How to Register of Caution Application on the Ardhisasa Platform

1. A caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice. This application is initiated by an advocate on behalf of the applicant. In this article we will guide you on step by step on registration of caution application.

2. Log in enter your Ardhisasa ID or national ID number and password. Click on Continue. A one-time password (OTP) will be sent to the phone number associated with your Ardhisasa account. Enter the OTP in the provided box and click on "Login." You will be redirected to the dashboard.

3. On the dashboard, you will find various services listed under different departments in the Ministry of Lands and Physical Planning. By default, you are logged in with your private account.

To initiate the caution application process, switch to your advocate account. Click on the profile icon, and a dropdown menu will appear. Select the professional account that has been approved for you as an advocate.

4. Navigate to the Land Registrationsection and click on View More. Under the land registration section, you will find several services. Locate the Caution option and click on it. This refers to the registration of a caution. You will be directed to the applications page, where various tabs are provided.

5. On the applications page, you will see five tabs: Pending, Ongoing, Completed, Rejected, and Cancelled. Each tab represents the different stages of your caution application. The Pending tab lists the applications you have initiated but have not completed, requiring action from you or the involved parties. The Ongoing tab displays completed applications awaiting processing by ministry officials. The Approved tab shows applications that have been validated by ministry officials. The Rejected tab lists applications that were rejected, with reasons communicated to the applicant. The Cancelled tab is for applications that have been cancelled by parties involved.

6. Click on the New Application button. This will navigate you to a page with frequently asked questions (FAQs) specific to the caution application. Explore the FAQs to gain a better understanding of the application requirements and process. Once satisfied, click on Next to proceed.

7. In the proprietorship Details section, enter the parcel number in the format registry/block/parcel number. Fill in the proprietor's details, including identification type (ID or passport number), name, contact number, and identification number. Click on add to automatically populate and display the entered details on the right side. Use the Remove button to correct any entered details if needed. Once the details are correct, click on Next.

8. In the caution details section, select the extent or scope of the caution. It can be either Subject to the Interest of the caution or Absolute. The Subject to the Interest of thecaution to prevent another person from compromising the sale interest, while the Absolute forbids all dealings with the specified parcel. Enter the interest claimed, such as a purchaser's interest, and click on Add. The interest claimed will be displayed on the right.


9. Enter the Ardhisasa ID of the cautioner and search for it. Select the category of person executing as the cautioner (either the cautioner themselves or an attorney). If choosing the attorney option, enter the power of attorney entry number. Save the details and proceed.

10. Enter any additional details relevant to the caution application. If applicable, provide the details of the law firm you are acting under. You can either tie the application to a registered law firm on the Ardhisasa platform or manually enter the law firm details.

11. Upload supporting documents for the caution application, such as a sale agreement. Ensure the documents are in PDF, PNG, or JPEG format. Enter the document name and choose the file to upload from your device. Review the submitted documents and click Next to proceed.

12. Carefully review all the details provided in the confirmation step. If everything is accurate, click Submit to proceed with the application. You can go back to make any necessary edits if required. Upon submission, a confirmation message will appear, and both the cautioner and advocate will receive notifications via SMS and email.

13. Once submitted, the cautioner will receive a notification to verify the application and append their signature. The advocate will also need to accept or reject the representation request during this stage.

Both the advocate and the cautioner will receive a confirmation message that the application has been successfully submitted. If the caution application is approved, an entry will be made on the register, indicating the relevant details. All parties involved will be notified about the placement of the caution on the specified parcel of land.

The Law on Transferring land Inter vivos in Kenya

Introduction

Inter vivos is a Latin term that refers to when one transfers a gift to another person during their lifetime. For this type of a gift to be valid, it must be between two living persons, be capable of delivery, donative intent and acceptance have to be proved.

A gift can be defined as the transfer of an existing movable or immovable property made voluntarily and without consideration, by one person (the donor) to another (the donee) and accepted by or on behalf of the donee.

Such acceptance must be made during the lifetime of the donor that is while they are still capable of giving. If the donee passes on before acceptance, the gift becomes void.

What does the law require with respect to a gift inter vivos?

In her decision, Nyamweya J. in Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR stated that:

“In law, gifts are of two types, there are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:

… for gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid.”

Is Stamp Duty payable on gifts inter vivos?

Clause 52 of the Stamp Duty Act Cap 480 states that any conveyance or transfer operating as a voluntary disposition inter vivos shall be chargeable stamp duty as if it were a conveyance or transfer on sale.

However, Stamp Duty is not payable if:

a) the conveyance or transfer is in favor of any body of persons incorporated by special Act and that body is by its Act precluded from dividing any profit amongst its members and the property conveyed is to be held for the purposes of an open space or for the purposes of its preservation for the benefit of the Republic of Kenya; or

b) any body of persons established for charitable purposes only or the trustees of a trust so established.

Understanding Corporations under the Sectional Property Act, 2020

The transition from a Management Company to a Corporation.

The management company undertaking the above conversion shall transfer all assets and liabilities to the corporation as soon as the conversion process is complete and in any case within one year from the date of registration of the corporation. 

These transfers will be done based on the laws governing the ownership of those assets and liabilities. The management company will then be wound up as per the Companies Act and Regulations.

A corporation is established on the registration of the sectional plan.

A management corporation is therefore a legal entity that manages common areas and units in a sectional property development. The corporation is made up of the owners of the units in the development. 

How is a management corporation formed?

• A surveyor prepares a sectional plan for the development 
• The sectional plan is registered with the Registrar of Titles 
• The Registrar forms a corporation made up of the unit owners 

What does the corporation do? 

• Maintains and insures common areas
• Enforces the terms and conditions of the development
• Manages the administrative fund
• Handles estate disputes
• Resolves disputes through an internal committee
• Evicts tenants
• Imposes charges on units for unpaid service fees

How is the corporation run? 

• A board of management runs the corporation
• Members vote in proportion to the units they own
• The board convenes annual meetings
• The corporation has a common seal and perpetual succession

How is the corporation regulated? 

• The corporation is regulated by the Sectional Properties Act and the Regulations

 

Frequently Asked Questions: In Sectional Properties, is security deposit different from the service charge ?

 Yes, under sectional properties, a "security deposit" is typically considered a separate charge from a "service charge," with the security deposit acting as a refundable upfront payment to cover potential damages, while the service charge is an ongoing fee used to maintain and operate shared common areas within the development.

Key points to remember:

Security Deposit:

• Paid upfront by the unit owner when they move in.
• Usually refundable when the unit is vacated, provided no damage is found.
• Intended to safeguard the property owner against potential damage caused by the tenant.

Service Charge:

• Regular monthly or annual fee paid by all unit owners.
• Covers costs associated with maintaining common areas like landscaping, building maintenance, security services, utilities for shared spaces, etc.
• The amount of the service charge is usually calculated based on the unit's share of the overall property value.

REVIEW: CIVIL MARRIAGES IN KENYA

Introduction

This type of marriage is officiated by the registrar of marriages in a place determined by the registrar usually at the Attorney general’s office. (One woman- one man situation)

 

Individuals that intend to marry under this kind of marriage are required to give the registrar and the in charge of the venue where they intend to officiate their marriage a written notice of not less than 21 days and get married within 90 days from the date of that notice.

 

Couples situated in Nairobi can apply online for marriage services on the e-citizen platform, Online Marriage Services is only for Nairobi County. You can register your marriage at your local District / Sub County Commissioner’s Office; You can also register your Marriage at your local Registrar of Marriages in Nakuru, Eldoret, Kisumu, Malindi, Embu, Meru, Kisii, and Machakos.

 

The requirements of a civil marriage for citizens or refuges of Kenya

Before you fill in the online application form found at https://www.e-citizen.go.ke or apply at your local registrar of marriages, ensure that you have the following documents ready for attaching:

 

• Copy of National Identity Card or valid Passport or valid Alien Card for Refugees;
• Copy of birth certificate; (ensure that the names appearing on the birth certificate and the national identity card/ passport are properly aligned- names should be the same and appear in the correct order);
• One coloured passport-size photo for each Applicant;
• Copy of Death Certificate (if widow or widower);
• Copy of Divorce Decree Absolute (If the partner had been married before and is divorced);
• A sworn affidavit to confirm marital status in the event the Divorce Decree or the Death Certificate is more than 2 years old;
• Copies of Identity Card or Valid Passport for the two (2) witnesses.

The applicant shall be required to pay a notice fee on the online platform upon approval of their application.

 

After lapse of 21 days’ Notice period, parties are required to book an appointment on the online platform to appear for interview and verification of original documents. If there are objections and registrar find it their solid grounds, he shall cancel the notice of marriage to hear and determine the objections. The hearing takes place within 7 days. If there no objections the couple shall be issued with the certificate of no impediment

 

Upon successful completion of the interview, parties will be required to pay a fee on the online platform after which they will be booked for solemnization of the marriage – 30 to 90 days (30 days for notice and processing, marriage to be solemnized within 90 days).