Legal Process For Buying Land in Kenya

1.0 Conducting a Search at Ministry of Lands

Search with the Ministry of Lands at district or county headquarters to ascertain the true land owners and establish the presence of brokers and if the title has been charged or has a caveat, for instance, when it has been used to secure a loan, or there is a court order barring any transaction on the land.

A search costs Ksh 1000 and should be ready within a few days. A valid search should be no more than six months old.

2.0 Payment of Land rates

Visit the Local Council (municipal or county) to confirm any unpaid land rates which you will need to factor in when deciding the purchase price. Cost varies from county to county. In Nairobi, you will be required to have a certificate of clearance from the Nairobi City County, which costs Ksh7,500 and should be ready normally within two hours.

If there are prevailing unpaid land rates you would need to agree with the seller on who will settle them as the land cannot be sold (transferred) with outstanding land rates.

3.0 Land Map/Survey

Visit the local surveyor and purchase maps of the place, normally two, one drawn to scale (informally known as tracing or mutation) and another showing the neighboring farms, costing Ksh300 per map. You can buy these at the Lands Ministry but a surveyor is better and faster.

4.0 Verification of the Land

Armed with the map, the surveyor and the seller visit the land on the ground. Have a tape measure to confirm the dimension from the map drawn to scale. Make sure you see the beacons or replace the lost ones. Surveyors charge about Ksh1,000 per beacon. Make sure the bordering neighbors are in agreement with the boundaries.

5.0 Drafting a Land sale Agreement 

The law requires any land transaction to be in writing. It is very advisable to have a lawyer (though not a must). According to the tariff provided by the Law Society of Kenya, the lawyer should charge Ksh3000 if the land cost is Ksh1,000,000 and below and Ksh8,000 if the land value is above Ksh 1,000,000. A lawyer’s cost is normally shared equally between buyer and seller or as agreed between the parties.

Ensure that the spouse to the seller is present at this stage or at least the spouse is aware and agrees with the transaction to avoid later complications.

6.0 Post Agreement Transaction

According to the agreement, you may be pay in cash or installment. Ensure by the time you make the initial payment the title deed and other legal documents are in the custody of the lawyers. This is because the seller still owns the piece of land and may involve other transactions using the title deed, which may harm you financially.

7.0 Land Control Board

Book the Land Control Board (LCB) meeting. The LCB is a forum made of the Assistant County Commissioners (Previously called DOs) and the local village elders which meets once a month. They are the ones who give the final consent for the land to be sold. Their role is to protect the seller from self-destruction e.g. where a man is selling land without wife’s knowledge and they don’t have anywhere else to go or the land being sold is clan/community land. LCB costs Ksh1000.

However, there is a special Land Control Bond (SCLB), which involves only the Assistant County Commissioner and the two transacting parties instead of waiting for the main LCB that meets once per month. SCLB costs Ksh5,000 and may take two hours depending on the availability of the Assistant County Commissioner.

8.0 Land Transfer Process 

After all payments, the seller signs Land Transfer Forms which together with Consent from LCB, land search, clearance from county/ municipal council, passport photos, KRA PIN, agreement and old title deed are taken to the Ministry of Lands to change ownership. It costs Ksh5,000 to process new title which should be ready within two weeks.

9.0 Stamp Duty and Transfer Fees

You will need to pay stamp duty based on the value of land, i.e four percent for municipalities and two percent for reserves.

10.0Conclusion

After one week, the buyer should do another search with the Ministry of Lands to confirm that the land now reads his/her details.

Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional: The Case of Susan Bithe Matuku, FIDA Kenya Vs. The Hon. Attorney General (Judgment) (Constitutional Petition No. 21 of 2021)

Court's Holding:

On 19th October 2022, the High Court, sitting in Eldoret in the above-cited case declared that Section 73 (2) (a) of the Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional.

Conclusion and Analysis:

What is the essence of this Judgment?

A void marriage does not have any legal effect to the parties to the marriage and they cannot enjoy the rights under Article 43 of the Constitution.
Any party who finds out the factors that renders the marriage void, has a right to get a decree for annulment of the marriage at the time that the discovery was made.

 

The violation of fundamental rights and subsequent deprivation of the right to equality in Article 27, Freedom of Conscience in Article 32 and access to courts in Article 48 of the Constitution of Kenya.
Parties should not be forced/made to remain in marriages or dissolve a marriage that was based on misrepresentation and fraud as it is a further violation of their rights.


WHAT IS THE IMPLICATION OF SUCH A JUDGMENT ON PARTIES THAT HAVE BEEN MARRIED BEYOND 1 YEAR?

The expansion for the period within which one can apply for the annulment of the marriage raises questions on how to handle a matter where there has been longevity and investment in the course of the marriage e.g. acquisition of marital assets and liabilities.

The courts would need to grapple with whether they can be considered marital assets and liabilities if the marriage that was the foundation for such investments and commitments has been declared as one that was never in existence.

This calls for a lot of thought for parties that may be considering annulling their marriages. Is recognition of the marriage and dissolution of the same better than a declaration that the marriage never existed? It is important to consult with your advocate when making this decision.

MBOGO v SHAH (1968) EA: A Case of Constitutional Law

 

Mbogo v. Shah marks the highest court's interpretation of the 1978 Constitution. It also illustrates the role of courts in protecting the rights of citizens. The case concerned a dispute concerning the powers of a local council. In its judgment, the court reinforced the need for laws to be proportionate to protect public health and safety as well as private property. The case also highlighted that courts have a responsibility to interpret laws in favor of the people they affect.

The plaintiff in this case was a farmer who lived in Mbogo village in western Kenya. On his farm, the plaintiff possessed two water wells that he used to grow vegetables. In 1966, the local council constructed a water well on its parcel of land without obtaining the necessary approvals or permits. When this unauthorized well began to displace the plaintiff's supply, he brought an action against the local council and won his case in court. However, when the plaintiff attempted to secure payment from the council, he found that he lacked legal standing to do so under English common law.

After this victory, Mbogo brought another action against Shah before the High Court of Kenya. As part of his argument, Mbogo presented a statute- which stated that 'all laws must be just and practicable' and must not restrict civil liberties. Additionally, he cited a research paper from Professor Githongo to support his claim that laws should be proportional. Both arguments supported his position that his unauthorized well had adversely affected his well's productivity. Therefore, he believed that further depletion of his well was imminent if no action was taken by government officials.

While discussing these points with Shah at an interview session, Mbogo realized that he had not adequately clarified his position regarding consultation with the public and laws proportionate to protection of civil liberties. According to Professor Githongo, any law that impinges on citizen rights should be discussed with citizens before it is passed by parliament. Therefore, before passing new laws, parliament should first consult with the people and receive their input on proposed legislation. In addition, all government actions should respect and protect citizen rights against encroachment by corporations or other private entities.

During this same interview session, Shah outlined some legal principles he believed were relevant to this case. First, in every constitutional democracy under God , parliament is supreme in enacting laws for implementation within its jurisdiction. Since Mbogo lived in western Kenya where local councils are responsible for distributing water among villages, Shah believed that council authorities were accountable to parliament under both local and national law. Since Shah served as deputy mayor of Kakispell town council from 1993 to 1997, he was presumably familiar with Kakispellian law and procedures for submitting proposed legislation.

Based on these legal considerations, Mbogo made three key arguments in his final written submission to the court. He first argued that government officials must consult with citizens before passing any new laws that may adversely affect them. Second, since no consultation occurred concerning water development on council land without proper permits, Mbogo argued that this lack of consultation should impact Shah's ability to hold office as deputy mayor of Kakispell town council. In addition, since no consultation occurred concerning corporate encroachment on agricultural land without proper permits, Mbogo argued that Shah's actions should also be investigated under criminal law by national and international agencies against corporate agitators promoting unsuitable food products for human consumption or animal feeding purposes .

Although Mbogo prevailed on all points at trial and won his suit against Shah - due to section 15(3) - both men now hold different views regarding legislative consultation with citizens and protection of citizen rights against corporate encroachment . To that end - as well as resolving future disputes - both government officials and private citizens should keep these principles in mind whenever governmental or corporate action adversely affects citizen rights .

Buying and Selling Land in Kenya

 

Land in Africa is a scarce resource; it's one of the main reasons that most countries in the continent are developing slowly. Many people buy and sell land in Kenya to make money. They do this through government land acquisition and by selling land to foreigners. This is because land ownership is a valuable asset in Kenya.

The government encourages land acquisition for businesses and government facilities. For that reason, they offer incentives to landowners when they sell their property- such as cash grants or free housing. This makes it easy to purchase land, and it encourages people to sell to the government rather than private buyers. However, not everyone profits from government land acquisition programs; there are many laws and regulations, and only a few people know how to navigate the process successfully. This means that some people who want to profit from buying and selling land end up losing money.

Buying and selling land is easy and takes little time or money. Landowners can easily list their property for sale on websites like Kijiji, which is a free listing advertising service in Canada. They can also post signs on their property informing neighbors and strangers of the opportunity to buy their land. That way, anyone with enough interest can easily find a buyer for their property- even if they're not looking to sell their property at all.

There are many ways to buy land other than through a seller's market. For example, you can buy directly from an African in Kenya or from an African living in Kenya. This is how wealthy Africans acquire large plots of government-subsidized land for little cost and no laws getting in the way. There's also direct negotiation with landowners- a bold but fair way to acquire land without advertising or intermediaries getting in your way. Landowners will usually give you the lowest price possible if you're willing to travel far from the nearest town to negotiate with them directly. You could also buy through syndicates- groups of investors who work together to buy up properties for profit.

Land is one of the most valuable resources in Kenya since it's scarce and can be used for business or financial gain. The government encourages landowners to sell their properties to acquire more for business purposes, which increases the value of purchased land. Buying and selling land is easy and takes little time or money- it's just a matter of finding a willing seller or negotiating with landowners directly. Anyone can profit from buying and selling Kenyans' land- as long as there's willing sellers and interested buyers, there's no excuse for inaction!

Legal Review: Insurances and the various forms

Insurance is a mechanism through which persons transfer risk(s) to insurance companies at a fee called premium. The insurance companies in return promise to pay for the insured loss should it occur.

The Insurance Regulatory Authority (IRA) is Government institution responsible for the regulation of the insurance industry in Kenya. IRA does not, therefore, sell insurance products.

There are two forms of insurance namely life (long term) and general (short term). Life insurance are contracts for more than one year while general insurance contracts are for one year or less.

Failure to pay insurance premiums as stipulated in the policy amounts to breach of policy terms and conditions and leads to the termination of the contract.

If you have a life insurance policy and the insurance company is closed down, your policy remains valid and you should continue paying policy premiums throughout the remaining term of the policy. Failure to continue paying premiums leads to termination of the policy by the insurance company. You have the right to claim under the policy immediately the policy matures

To make an insurance claim, You will need to report any loss or damage to the insurance company in time and ensure that you submit all the necessary documents requested by your insurance company. You are required to co-operate with the insurance company to facilitate the smooth handling of the claim.

In the event of a dispute between you and your insurance company you can contact IRA.

N/B- Motor Vehicle Comprehensive policy only protects damage or loss to the motor vehicle and any claim made by the third parties. As such the policy does not pay any claim for loss or damage made by the policyholder. Policyholders are therefore advised to buy separate insurance to protect them against losses arising from the use of the vehicle.

TO BE CONTINUED...