Acquisition of land in Kenya is a bureaucratic process that many potential buyers shy away from. As much as there is a multiplicity of institutions that oversee land registration in Kenya, failure by buyers to adhere to the stipulated procedures is proving to be too expensive later for them.
The buyers may also not have the enough information on the same and some seek the services of a middlemen some of whom are incompetent and use shortcuts which again prove to be costly.
Procedures for purchase or sale of land is as follows,
- Obtain a copy of the Title deed of the owner of the piece of land and present it to the County Land Office for an official Title search. Due to the sensitive nature of land in Kenya, some of the vendors may be skeptical on the issue of even giving out a copy of the title deed. If one is faced with such a scenario, they are advised to do the search together. The search is important because it authenticates the piece of land to the alleged owner. Some of the information that are paramount in this step is
- Land Registration Number
- The name of the registered owner
- If there are any charges on the property i.e., if it has been used as collateral in banks.
- The tenure. (Leasehold or freehold)
- Registry Index Maps- This shows the position of the parcel of land with other adjoin sheets of neighboring parcel of land.
- After obtaining all the information and confirming the authenticity of the title deed, one has to do an autopsy on the seller and determine whether he/she has the said capacity to sell the land. We have had cases were one is involved in a property transaction and the seller has no any capacity to sell the property. Failure to consider the aforementioned issues, is a prerequisite to land disputes.
- If the party selling the land is a Private Limited Company, the buyer has to scrutinize the Articles of Association and Memorandum of Understanding to determine whether there are clauses that permit sale of property. The buyer can solely carry out this process or seek the services of a lawyer.
- If the registered owner has passed on, use of the will to ascertain the inheritors is essential.
- There are pending cases where people have been allocated disputed lands. To avoid such occurrences, the buyer has to go through the court registries and Land Reports like Ndungu Land Report (2004) armed with the Land Registration Number to check whether there are any unresolved disputes or if the land was irregularly allocated to the owner respectively.
- Registration of land in Rural and Urban areas are treated differently. In an urban land, for any subdivision, a Physical Planner should be involved for them to draw a subdivision scheme before the same is pushed forward to the Land Controls Board (LCB) if the land in question is of agricultural use. This brings us to the use of land. There are two types of land uses. Agricultural and residential. For Agricultural Land, the LCB should be involved in the event of a transaction. The seller should apply to the board to obtain a consent to sell the land. This always applies if the land in question is freehold. For a leasehold, the seller applies to the National Land Commission for consent to lease the land. Therefore before one proceeds on with the process of purchasing a parcel of land, land use should be known for the right procedures of transfer or registration to be followed.
- For an urban land, before any transaction is carried out, a Rates Clearance certificate should be issued from the Rates department to ensure that the parcel of land in question does not have any outstanding rates.
- A Registry Index Maps or what is commonly known as RIMs should be procured from the County Survey Office. This map clearly shows the location of the parcel of land in a certain vicinity. The parcel of land may be subjected to subdivision and it during this process that a registered surveyor should be involved. The surveyor carries out survey on the parcel of land and a mutation form is acquired then used to ascertain the subdivisions. If the land is in an urban area, then consent to subdivide and consent to sell should be applied to the LCB. For this case a registered planner is needed to create the subdivision schemes before the same is forwarded to a surveyor to carry out the surveys. If the surveys are acceptable, the RIM of the area is amended and new Land Registration Numbers given to the new parcels of land.
- Sale agreement: this process should involve an attorney and the buyer should pay 10% of the total amount as a commitment. The balance should be paid within 90 days from the date of signing the sales agreement. Before the sales agreement, all the involved parties and their families should ascertain that the transaction has been agreed upon.
- After the sales agreement, all the documents should be forwarded to the land registrar who will involve a Land Valuer to determine the value of the land. This is for the purposes of payment of stamp duty which is always 2% and 4% for urban land. When all the fees have been paid, then the Land registrar has the power to hand the buyer his/her title deed.
Professionals involved in the whole process include
- A cadastral surveyor/Geospatial Engineer.
- A Physical Planner.
- A Valuer/real estate agent.
- A lawyer.
- Land registrar.
Do you want to purchase land? Do you know of any person in the above title? Ask them their opinion and they will direct you accordingly on the procedures and the process discussed above for you to be on the safe side.