LAW OF PROPERTY IN LAND II

(LPL 208)
STEPHEN NYARANGO AYIERA
 INTRODUCTION
• Conveyancing- ‘legal process through which ownership of land
or of an interest in land is transferred from one person to
another.’ Prof. P.H.Kenny.
• Conveyancing includes; sales, purchases, leases,
charges/mortgages, settlement etc (Strouds Judicial Dictionary)
• Conveyance- ‘an instrument conveying an interest in land from
one person to another.’ (Graveland v Porter)
• Rights and obligations of parties
• Concerns land or interests accruing there from.
• The student to have a grasp of other disciplines of law e.g. land
law (I), contract law, environmental law, equity and trust laws,
planning laws, revenue laws, company law, law of succession etc.
 INTRODUCTION
SUBJECTS OF CONVEYANCING
(i) Freehold
(ii) Leasehold
(iii) Charge
(iv) Licence different from lease s.2 of the Land
Act (Runda Coffee Estates .vs. Ujagar Singh
(1966)EA 564). PART VI of the Land Act, PART
IV of the LRA.
 INTRODUCTION
• One can assign a Lease but not a licence.
however a licence coupled with interest can
be assigned.
(V) Easements & Analogous Rights- Kamau vs.
Kamau-creation of easements Part X of the
Land Act, Part X of the LRA
 Conveyancing process
• Preparation of contract of sale-sale
agreement.
• Investigation of title to land.
• Searches to establish the legal ownership of
land and encumbrances.
• Preparation of Conveyancing documents,
approving and engrossing.
• Registration of documents to either transfer
ownership or security or discharge an interest
 ELEMENTS OF CONVEYANCING
• DUTIES & RESPONSIBILITIES OF THE
ADVOCATE.
(i) Initiation of correspondence upon being
seized of instructions.
(ii) ACTING FOR A SELLER/VENDOR
(a) obtain full particulars of the parties;
(b) particulars of the property;
(c) Consideration/price;
(d) Deposit-find out whether paid
 ELEMENTS OF CONVEYANCING
(e) details of encumbrances e.g. Charge.
(f) whether property vacant and chattels
thereon
(g) Completion date and availability of
purchase money
(h) prepare sale agreement.
(i) prepare title documents
(j) approves transfer/conveyance
(k) procures execution of transfer of
conveyance
ELEMENTS OF CONVEYANCING
(iii) When Acting for the Purchaser.
(a) As above (a-g)
(b) Advise the client on finances, future
liabilities, legal costs and other
expenses
(c) carry out the search
(d) scrutinize title documents
(e) approve sale agreement and
requisition for the same
 ELEMENTS OF CONVEYANCING
(f) Prepare transfer or conveyance and
engross the same (Engrossing-making of
final fair copies of a conveyance/document)
(g) execution of the conveyance or transfer
(h) stamping and lodging the documents for
registration.
(i) obtaining and paying the purchase price to
the vendor’s advocates.
 ELEMENTS OF CONVEYANCING
(iv) When Acting for both Parties
• Purchaser and vendor, lender and borrower-
ethical and professional responsibility issues
arise
• Not to act where there is or likelihood of
conflict of interest, s.134 (1) of the Evidence
Act, King Woolen Mills Ltd vs. M/s Kaplan &
Stratton Advocates Civil Appeal No.55 of
1993
 ELEMENTS CONVEYANCING
• Issuance of professional undertaking-promise
to do or not to do something.
(a) given to professionals;
(b) to be in writing even nothing in principle
to prevent it from being oral
(c) required when obtaining title documents
from a lending institution/vendor’s
advocate
(d) discharging a mortgage/charge on
completion
 ELEMENTS OF CONVEYANCING
• The advocate must take instructions on:
(i) Name, address, telephone number and e-
mail of the client if alias it should be
indicated so. Where names differ
(identification and title documents) the
client to swear a statutory declaration as
provided under Oaths and Statutory
Declaration Act Chapter 15 Laws of Kenya.
(ii) Details of the property i.e Land Reference
Number/Title Number
 ELEMENTS OF CONVEYANCING
(iii) To obtain deposit if acting for the purchaser.
Even though there is no legal requirement to
that effect. Its is a sign of commitment to the
transaction at hand.
Condition 3 of the L.S.K conditions of sale
10% of the purchase price to be paid on or
before executing the agreement for sale of
land.
(iv) Information regarding completion date-
enable one to establish breach of contract or
not.
 ELEMENTS OF CONVEYANCING
-to be agreed amongst parties (90 days
under the L.S.K conditions of Sale).
-place of completion.
-Completion documents .
-default on or before the date of
completion may lead to rescission of the
contract by the aggrieved party.
- No legal action may be taken on the
contract before the expiry of the contractual
date of completion
 ELEMENTS OF CONVEYANCING
- contractual date of completion follows the
actual date of completion.
- completion notice may be served by a
party who is ready, able and willing to
complete the transaction. The notice
requires the other party to complete the
payment within 21 days failure to which
the aggrieved party may rescind the
contract.
- Time is of essence clause.
 ELEMENTS OF CONVEYANCING
(v) Source of the purchase money. So as to issue
professional undertaking where necessary.
(vi) special terms which parties wish to be
included in the agreement of sale.
(vii) Nature of property ownership-
joint/common ownership, natural/juristic
person.
(viii) approval of the sale agreement,
execution, stamping (though not necessary),
obtaining deposit from the purchaser and
have it held by a stakeholder
 ELEMENTS OF CONVEYANCING
• Stakeholder (an advocate or an agent)-holds the
deposit pending the completion of the sale.
• SEARCHES
• Establishes
• Land reference number;
• The owner/proprietor;
• Registration particulars;
• Presence of encumbrances;
• Presence of any burdens i.e covenants imposed on
the land
 ELEMENTS OF CONVEYANCING
(a) Official search- ss.34-36 of the LRA
• Particulars of the subsisting entries in the
register, certified copies of any document, the
cadastral map, or plans filed at the registry upon
payment of prescribed fees.
• Certified copies signed by the registrar to be
received as prima facie evidence in court.
• Undertaken by officials at the Registry, more
advantageous than a personal search because it
enjoys a state guarantee.
 ELEMENTS OF CONVEYANCING
PROCEDURE
• Pays the prescribed fees and applies in
writing for an official search to the Land
Registrar.
• Land registrar conducts the search and issues
a Certificate of Official Search.
• Government to be held responsible for
whatever they purport to find.
 Elements of conveyancing
(b) Personal Search
• Conducted by the advocate or his clerk;
• Advocate takes personal responsibility for
what he purports to find.
PROCEDURE
• Pays the prescribed fees, requests for the
parcel documents then takes notes.
(c) Postal Search
• Results of the search are mailed/posted to the
applicant
 ELEMENTS OF CONVEYANCING
• Not prudent because the status of the register
may be altered by the time the results reach
the applicant through the post.
 ELEMENTS OF CONVEYANCING
(FURTHER OBLIGATIONS
(i) Obtaining a Rates Clearance Certificate
• Properties within a rating authority;
• Imposed pursuant to the Rating Act Cap 266.
 ELEMENTS OF CONVEYANCING
(see also the Urban Areas and Cities Act)to raise
revenue from land located within their
municipalities/jurisdiction.
• Rates levied after the local authority
concerned has undertaken valuation and
opened up a Valuation Rating Roll.
• A proprietor may object to the valuation. If no
objection, the rates are confirmed after
sometime.
 ELEMENTS OF CONVEYANCING
• Upon payment of requisite rates. One is issued
with a Rates Clearance Certificate
• Without a Rates Clearance Certificate, the
Land Registrar will not register any transfer or
conveyance or any dealing in land. (s.38 LRA)
• Rates to be paid whether property of freehold
or leasehold.
(ii) Obtaining a Land Rent Certificate
not required where the land in question is
freehold (s.39 of the LRA )
 ELEMENTS OF CONVEYANCING
(iii) Obtaining Consent from the National Land
Commission.
• Where land is leasehold
• Initially issued by Commissioner for Lands
(iv) Obtaining Land Control Board Consent
• Imposed by the Land Control Act Cap 302
• Required where the land in question is
agricultural land
 ELEMENTS OF CONVEYANCING
(v) Obtain consent from the Board of
municipalities/Cities /County Governments (s.20
(d) of the Urban Areas and Cities Act).
• Where the lessor is a municipality, City or County
Government.
• Initially was a town’ clerk’s consent.
(vi) Obtaining Consent of Trustees
• In cases of settled land, where the Consent of
trustees must be obtained e.g. Where the land
in question is vested in the National Parks of
Kenya their consent must be obtained
 ELEMENTS OF CONVEYANCING
(vi) Land owned by other authorities
• Where one is dealing with Kenya
Railways/Kenya Ports Authority land one must
be obtained
(vii) Obtaining a Discharge/ Re-conveyance.
• Where the land in question is the subject of a
charge, it must be discharged and a discharge
obtained.
 ELEMENTS OF CONVEYANCING
(viii) Payment of Stamp duty
• Ss. 5, 6, 7, 10, 19, 20, 24 and 26 of Stamp duty Act,
CAP 480 Laws of Kenya.
• A document required to be stamped shall not be
registered until the requisite stamp duty has been
paid. (S. 46 LRA)
• Instruments which must be stamped are : transfer,
lease, partition, charge and mortgage, discharge of
charge and re-conveyance of mortgage, insurance
policy, higher purchase agreement, chattels mortgage,
transfer of chattel, Powers of Attorney, debenture and
Memorandum and Articles of Association.
 ELEMENTS OF CONVEYANCING
• Stamp duty is based on a % of consideration based
on the instrument/value of the subject matter.
• Valuation section of the Department of Lands to
value the property for purposes of assessment of
stamp duty.
(i) Transfer of Immovable Property
(a) Land within a Municipality - 4% of the value of the
property
(b) Land outside a Municipality/agricultural land-2%
of the value of the property
 ELEMENTS OF CONVEYANCING
(ii) Mortgages and Charge/2nd/subsequent
charges
2/= per 1,000/= i.e. 0.2% or 0.002.
(iii) Further Mortgage or Charge: 1/= per
1,000/= i.e. 0.1% or 0.001.
(iv) Equitable Mortgage or Charge 1/= per
1,000/= i.e 0.1 or 0.001
(v) Discharge of Charge or Re-Conveyance of
Mortgage-Stamp Duty is also based on the
amount secured. The rate is 50 cts per 1,000/=
i.e., 0.05% or 0.0005.
 ELEMENTS CONVEYANCING
(vi) Leases-stamp duty based on the Annual Rent
Payable.
(a) Period exceeding 1 year but less than 3 years: 10/=
per 1,000/= i.e. 1% or 0.01
(b) Period exceeding 3 years: 20% per 1,000/= i.e. 2%
or 0.02.
(vii) Gift inter-vivos (voluntary transfer)-given during
the life of the donor.
• ‘in consideration of love and affection’ however
transfer for value and stamp duty is based on the
value of the property.
 ELEMENTS OF CONVEYANCING

• Capital gains 5% on the gains made on the

transfer of properties (Income Tax Act)
(viii) Transmissions (Testate and Intestate)
• Attracts a nominal amount of stamp duty
where the property is transferred to a
beneficiary
(ix) Agreement for Sale: Nominal Amount –
500/=
(x) Surrender of Lease-Nominal Amount
 ELEMENTS OF CONVEYANCING
• EXECUTION.
s.44 of the LRA
 Is the making of an imprint by the person entitled
to an interest on a conveyance.
Attestation-witnessing the signing of documents
Instruments effecting disposition of interest in
land must be executed by parties consenting to it.
Execution-Appending a person’s signature or
affixing thumbprint or other mark.
Juristic person ascertain from their Constitution
the mandated person authorized to execute
 ELEMENTS OF CONVEYANCING
Company –affixing of the seal and attestation
by either one/two directors or a director and a
company secretary.
Government bodies- the establishing Act will
provide who is empowered to execute the
documents.
Cooperative Societies Act, the Limited
cooperative Societies will execute documents
by affixing their seal thereto.
Execution of instruments by a corporate body,
association, cooperative society or any other
 ELEMENTS OF CONVEYANCING
organization shall be effected in the presence of
either an advocate, magistrate, judge or
notary public.
 Instruments executed outside Kenya must be
endorsed or a certificate on a prescribed form
is attached thereto and completed by:
If commonwealth by a judge, magistrate, notary
public, commissioner for oaths; outside the
commonwealth any other person as the
Cabinet Secretary may prescribe.
 ELEMENTS OF CONVEYANCING
Documents accompanying which the transferee
must attach in addition to executing the
documents.
copy of the ID or passport, PIN certificate,
passport size photographs, marriage certificate
where applicable, other identification
documents as prescribed by the Cabinet
Secretary.
• VERIFICATION (s. 45 of LRA)
Verification of signature
 ELEMENTS OF CONVEYANCING
• Instruments under the Act to be executed in
the presence of the Registrar, public officer or
prescribed person who should attest the
signature and complete a certificate verifying
the due execution of the instrument.
• A person executing an instrument shall be
accompanies by a credible witness for the
purpose of establishing identity unless the
person is known to the Registrar, Public Officer
or other person.
 ELEMENTS OF CONVEYANCING
• Registrar, public officer or other person shall
identify the person and ascertain whether the
person freely and voluntarily executed the
instrument and shall complete the certificate
to that effect.
• Registrar may dispense with verification
where it cannot be obtained or it can only be
obtained with difficult and he is satisfied that
the documents have been executed properly.
Shall record on the documents the reason for
dispensing with the appearance of parties.
 ELEMENTS OF CONVEYANCING
• Assignment: Students to read provisions on
execution, verification and attestation as outlined
in the repealed Land Laws.
• POWER OF ATTORNEY s.48 LRA
An instrument by which a person appoints another
to act on his behalf in any matter, including
disposition of interest in land
 person appointing –principal/donor
Person appointed donee
Power of attorney conferring power to the holder
thereof to transfer property must be:
 ELEMENTS OF CONVEYANCING
(a) Registered
(b) Executed
(c) Attested and verified

REVOCATION OF POWER OF ATTORNEY

 The donor has died
 The donor has been declared bankrupt
 The donor has suffered disabilities i.e. Insanity
 The donee has died/suffered a disability
 ELEMENTS OF CONVEYANCING
• Power of attorney may be specific or general.
Assignment: Students to read the provisions on
power of attorney as outlined in the Repealed
Land Laws.
CAPACITY TO DISPOSE/ACQUIRE AN INTEREST IN
LAND
 Contractual arrangement depending on
capacity to contract.
Law of Cotract Act (CAP 23)
Capacity to contract. (s.47 and 48 LRA)
 ELEMENTS OF CONVEYANCING
NATURE OF THE DISPOSITION CONTRACT
 A memorandum of disposition of an interest in land
must Failure to have the contract in writing will
render it unenforceable.
 be evidenced in writing (s.3 of CAP 23)
(Read ss.38-42 of the Land Act)
 However a party may bring an action where the
contract is not evidenced in writing but is backed by
part performance e.g. Where the intending
purchaser has taken possession of the property in
question (s.3(3) of CAP 23).
 ELEMENTS OF CONVEYANCING
 The essence of a written memorandum
evidencing the contract for disposition of an
interest in land is a signed admission of its
existence and essential terms.
RESCISSION OF AGREEMENT FOR SALE OF LAND
 Must be done in accordance with its
provisions (if any).
Issuance of proper notice otherwise the
aggrieved party may seek the remedy of
specific performance.
 PROFESSIONAL UNDERTAKINGS
• An unequivocal declaration of intention
addressed to someone who reasonably places
reliance on it and made by an advocate or a
member of an advocate’s staff in the course of
practice.’
• A promise by an advocate to do or not to do
something.
• Given to professionals.
• Its binds the giver (advocate).
 PROFESSIONAL UNDERTAKING
• Once given cannot unilaterally withdrawn if it has been
relied upon by the recipient.
• Once given must be performed.
• Once given ‘It transcends the mere transaction and
assumes the character of an acid test on the honesty of
the advocate’
• Peter Ng’anga Muiruri v Credit Bank and Charles
Ayako Nyachae t/a Nyachae & Co. Advocates. Civil
Appeal No. 263 of 1998 (Court of Appeal at Nairobi) ‘
‘An undertaking is a solemn thing. In enforcing an
undertaking the court is not guided by considerations of
contract but the court aims at securing the honesty of its
officers.’
 PROFESSIONAL UNDERTAKING
• United Mining and Finance Corporation Ltd v Beecher
(1910) 2 KB 296 (read)
• Kenya Reinsurance Corporation v Muguku t/a
Muguku Muriu & Co. Advocates Civil Appeal No. 48 of
1994 (Court of Appeal at Nairobi). The court will grant
an order to enforce a professional undertaking where
the undertaking is clear, unambiguous, certain and
without any conditions precedents.
• An undertaking once given cannot be watered down by
way of reference to collateral issues.
• Walker Kontos Advocates v Mwirigi M’inoti &
Company Advocates. Civil Appeal No. 20 of 1997
(Court of Appeal at Nairobi).
 PROFESSIONAL UNDERTAKINGS
• Karsan Lalji Patel Vs Peter Kimani Kairu
practising as Kimani Kairu & Company Advocates
Civil Appeal No. 135 of 1999 (Court of Appeal at
Nairobi).
• An advocate remains personally liable in an
undertaking.
• Only the recipient who can complain of its
breach.
• An advocate cannot assign the burden of an
undertaking without the express approval of the
recipient.
 PROFESSIONAL UNDERTAKINGS
• Ambiguous undertaking are generally construed in favour
of the recipient.
• An undertaking will still be binding even if it is to do
something outside the control of the advocate.
• A partner remains responsible for the firm’s
undertakings, even after that Advocate leaves the firm or
the partnership is dissolved.
• An advocate cannot avoid liability on an undertaking by
pleading that to honour it would be a breach of duty
owed to the client.
• An advocate who gives an undertaking which is
expressed to be dependant upon the happening of a
future event must notify the recipient immediately if it
becomes clear that the event will not occur.
PROFESSIONAL UNDERTAKINGS IN
CONVEYANCING
• Vendor’s advocate undertaking not to release the
purchase price to the vendor pending actual
registration of the transfer.
• Purchaser’s advocate undertaking to hold
completion documents to the vendor’s order
pending payment of the purchase price.
• Chargee’s advocate undertaking to pay the loan
proceeds upon registration of the charge plus/ or
transfer simultaneously.
• Chargor’s advocate undertaking to pay the
redemption amounts upon registration of the
 THE PROCESS OF REGISTRATION
• Registration is a process of recording interests in
land which facilitates ascertainment of these
interests through searches for effective
Conveyancing.
• Documentary manifestation of land as a market
commodity.
• vital information of quantum of rights over a
property held by an individual.
 THE BENEFITS OF LAND
REGISTRATION
• Certainty of ownership- certainty as who is the
proprietor and the existing rights over the land.
• (b) Security of tenure-
guarantee/indemnity/incentive to invest.
• (c) Reduction in land disputes.
• (d) Improved Conveyancing-costs and delays in
transferring property rights substantially reduced
 THE BENEFITS OF LAND
REGISTRATION
(e) Stimulation of the land market- Introduction of a
cheap, secure and effective system for recording and
transferring interests in land should improve the
operation and efficiency of the land market.
(f) Security for credit.
(g) Monitoring of the land market. The cadastral
system may be used to monitor and, if necessary, to
control land transactions and ownership.
 THE BENEFITS OF LAND
REGISTRATION
(h) Facilitation of land reform. Land redistribution,
land consolidation and land assembly for
development and re- development.
(i) Management of State lands-cadastral systems.
(j) Support for land taxation.
(k) Improvements in physical planning.
(l) Recording of land-resource information
 RATIONALE FOR REGISTRATION

• passing of interests and rights from one party to

another.
• serves as a documentary manifestation of land as a
commodity.
• provides information regarding the quantum of
rights in land.
• gives a framework for easy transferability of interest
in land
 PRINCIPLES OF REGISTRATION
TORRENS SYSTEM OF REGISTRATION
• Named after Sir Richard Torrens who
formulated the system in 1958 in South
Australia.
• provides a new and improved information
system on property in the form of a register
and the register contains all the material facts
about a particular property.
 PRINCIPLES OF REGISTRATION
• In effect it leads to a creation of a public
record on property full of information of the
kind that would be of interest to anybody
wishing to have any dealings in such property.
• There is an element of security of such a title
or title assurance which does offer a measure
of protection bona fide purchaser without
notice who may wish to acquire such a
property in future.
 PRINCIPLES OF REGISTRATION
There are principles relating to the Torrens System
• The mirror principle – this relates to the accuracy
or certainty or conclusiveness that entries in the
register in as far as the true status of the title is
concerned.
• Insurance Principle –since the state has
undertaken to establish and maintain this sort of
system, it by extension guarantees that there
would be indemnity offered to compensate anyone
who may suffer loss in the process.
 PRINCIPLES OF REGISTRATION
• Indefeasibility - This is to the effect that once
registered as the owner of an interest and such
interest duly disclosed or entered in the register the
rights acquired cannot be defeated by any adverse
claims which are not disclosed in the register.
• Curtain Principle – this relates to the requirement
that the register should disclose precisely the
nature of the interests and who are the owners.
 TYPES OF REGISTRATION
(i) Registration of Deeds.

(ii) Registration of Titles

 REGISTRATION OF DEEDS.
• maintenance of a public register in which
documents affecting interests in a particular
registered land are copied.
• evidentially of the recorded transaction and is
by no means proof of title.
• prima facie proof of the fact that the
transaction in question did occur.
• will not suffice to prove the validity or
legitimacy of such transactions
 REGISTRATION OF DEEDS
• The deed does not have to be consistent with
any registered transaction which may have
previously taken place in connection with the
property in question.
• The deeds system cannot confer any secure
title to land in favour of the person in relation
to whom the registration of the deed has been
executed.
 REGISTRATION OF DEEDS
• Reliance on the deed system is risky as
reliance on the unregistered system.
• Entails a historical deduction of the title in
respect of the property in question if one is to
be sure that the title is good and well rooted.
• No government guarantee as to the accuracy
of entries.
• No indemnity would be available to take care
of any loses arising from omissions that may
be disclosed in the register.
 REGISTRATION OF DEEDS
• Registration under the R.D.A
• S.4 documents which must be compulsorily registered.
Any document conferring or purporting to confer,
declare, limit or extinguish any title, right or interest in
or over immovable property MUST be registered.
• Documents which are not compulsorily registrable
under the Act ……leases and licences to land for a terms
not exceeding one year and documents which were
registrable under GLA,RTA,LTA, RLA (both Repealed).
 REGISTRATION OF DEEDS
• Documents registrable at the option of the
holder (s.5) Deed polls, wills and Plans.
• S.9 Registrable documents MUST be
presented for registration within two months
of execution in default one is liable to pay a
fine not exceeding 10 times the prescribed
registration fees for the document in question,
with a maximum of Kshs.1,000.00
 REGISTRATION OF TITLE
• A register of titles serves as an authoritative
record of the rights to clearly defined units of
land as vested for the time being in some
particular person or body, and of the
limitations if any, to which these rights are
subject.
 REGISTRATION OF TITLE
• The property is recorded on the register
• Land registrar checks the details of the
property upon satisfaction that the title is in
order he enters the name of the current legal
owners on the register as the registered
proprietor.
• Registrable transactions are registered against
each title document kept in the registry.
 REGISTRATION OF TITLE
• Save for overriding interests, all the material
particulars affecting the title of the land are fully
revealed merely by a perusal of the register.
• Registration of interest in land are guaranteed by
the state.
• Register is at all times the final authority and the
State accepts responsibility for validity of
transactions, which are affected by making an
entry in the register.
 REGISTRATION OF TITLE
• Certificates are evidence of disposition of
interest in land.
• Land certificates are issued for absolute
proprietorships and certificates of leases for
leaseholds.
• Register is a very important document as it is
the sole authoritative record wherein lies title
to all registered plans.
 REGISTRATION OF TITLE
• The register is kept at the land registries office (See
Legal Notice Number 277 of 2017)
• The register itself refers to the official record
containing details of one’s estates (freehold or
leasehold), particulars of the property and the
interests that affect the property
• The register can also be used in reference to the
entire index of many individual registers that
comprise the sum total of all titles relating to
registered land in the country.
 REGISTRATION OF TITLE
• The register is divided into 3 main sections:
• property section
• proprietorship section and
• the encumbrances section.
The property section contains:-
• a section of the registered property
• details of the date of first registration of the
land
 REGISTRATION OF TITLE
(iii) exemptions or other adverse interests to
which the property is subject.

The proprietorship section states:-

• the nature of the registered title, name and
address and other description of the
registered proprietor, any restraint if at all to
which the powers of disposition are subject.
 REGISTRATION OF TITLE
• The encumbrances sections gives:-
(i) particulars of subsisting burdens to which the
property is subject
(ii) any restrictions that are endorsed that have the
effect of preventing such dealings in the property as
maybe inconsistent with the restrictions imposed.
• LRA seeks to do away with the deed system of
registering land, and reinforces exclusively title
system of registration of land.
• Section 30 LRA certificate of title/lease.
 EFFECTS OF REGISTRATION.
• Vests absolute ownership of that land
together with all rights and privileges
appurtenant thereto;
• Leasehold interest together with all implied
and express rights and privileges.
• Indefeasibility of title subject to
encumbrances recognised under law.
• Trustee obligations.
 EFFECTS OF REGISTRATION
• Certificate of title/lease prima facie evidence
of ownership subject to encumbrances,
easements, restrictions and conditions
contained or endorsed in the certificate.
• Title may be challenged on the grounds of
fraud, misrepresentation or acquired illegally,
unprocedurally/ corrupt schemes.
• All registered lands subject to overriding
interests.(See s.24-26 of LRA)
 EFFECTS OF NON-REGISTRATION
• the general principle under property law is
that no interests or rights or estate in land can
be passed, effected or otherwise created by
way of an unregistered instrument where this
is a legal requirement.
• no burdens or covenants that adversely affect
the enjoyment of rights and interests in land
can be created by way of an unregistered
instrument.
 EFFECTS OF NON-REGISTRATION
• Failure to register a Document/instrument
which is compulsorily registrable shall render
it a contract interpartes (s.36 (2) LRA).
 EFFECT OF NON-REGISTRATION
Walsh and Lonsdale (1892) 21 CHD 9.
“a landlord contracted in writing to let a mill to a
tenant for 7 years. The parties agreed to
execute a formal deed of lease. At any time the
landlord could require the tenant to pay a year’s
rent in advance. The tenant had entered into
possession, paid rent quarterly in arrears but did
not execute a formal lease.
 EFFECT OF NON-REGISTRATION
The landlord demanded a year’s rent in advance, the tenant
refused to pay and the landlord attempted to distrain for it.
The tenant argued that he was merely a tenant from year to
year and that no lease had been executed and thus, he could
not be required to pay 12 months in advance. The tenant’s
contentions were rejected by the court which said that a
tenant in possession of premises under a specifically
enforceable contract for a lease is in the same position in
Equity as if a formal deed of lease had been executed and so
the landlord’s use of distress was lawful.”
 EFFECT OF NON-REGISTRATION
Bains & Chogley (1949) EACA 27
The issue here was that the landlord purported to lease
out certain premises for manufacturing purposes for a
period lasting 5 years through an unregistered
instrument and a dispute arose ending up in court. In
the opinion of the court the lease though not registered
was valid as a lease from year to year which does not
attract the requirement of compulsory registration and
was therefore subject to the provisions of the ITPA
(repealed) including that of giving 6 months notice
where there is desire to terminate the arrangement.
 EFFECT OF NON-REGISTRATION
CLARKE & SONDHI (1963) E.A. 17
The lessor purported to lease out certain premises to the lessee for a period of
3 years at an agreed annual rent which was to be paid in specified monthly
instalments. The lessee had possession of the premises and in the course of
time fell into rent arrears thereby forcing the Lessor to bring an action for
recovery of the same. In his defence the Lessee introduced or contended that
the Lessor had no valid cause of action owing to the fact that the lease was
not registered as was by law required under the provisions of the RTA
(repealed) and it was this position that on account of this fact that the entire
arrangement was void or unenforceable and that such an arrangement was
incapable of passing any legal estate in land. In the opinion of the court, the
unregistered lease could operate as a contract inter parties and consequently
the Lessee could not escape to pay any rents due.
 EFFECT OF NON-REGISTRATIO
SOUZA FIGURIDO & CO. LTD V. MOORINGS HOTEL LTD (1960) EACA 926
A landlord sought to recover rent arrears from a tenant on the basis of an unregistered
sub lease which was by law required to be registered. In his defence the tenant raised
the question of the validity of such an arrangement on account of non-registration. He
further contended that in view of the non-registration of the transaction that the same
was ineffectual to create any interests in land or any Estate therein and that in the
result any covenant to pay rent could not be enforced. Whereas the court of appeal
agreed with the tenants contention that no interests could be created by way of an
unregistered instrument and that no covenants could create liability if the instrument
was unregistered, the lease could nevertheless be regarded as having created a
contract inter parties which is enforceable as between the parties and therefore the
parties could not escape their respective obligations and duties including that of paying
rent.
 OVERRIDING INTERESTS
• These are interests usually not noted against
the title/register.
• Encumbrances, interests, rights and powers
not entered in the register but subject to
which registered disposition of land are by the
Act deemed to take effect.
• Demands an inquiry be conducted.
• See section 28 of LRA
 RECTIFICATION AND INDEMNITY
(i) Rectification by the Registrar.(s.79 LRA)
• Errors or omissions not materially affecting
the interests of any proprietor;
• With the consent of all parties;
• Incorrect dimension of the parcel. However
notice has to issue before rectification;
• Documents obtained by fraud;
• Change of name or address of the
proprietor;
 RECTIFICATION AND INDEMNITY
(ii) Rectification by the court
• Order for cancellation or amendment of any
registration if satisfied that it was obtained,
made or omitted by fraud or mistake.
• The register will not be rectified to affect the
title of a proprietor who is in possession and
had acquired land, lease or charge for valuable
consideration unless he had the knowledge of
the omission, fraud or mistake.
 RECTIFICATION & INDEMNITY
INDEMNITY
• Any person suffering damage by reason of
rectification of the register or error in a copy
of the register, document or plan certified
under the Act. (s81 LRA)
 TRANSACTIONS UNDER SECTIONAL
PROPERTIES ACT No.21 of 2020
• Sectional title: division of the building into units and
registration of sectional plans in respect of the units
(see the definition of sectional plan and person
responsible for the preparation of the same under
s.2 (on LRA) of the Land Laws (Amendment) Act No.
28 of 2016).
• LRA substantive law, sectional title issued under the
SPA (procedural law).
 TRANSACTIONS UNDER SECTIONAL
PROPERTIES ACT No.21 of 2020
• Upon registration of the sectional plan, the Registrar closes
the register of the parcel described in it and opens a
separate Register for each unit described in the Sectional
Plan.
• Registrar then issues the proprietor with a Title deed of
sectional title in respect of each unit.
• owners pay maintenance fee to the Corporation to enable
it carry out duties imposed on it by its by-laws; facilitates
insurance of the building, ensure the building complies
with statutory obligations, and upkeep of common
property e.g. grounds, lobbies, elevators and other
amenities.
TRANSACTIONS UNDER SECTIONAL
PROPERTIES ACT No.20 of 2020
• Students to discuss the salient legal issues in
the Sectional Property Act, No. 21 of 2020.
 SUB-LEASES
• Sub-leases/lease/under-lease -transfers
/conveyances
• Lessee assigning/conveying an interest in
land to a third party for a shorter term than
that he him holds.
 SUB-LEASES
• CHARACTERISTICS.
• Term less than that of the head lease.
• Management company registered under the
Companies Act:-
(i) Manage the property upon which the
sub-lease is created.
(ii) Acquisition of the reversionary interest.
 SUB-LEASES
(iii) Owners of the sub-leases entitled to
a share of the management
company. Entitles them to a
reversionary interest.
• The building/architectural or site plans will be
annexed to the sub-lease, and properly
marked
 SUB-LEASES
• a landowner holding freehold or leasehold interest from
the government may grant a sub-lease out of the leasehold
or freehold interest.
• May also be leased by third parties conveying some or all of
the leased property for a shorter term than that of the
head lease.
• Sub-leases may be sanctioned by the head lessor.
• Concept of sub-leases common with ownership of flats and
apartments.
• Owners of apartments constitute themselves into a
management company(owners being shareholders)
purposefully to manage the estate.
 SUB-LEASES
• Equal enjoyment of common amenities by
owners/shareholders.
• Management company mandated with purchasing
reversionary interest from the head lease to ensure that
upon the expiry of the sub-lease, the sub-lease can be
renewed in the name of the management company with
the shareholders continuing to own common areas.
• Management Company also collects a monthly service
charge from its shareholders to pay for land rates, water,
electricity, security, in the common areas and to maintain
the compound.
• S. 54 (5) & (6) LRA
 RESTRAINTS IN DISPOSITIONS IN
LAND
• Caveats/cautions-instruments preventing
dealings in land or an interest therein. S.70 of
LRA
• Inhibitions/prohibitions- court orders
preventing the dealing with land until certain
further orders are made by the court. S.68 of
LRA
 RESTRAINTS IN DISPOSITIONS IN
LAND
iii) Restrictions (S.76 LRA)- for prevention of
fraud, improper dealing or any sufficient
reasons. Largely lodged against the title at the
Land Registrar’s initiative.
 SERVITUDES
rights in alieno solo -rights conferring a power
over another person’s estate for the benefit of
the right holder or of his estate.
Common Law Conception of Servitudes
(i) Easements.
(ii) Profit a prendre.
(iii) Restrictive Covenant.
(iv) Encumbrances
 EASEMENTS & ANALOGOUS
RIGHTS
• It is an arrangement that allows an owner to
use the adjoining land for the benefit of his
land.
• A right attached to or annexed to a land
entitling an owner of a parcel to do something
on land that does not belong to him, or
prevents the owner, from doing something
that may adversely affect the adjoining land.
 EASEMENTS & ANALOGOUS
RIGHTS
KAMAU .VS. KAMAU (1984) 1 KLR
“An easement is a convenience to be exercised by one land owner
[here the respondent] over the land of a neighbour [here the
appellant] without participation in the profit of that other land.
The tenement to which it is attached is the dominant and the
other on which it is imposed is the servient tenement.
“How are they created? At common law only by deed or will.
Writing under hand or parol grant with or without valuable
consideration creates no legal estate or interest in land but only a
mere licence of personal to the licensor or licensee coupled with
an interest or grant if it needs the latter to give effect to the
common intention of the parties.”
 EASEMENTS & ANALOGOUS
RIGHTS
• ‘Once an easement is validly created, it is
annexed to the land so that the benefit of it
passes with the dominant tenement and the
burden of it passes with the servient
tenement to every person into whose
occupation these tenements respectively
come.’ (Kamau Case)
 EASEMENTS & ANALOGOUS
RIGHTS
• Right may be positive or negative-(Positive-if it
authorizes one to use another’s land in a
particular way, Negative-restricts one in the
use of his land.)
• Distinction between Easement and
Ownership-An easement permits one person
(A) to exercise rights over the land of another
(B), but it is B who retains ownership of the
land.
 EASEMENTS & ANALOGOUS
RIGHTS
• Distinction between Easement and License-a licensee
allows one to do something that would, without the
license, be trespass.
• Nature of Easements- rights capable of being created by an
easement; to do something over, under or upon the
servient land, not to do something over the land, require
the owner of servient land to do something over, under or
upon that land and to graze stock on the servient land.
• The rights do not include: carrying away anything from the
servient land and exclusive possession of any land.
 EASEMENTS & ANALOGOUS
RIGHTS
• Creation of Easements
Legal & Equitable Easements.

• Creation of Legal Easements

(a) By Statute- ss 136-148 of the Land Act, 2012, ss 28
and 98-100 of the Land Registration Act,2012 and s.
22 of the Water Act.
(b) By Prescription- s. 32 Limitation Actions Act
 EASEMENTS & ANALOGOUS
RIGHTS
• (Govindji & another v Sifa Insurance Company
Ltd[2003] eKLR)- ‘an easement of way over the
plaintiff’s plot could only be acquired if the
defendant had enjoyed access to that way
peacefully and openly as right and without
interruption for 20 years since the plaintiff
acquired the property.’
 EASEMENTS & ANALOGOUS
RIGHTS
Characteristics of an Easement
Ellenborough Park [1956] Ch 131, 163,
• There must be a dominant tenement and a servient
tenement
• The easement must accommodate the dominant
tenement
• The dominant and servient tenements must be
owned by different persons; and
• The easement must be capable of forming the
 EASEMENTS & ANALOGOUS
RIGHTS
(i) There must be a dominant tenement and a
servient tenement.
• Easements are rights which exist for the
benefit of one piece of land and are
exercised over another.
• there must be land that is benefited,
the dominant tenement, and land that
is burdened, the servient tenement.
 EASEMENTS & ANALOGOUS
RIGHTS
Alfred F Beckett Ltd v Lyons [1967] Ch 449, 483,
‘… an essential element of any easement that it is
annexed to land and that no person can possess an
easement otherwise than in respect of and in
amplification of his enjoyment of some estate or
interest in a piece of land.’
London & Blenheim Estates Ltd v Ladbroke Retail
Parks Ltd [1994] 1 WLR 31, 36. “it is trite law that
there can be no easement in gross”
 EASEMENTS & ANALOGOUS
RIGHTS
(ii) An easement must ‘accommodate’ the
dominant tenement.
• easement must confer a benefit on the land
as such, and not merely on the person who
currently own the land.
• An easement therefore benefits the owner of
the land in his or her capacity as owner of that
land, not personally.
 EASEMENTS & ANALOGOUS
RIGHTS
• courts have acknowledged the artificial nature
of the concept that the land can itself benefit
from the right( Stilwell v Blackman [1968] Ch
508, 524 to 525).
Guidelines.
• The servient tenement must be sufficiently
proximate i.e. near, to the dominant tenement
to be able to confer a benefit on it. Not
necessarily adjacent or sharing the border.
 EASEMENTS & ANALOGOUS
RIGHTS
• The alleged right must not confer a purely
personal advantage on the owner of the
dominant tenement.
“Hill v. Tupper (1863)”, the owner of a canal
granted the plaintiff the right to put pleasure
boats on the canal for profit, but this was held
to be a personal advantage as it was not
sufficiently connected with that land so as to
amount to an easement.
 EASEMENTS & ANALOGOUS
RIGHTS
• It is unlikely that a right which confers a purely
“recreational user”on the dominant tenement
will be accepted as an easement.
“Re Ellenborough Park”, a defined right to enjoy
an enclosed private park was an easement
because the park was created for the very
purpose of enhancing the utility of the few
private houses which had access to it.
 EASEMENTS & ANALOGOUS
RIGHTS
(iii)The dominant and servient tenements must
be owned by different people.
“a man cannot have an easement over his own
land” as was held in Roe v Siddons (1889) 22
QBD 224, 236; Metropolitan Railway Co v Fowler
[1892] 1 QB 165; Kilgour v Gaddes [1904] 1 KB
457 at 461.
 EASEMENTS & ANALOGOUS
RIGHTS
(iv) The right which the easement
purports to create must be capable of
forming the subject matter of a grant
• All easements are deemed to “lie in grant
either granted expressly, impliedly or by
prescription.
• Rationale-Re Ellenborough Park [1956] Ch
131, 175 to 176.
 EASEMENTS & ANALOGOUS
RIGHTS
• To avoid capricious and personal benefits
becoming easements.
• To promote clarity by demanding sufficient
specificity at the time of creation.
• To ensure some degree of connection with the
land in the same way as the “touch and
concern” requirement does in covenants.
 EASEMENTS & ANALOGOUS
RIGHTS
Extinguishment of Easements
• By Statute
• Exercise of statutory power of sale.
• By express release.
• By implied release/abandonment.
• On termination of the estate on which the
easement.
 EASEMENTS & ANALOGOUS
RIGHTS
• Access Order (s.140 of the LA).
• (ii) Public Right of way (s.143 LA).
• Wayleave
• Communal right of way
• Application for wayleave (s.144 LA)
• See also See s.138 of LA on nature of
easements, ss.98-99 of LRA on creation and
cancellation/extinguishment of easements.
• See Regulations 82-85 & Forms LRA 80-83
 PROFITS A PRENDRE
• a right to go on another person’s land, to take a
particular substance from that land whether it is the
soil or products of the soil. (e.g. sand, gravel, trees,
etc).
Types of Profits
(i) Profits appurtenant-annexed to an estate in the
dominant land and runs with the land.
• Such profits should comply with the characteristics
set out for easements in Re Ellenborough Park.
[1956]
 PROFITS A PRENDRE
(ii) Several or in common. (students to read)

(iii) Profits in gross (students to read)

TERMINATION OF PROFIT A PRENDRE
• Unity of seisin: involves acquisition of ownership or
the servient tenement by the owner of the profit at
which point the question of enjoying the profits
ceases
 PROFITS A PRENDRE
• Easements and other rights of servient
tenement for the benefit of a dominant
tenement are extinguished if both tenements
come into the same ownership).
• Release: Upon registration of an executed
release from, the registration of a profit is
cancelled.
• Alteration of the dominant tenement
 RESTRICTIVE COVENANTS
• A covenant affecting land is restrictive if it restricts
the doing of something to, on, over or under land or
in relation to an estate or interest in land.
• Restrictive covenant to be effective must meet
certain conditions.
(i) The intention of the parties that the benefit of the
covenant should be capable of passing with the land
to be benefited, must appear from the instrument
creating the covenant
 RESTRICTIVE COVENANTS
(ii)The covenant must have the object of
protecting land which, at the date of the
covenant belongs to, and after the date of the
covenant, is retained by, the covenantee.
(iii)At the dates of the covenant and of the
conveyance or assignment and at the date of
the breach complained of, the covenant must be
capable of protecting the land intended to be
protected; and
 RESTRICTIVE COVENANTS
(iv) The land intended to be protected must be
described by the instrument creating the
covenant so as to be ascertainable with
reasonable certainty.
(v) A restrictive covenant which forbids the
sale, mortgage or lease of land is void and
unenforceable.
 RESTRICTIVE COVENANTS
Creation of Restrictive Covenants
• As a general rule, a restrictive covenant or
agreement cannot be created by parol.
Tulk v Moxhay (1848).
• A restrictive covenant must be in a
prescribed form and becomes effective
when registered. Discriminative restrictive
covenants or agreements are void ab
initio.
 RESTRICTIVE COVENANTS
Intervention of Equity
• In equity, the burden of a restrictive covenant
could be enforced under the rule in Tulk v
Moxhay provided:
• It was the common intention of the parties
that the covenant should benefit the land of
the covenantee.
• The assignee of the covenantee must show
that the benefit of the covenant has passed to
him.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Mortgages and charges-borrowing transactions. (read about the historical
background of these transactions).
• Mortgage-the title to the property is the security.(the transfer of an
interest in specific immovable property for the purpose of securing the
payment of money advanced or to be advanced by way of loan, an existing
or future debt, or the performance of an engagement which may give rise
to a pecuniary liability. S.58 of ITPA (Repealed))
• English Mortgage- a mortgagor binds himself to repay the mortgage
money on a certain date and transfer the mortgaged property absolutely
to the mortgagee subject to a proviso that the mortgagee will re-transfer
that property to the mortgagee upon repayment of the mortgage money.
• Charge-mere appropriation of the property as security.(an interest in land
or a lease securing the payment of money or the money’s worth or the
fulfilment of a condition S.2 of LRA,
• Charge acts only as a security and not a transfer s. 56 LRA, s. 80 of the LA
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• CLASSIFICATION AND CREATION OF MORTGAGES AND CHARGES.
• Legal/Formal Charge-takes effect only when it is registered in a
prescribed register and a chargee shall only exercise any of the
remedies if the charge is registered. (S. 79 (5) LA)
• Equitable/informal/customary charge –created when a chargee
accepts a written and witnessed undertaking from a chargor to
charge the chargor’s land or interest in land with the repayment of
money obtained from the chargee .(S.79 (6) LA)
 The chargor deposits either certificate of title to the land or a
document of lease of land . (these documents are referred as ‘lien by
deposit of documents’) (S.79 (8) LA)
• The chargee can only take possession of or sell the land upon
obtaining a court order to that effect. (S. 79 (7) and (9) LA).
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• S.80 (3) LA-Every charge instrument shall
contain:-
(a) the terms and conditions of sale;
(b) an explanation of the consequences of
default; and
(c) the reliefs that the chargor is entitled to
including the right of sale.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Implied Covenants by the Chargor (s 88 of the LA)
• Order of priority of charges (S. 81 of the LA)
• Further advances/Tacking (S 82 LA),
A provision in the charge instrument to give further
advances or credit to the chargor on a current or
continuing account.
Can only rank in priority to any subsequent charge if
provision for further advances is noted in the
register in which the charge is registered or
subsequent chargee has consented in writing to the
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Right of consolidation- (S 83 LA),
• A chargee right to consolidate charges to be
set out in the charge instrument and recorded
in the register or registers against all the
charges so consolidated that are registered.
• Right to Discharge the charge- upon full
payment of the loan amount. See s.85 LA
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
EQUITY OF REDEMPTION
• Mortgagor/chargor’s right to redeem the
security on, before or after the legal or
contractual date of redemption.
• At common law an event of default led to
transfer becoming absolute (mortgages were
conditional transfers).
• Equity recognized that the charge was a mere
security and not a transfer.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Chargor’s equity of redemption cannot be
clogged, fettered, limited, postponed or
excluded.
• right of redemption subsists until the transfer
is registered.
• See alsos. 89 of the Land Act.
• Krelinger .v. new Patagonia Meat and Cold
Storage Co (1914)AC 25.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Fairclough .v. Swan Bakery Co. Ltd 1(1912) AC
565.
• Samuel .v. Jarah Timber & Wood Paving
Corporation Ltd (1904)AC 323
• Industrial and Commercial Development
Corporation .v. Kariuki & Anor(1977) KLR 52.
• Saleh .v. Eljofry (1950)24 KLR.
• Nookes .v. Rice (1902) AC 24.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
REMEDIES OF A CHARGE
(i) Action for Money (s.91 LA).
• Chargee to sue for the money secured by the
charge only if—
(a) Chargor is personally bound to repay the
money;
(b) The security is rendered insufficient (not by
chargee or chargor‘s fault) and chargee has
given chargor opportunity to provide additional
security.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
(c) The chargee is deprived of the whole or
part of the security through a wrongful act
or default of the chargor.
• This remedy should only be pursued if the
chargee has pursued other remedies relating
to charged land unless the chargee agrees to
discharge the charge.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
(2) Appointment of Receiver.(s.92 LA)
• Power to appoint a receiver of the income of
the charged land. (Implied condition in every
charge).
• Serve a thirty (30) day notice on the chargor
prior to the appointment of the Receiver.
• To be appointed in writing and the Receiver to
sign the instrument of appointment.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Receiver is the agent of the Chargor-be solely
responsible for the acts and defaults of the
receiver.
• Power to demand and recover all the income
of which the receiver is appointed, by action
or otherwise, in the name of the chargor, and
to give effectual receipts for the same.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• the receiver‘s costs are recovered from the
assets of the chargor-not more that 5% of
money received.
• priority of payment of money received by
receiver under S.90(8) LA
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
(3) Leasing (s.93LA)
• Lease can only be granted after expiry of 30
days notice.
• To take effect in possession not later than 6
months after its date.
• Reserve the best rent
• Not more that 15 years or length on term of
charge whichever is shorter
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• Contain reasonable terms and conditions
having the interests of the chargor.

• Contain a declaration of appointment of

receiver by chargee.
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
(4) POSSESSION (S.94 LA).
• Upon expiry of notice issued under section 90(2)(b)
and (c), a chargee serves the chargor a one (1)
month’s notice of intention to enter, into possession
of the whole or a part of the charged land.
• A chargee may exercise the power of entry
peaceably or by use of reasonable force.
• Subject to a court order.
• Withdrawal of lender from possession (s.95 LA).
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
(5). Chargee’s Power of Sale.
• S.96 (1) LA.
• The power exercised in case the chargor’s in default
of the obligations under a charge and remains in
default at the expiry of the notice served under
section 90(1) LA.
• Before the chargee exercises the statutory power of
Sale, the chargee to serve the chargor a Forty (40)
days notice to sell. (S.96 (2) LA).
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
NB: Read the following sections of the Land Act.
• S.99. Protection of purchaser
• S.100. Purchase by chargee
• S.101. Application of proceeds of sale of
charged land.
• S.102. Right of chargor to discharge charge on
payment of any sum due any time before
sale.(see also s. 85 LA)
 THE TRANSACTIONS IN
MORTGAGES & CHARGES
• S. 103. Application for relief by chargor.
• S. 104. Power of the court in respect of
remedies and reliefs.
• S. 105. Power of the court to re-open
certain charges and revise terms.
(Matrimonial home).
• S.106. Exercise of power to re-open certain
charges.
 CONSTRUCTION OF
CONVEYANCING DOCUMENTS
• Rules of Construction (Assignment)
• The Ejusdem Generis rule
• The Golden rule
• Falsa demonstration non nocet
• The testatum
• The habendum
• The testamonium/jurat
 REMEDIES
• Reliefs/remedies for breach of contracts in
sale of land see ss. 39-42 of the Land Act.

• N/B: Parties cannot contract to oust provisions

of ss. 40-Damages for breach of contract, and
42-Relief against rescission of contract for the
sale of land.
 REFORMS IN CONVEYANCING
• Electronic Conveyancing
• See Relevant provisions under the Land
Registration Act, Kenya Information and
Communication Act.
• Part XIII of Legal Notice No 278 (Land
Registration(General) Regulations), 2017.
• Legal Notice No. 277 of 2017
 Remedies in Conveyancing
• Read the LSK Conditions of sale 2015. Discuss
the remedies provided thereunder.
• Section 39-42 of the Land Act.
 Construction of Conveyancing
Documents.
• Rules of Construction;
• The Ejusdem Generis Rule;
• Testatum
• The habendum
• The testamonium/ jurat