s description of the property.
4: Establish Whether Spousal or Matrimonial Property Rights Are Involved
A purchaser should establish whether the property is matrimonial property or a matrimonial home and whether any legally required spousal consent has been obtained.
The fact that property is registered in the name of one spouse does not necessarily mean that the other spouse has no rights or interests capable of affecting the transaction.
The Matrimonial Property Act, 2013 recognises rights and interests arising from matrimonial property and addresses spousal consent in circumstances prescribed by law.
A purchaser who ignores potential spousal interests may later face a dispute concerning the transaction.
5: Establish the Root of the Title
How did the seller acquire the property?
Before purchasing land, a purchaser should establish how the seller acquired ownership and trace the property’s ownership history.
This involves examining the title document together with supporting documents, such as a sale agreement, transfer, allotment letter, grant, transmission documents or court order, to confirm that the seller’s title arose from a lawful and verifiable process.
An official search alone is not always sufficient, as registration may not cure an unlawful or fraudulent acquisition.
The purchaser’s advocate should investigate the chain of ownership, particularly where the land has changed hands several times, and confirm that each transfer was properly executed, approved where necessary and registered. Any unexplained gaps, irregular transfers, cautions, restrictions, disputes, succession issues or unusually rapid changes in ownership should be investigated before the transaction proceeds.
Where necessary, inquiries should also be made with the relevant land registry, survey office, county government, previous owners or the original allocating authority.
Establishing the root of title protects the purchaser from acquiring land affected by fraud, competing claims or defects that may later lead to cancellation of the title.
If a dispute arises, the purchaser may be required to demonstrate that reasonable due diligence was undertaken.
6: Check Land Rates, Land Rent and Other Statutory Requirements
Depending on the nature and location of the property, the purchaser should establish whether there are outstanding statutory obligations.
These may include:
- Land rates;
- Land rent, where applicable;
- Relevant clearance certificates;
- Consents required for the particular transaction;
- Other statutory requirements applicable to the property.
A purchaser should not assume that outstanding liabilities will automatically disappear when ownership changes.
7: Investigate Occupation and Third-Party Interests
An official search may not tell the whole story.
A physical inspection of the property is therefore essential.
The purchaser should establish:
- Who occupies the property;
- Whether there are tenants;
- Whether family members are living on the property;
- Whether someone is cultivating the land;
- Whether there are informal purchasers;
- Whether there are squatters;
- Whether there are persons claiming beneficial interests;
- Whether there are boundary or access disputes.
This is especially important because a person may claim an interest in land even where their name does not appear on the title.
Such circumstances should be investigated before signing a sale agreement.
8: Check Permitted Use, Planning and Development Requirements
If the property is being purchased for development, the purchaser should establish its permitted use. The property may be designated for agricultural, commercial, industrial or residential use, including single-dwelling or multi-dwelling development, among other permitted uses.
Confirming that the property’s permitted use matches the intended development may save the purchaser from having to make expensive and time-consuming change-of-user applications to the relevant authorities.
9: Have a Proper Sale Agreement Prepared and Reviewed
Once the purchaser is satisfied with the legal due diligence, the parties should proceed with a properly prepared written sale agreement.
The agreement should clearly address matters such as:
- Purchase price;
- Deposit;
- Completion period;
- Completion documents;
- Conditions precedent to completion;
- Discharge of existing charges;
- Consents and clearances;
- Possession;
- Transfer and registration;
- Apportionment of rates and other outgoings;
- Default;
- Remedies;
- Dispute resolution.
A purchaser should be particularly cautious about paying a substantial deposit before the necessary legal due diligence has been completed.
A properly drafted agreement should also contain an exit clause to protect the purchaser where a transaction cannot proceed because of a title defect, an undisclosed encumbrance or the seller’s failure to satisfy agreed completion conditions.
Important Red Flags When Buying Land in Kenya
- The seller is hesitant to allow an official search to be conducted;
- The original title is not made available for inspection by you or your lawyer;
- The purchaser is pressured to make an immediate payment;
- The seller’s name does not match the title;
- The seller claims that the original title has been lost;
- The property is registered in the name of a deceased person;
- A spouse objects to the sale;
- The property is occupied by persons whose interests are unclear;
- The seller insists on a cash transaction without proper documentation;
- The price appears suspiciously low;
- The seller refuses to involve advocates.
If you are considering purchasing land in Kenya, obtaining independent legal advice before signing a sale agreement or paying a substantial deposit can help identify potential problems early and protect your investment.
Do You Need a Lawyer?
A lawyer can assist a purchaser throughout the transaction by conducting legal due diligence, identifying potential risks, preparing and executing transfer documents, facilitating payment of applicable stamp duty, registering the transfer and ensuring that the transaction is structured to protect the purchaser’s interests.
We’re Here to Help
At Njuru & Company Advocates, we assist with legal due diligence, sale agreements, conveyancing, property searches, negotiations, completion and registration of land transactions.
Njuru & Company Advocates
📞 0718 784 960