Sale Agreement and Its Salient Features

 IMPORTANCE OF SALE AGREEMENT

The agreement acts to protect both of the purchaser and seller’s interests and to ensure that both get what they rightfully deserve without getting duped. The sales agreement fully protects the rights and interests of the buyer and the seller because if one party fails to adhere to the contract the other party can take legal action to recover the damages caused.

The sales agreement is filled in triplicate one for the vendor, one for the purchaser, one for the lawyer/ legal advisor overseeing the transaction.

Having a sale agreement also conforms to The Law of Contract that provides for written agreements in disposition of land hence it ensures legal compliance and validity to bind the parties.

It ensures enforceability in the event of fraud, default in payment, breach of terms among other reasons for failure of an agreement. Without having a written sale agreement it would be difficult to prove to the court that an agreement regarding the sale of land existed or took place.

CONTENTS TO INCLUDE IN A SALE AGREEMENT

A sale agreement unlike any other contract must provide the following to be valid:

• The contract must provide that the vendor is vested with capacity to sell as the beneficial owner of the property;
• The price at which the property is sold at is very important and must be stated;
• The deposit payable at the signing of the contract i.e. 10% of the purchase price for most contracts;
• In some contracts the deposit payable may be higher i.e. 20% or more;
• That the deposit will be held by the vendor’s advocate pending completion as a stakeholder pending completion;
• The contract completion date i.e. when the completion documents change hands vis a vis payment of the balance of the purchase price;
• The contract completion clause may also stipulate how the balance of the purchase sum will paid. Is it by banker’s cheque or by means of professional undertaking by the purchaser’s financiers directed at the vendor’s advocates;
• If interest is payable on the balance of the purchase sum should there be delay in completion and the rate of such interest this should also be stipulated in the contract;
• The rate of interest should be specified;
• The conditions of sale must be included. Most contracts for the sale of land in Kenya are subject to the Law Society Conditions of Sale (1989) Edition so long as the conditions do not contradict the terms of the contract. Alternatively if necessary the conditions may be varied accordingly to be in conformity with the terms of the contract.

A land sale agreement should include but not limited to:

• Identity of both the buyer and the purchaser. This will include full names, Identity card number, phone numbers, and the address code. In most cases, these are also the details to be included in the title deed after the transfer
• The cost of purchase, this defines the agreed amount to be paid, how it is to be paid (Instalment/cash), and when the amount is to be paid.
• The description of the property being sold. This will include the size of the land, the title number, where the land is located, and the condition of the land.
• Distribution of costs involved. This define who pays for the different cost involved in the process of transferring the land to the purchaser from the vendor. Some of the common costs will include stamp duty, legal fees, and title transfer costs.
• The obligation of each party involved in the transaction. This will help outline all that is to be done by both the purchaser and the vendor.
• Remedies for breach of the contract. To help ensure that the interest of each party is protected a sale agreement will also outline how non-performance of the agreed terms of the agreement are to be handled.

COMMON CLAUSES TO INCLUDE IN SALE AGREEMENTS IN KENYA INCLUDE:

• Date and Parties to the contract
• Recital of the property
• Definitions and Interpretation
• Law Society Conditions of Sale 1989 (General Conditions)
• Agreement for Sale and interest sold
• Purchase Price and Deposit
• Interest on late payment
• Completion
• Encumbrance
• Special Condition(s)
• Capacity
• Possession and Movables
• Matters affecting the Property
• Outgoings and Income of the property
• Warranty
• Survival
• Time is of the essence
• Assignment
• Default
• Non-merger
• Stamp duty and related costs
• Disclaimer
• Guarantee of title
• Arbitration
• Termination
• Legal and other costs
• General
• Intention to be bound
• Schedules
• Execution

UNDERSTANDING PERSONAL INJURY CLAIMS IN KENYA

 Introduction

If you suffer injury in an accident caused by someone else’s negligence (carelessness) you may want to seek recompense from them. You will therefore bring a personal injury claim against them.
Personal injury claims aim to make the party who caused the accident and your injury, pay you compensation for the harm they have caused you.

Types of Claims

These claims include;
🚑Road Traffic Accident Claims
📝Accident at Work Claims
🚳Accidents in Public Places
⚕️Clinical (Medical) Negligence

A claim for personal injury will include:
✒️A claim for the pain of the injury itself,
✒️The suffering it causes and
✒️The manner in which it affects your day-to-day life.

- Calculating the Personal Injury Claim -
The claim for compensation may be settled in or out of court to decide who was at fault and/or how much compensation you will receive.

A Kenyan Lawyer (personal injury lawyer) can help you get the most out of your injury claim or lawsuit;

If your accident left you with any of the conditions below, you should definitely seek professional legal representation.

👉🏾Pain and Suffering
👉🏾Temporary Disability
👉🏾Permanent Disability
👉🏾Severe Injury

Disclaimer: This is a guide for general informational purposes only and does not constitute legal advice.

Annulment of Marriage and its legal grounds

 Definition of an Annulment

An annulment is a declaration by a court that a marriage was never validly established, that is, the marriage never occurred or existed in the first place. This can be because the parties, at the time of making the union, lacked the capacity to do so.

It can also be described as a court decree that a marriage is null and void and has been since the marriage was celebrated. A marriage shall be annulled within one year of the marriage and the Petitioner must show they were ignorant of the facts necessitating the annulment and further the parties must not have consummated their marriage.

Notably, the annulment and dissolution of a marriage (or divorce) are fundamentally different. An annulment renders a marriage invalid from the beginning while the dissolution of a marriage terminates the marriage as of the date of the judgment of dissolution.  

The Grounds for an Annulment

Section 73 (1) of the Marriage Act, 2014 provides that a party to a marriage may petition the court to annul the marriage on any of the following grounds: -

1.      The marriage has not been consummated since its celebration

2.      In the case of a monogamous marriage (Civil and Christian marriages), at the time of the marriage, one of the parties was married to another person

3.      The petitioner’s consent was not freely given

4.      A party to the marriage was absent at the time of the celebration of the marriage

5.      At the time of the marriage and without the knowledge of the husband, the wife is pregnant and the husband is not responsible for the pregnancy; or at the time of the marriage and without the knowledge of the petitioner, the other party suffer recurrent bouts of insanity 

6.      At the time of the marriage, and without the knowledge of either party, the parties were in a prohibited relationship

7.      At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

Further Section 73 (2) of the Marriage Act 2014 restricted the filing of such application to before the lapse of one year from the date of marriage. Accordingly, annulments have been a preserve of marriages under 1 year despite the existence of legitimate grounds to have the marriage annulled.

Analysis of Prohibited relationships

What are these prohibited relationships that can warrant the annulment of a marriage? According to Section 10 of the Marriage Act, these are relationships where a person has married:

1.  

1. Their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew
2. The grandparent, parent, child or grandchild of their spouse or former spouse
3. A person whom they have adopted or who has adopted them
4. Any other person where such marriages are prohibited under customary law
5. A person with whom they have a half-blood relationship with

 

However, if a person marries their cousin, that marriage is not a prohibited relationship if they profess the Islamic faith.

The Process of Annulment

In Kenya, a party seeking an annulment of their marriage must file a petition for annulment in the Chief Magistrate’s Court. The other spouse may respond, if they wish, by filing an Answer to Petition. The case will be set for hearing when the Petitioner will have to testify. 

Afterwards, the magistrate will issue a judgment. If the magistrate is satisfied that the marriage should be annulled, they will issue a decree of annulment and provide for a period of usually 30 days before the decree of annulment can be made absolute. If no one challenges the annulment within the 30–day period, the decree of annulment will be made absolute and a certificate of making the decree of annulment absolute will be issued. 

Requirements for a court to grant an annulment

A court will only grant an annulment if the following conditions are met:

1.  It has not been more than one year since the celebration of the marriage,
2.   The Petitioner was not aware that their spouse was in a prohibited relationship or they were already married to someone else, if they are relying on those grounds, and
3.   The marriage has not been consummated since the petition was made to the court

Effects of an annulment

The parties to a marriage which has been annulled by the decree absolute of the court shall be deemed never to have been married.

Difference between an annulment of marriage and a divorce

A divorce recognizes that a valid marriage existed but the same is dissolved/ terminated in law due to various challenges faced by the parties in the marriage. An annulment on the other hand means that in the eyes of the law, the marriage never took place or existed.

DISTINCTION BETWEEN DIVORCE AND ANNULMENT OF MARRIAGES

Many people fail to distinguish between divorce and annulment of marriage. 

Thus, annulment proceedings are brought to challenge the validity of a marriage as opposed to divorce proceedings which presume a valid marriage that is now subject to dissolution. 

Therefore, in annulment proceedings, once a court gives an order annulling the marriage, the court simply says that the marriage did not exist in the first place.

 

Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

 

(a) Where the marriage has not been consummated since celebration.

 

(b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

 

(c) In the case of monogamous marriages, one of the parties was married to another person.

 

(d) The Petitioner’s consent was not freely given

 

(e) A party to the marriage was absent at the time of celebration of the marriage.

 

(f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

 

(g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

 

A petition for annulment of marriage can only be filed within 1 year of marriage.

LEGAL REVIEW: THE GROUNDS AND PROCESS OF DIVORCE IN KENYA

INTRODUCTION

In Kenya, the divorce process in Kenya is governed by Marriage Act No. 4 of 2014., which provides specific grounds upon which a marriage can be dissolved. To initiate divorce proceedings, one must establish valid grounds recognized by Kenyan law.

The Marriage Act does not expressly define what a divorce is. However, in summary, the Black’s Law Dictionary defines a divorce as the legal separation of two people by the judgment and decree of a court. A divorce is the process you undertake to dissolve the marriage permanently.

THE GROUNDS FOR DIVORCE IN KENYA:

A spouse can file for divorce based on the following grounds; adultery, cruelty, desertion, and irretrievable breakdown of a marriage. One has to prove beyond reasonable doubt that their spouse committed either of the mentioned grounds.

HAS v AAL [2020] eKLR: The plaintiff prayed for the dissolution of her marriage because her husband had neglected his parental duties, treats her with cruelty, insults her with vulgar words, and assaults her. Upon analysis of the evidence, the court entitled the plaintiff to divorce. The judge declared the marriage dissolved and ordered the issuance of a divorce certificate.

FAO v MB [2021] eKLR: The plaintiff filed for divorce because the defendant is negligent, assaults her, insults her, and treats her with cruelty. She also claimed that the defendant threatened to kill her. After successfully proving her case, the court granted the plaintiff entitlement to divorce since it was proved that she suffered psychological treatment and was denied her fundamental rights to marriage under Islamic law.

 1.   Adultery:

One spouse engaging in sexual relations with someone other than their spouse is considered adultery.

Adultery is a commonly cited ground for divorce in Kenya, and it is essential to provide evidence to substantiate the claim.

2.   Cruelty:

If one spouse subjects the other to physical or mental cruelty or harassment, it can be considered grounds for divorce.

Cruelty may include physical violence, emotional abuse, or any behavior that endangers the well-being of the other spouse.

3.   Desertion:

Desertion occurs when one spouse abandons the other without reasonable cause for at least three years.

The deserted spouse can file for divorce on the grounds of desertion.

 4.   Long Separation:

If a couple has lived apart for at least four years and can demonstrate that they have been living separate and independent lives during this period, it can be grounds for divorce.

This separation must be voluntary, and both spouses should be in agreement that the marriage has broken down irretrievably.

5.   Incurable Insanity:

If one spouse has been declared incurably insane by a qualified medical practitioner and has been in such a condition for at least five years, it can be grounds for divorce.

6.   Venereal Disease:

If one spouse has a venereal disease that is both incurable and communicable, and the other spouse was unaware of the disease at the time of marriage, it can be grounds for divorce.

7.   Impotence:

 If one spouse is impotent and unable to consummate the marriage, and this fact was not known to the other spouse before marriage, it can be grounds for divorce.

 8.   Presumption of Death:

If one spouse has been missing for seven years or more, and there is a presumption of their death, the other spouse can seek a divorce.

 9.   Non-Compliance with Court Orders:

Failure to comply with a court order regarding maintenance, custody, or any other court-issued directives can also be a ground for divorce.

 Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

 (a) Where the marriage has not been consummated since celebration.

 (b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

 (c) In the case of monogamous marriages, one of the parties was married to another person.

 (d) The Petitioner’s consent was not freely given

 (e) A party to the marriage was absent at the time of celebration of the marriage.

 (f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

 (g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

THE DIVORCE PROCESS IN KENYA

 The divorce process in Kenya is governed by the Marriage Act, the Matrimonial Property Act, and various other legal provisions.

1.  To file for divorce in Kenya, you must meet certain eligibility criteria, including having a valid marriage recognized under Kenyan law.

 2.   Grounds for Divorce: You must have valid grounds for divorce.

 3.   Consulting an Attorney: It is advisable to consult with an attorney who specializes in family law to guide you through the divorce process and ensure that you meet all the legal requirements.

 4.   Filing a Petition: The process typically begins with one spouse (the petitioner) filing a divorce petition in the High Court of Kenya. The petition should outline the grounds for divorce and other relevant details.

 

The Legal process for Divorce in Kenya

 Step 1

A Person seeking the Divorce is referred to as the Petitioner while the person against whom a divorce is sought is referred to as the Respondent. The divorce process begins with the petitioner preparing a divorce petition which sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. The Petition is filed together with a Verifying Affidavit, a Notice to Appear, a List of Witnesses and their statements and a List of Documents the Petitioner wishes to rely on.

Step 2

Once the divorce petition has been prepared and filed in court, it served together with a Notice to appear upon the respondent so that he/she can enter an appearance and file their response to the Divorce Petition. The notice to appear will normally direct the Respondent to appear and answer to the Petition within 15 days. Where the Respondent does not contest the divorce, he/she may opt to not file a response to the Petition and the divorce will proceed as uncontested. If the Respondent contests the grounds for divorce set out by the petitioner, he/she may file a response to the Petition also includes a cross-petition in which the respondent sets out their own grounds for divorce against the Petitioner.

Step 3

After the lapse of the 15 days, the Petitioner will request the court to issue a certificate allowing parties to move to the hearing stage. If the court is satisfied that the Divorce Petition is ready for hearing, it will issue the certificate and grant a hearing date. Both Parties will then get an opportunity to present their facts and evidence before the court during the hearing.

Step 4

After the hearing is completed, the court will issue a separate date where it will deliver its judgement. If the court finds that there are sufficient grounds to dissolve the marriage, it will then issue a Decree Nisi. The Decree Nisi is a temporary order that runs for 30days and gives the Parties time to make a final decision on whether they still wish to proceed the divorce and have the marriage dissolved. If the parties change their minds and choose not to proceed with the divorce, they are free to notify the court of their decision.

Step 5

If the Parties still wish to have their marriage dissolved after the 30 days of the Decree Nisi have lapsed, the court will issue a Decree Absolute which is the final decree of divorce to dissolve the marriage. At this point, the parties are no longer considered married to each other and are in fact both free to remarry.

 

 5.   Property Division: If there is matrimonial property involved, the court may determine how it should be divided between the spouses. The Matrimonial Property Act provides guidelines for the equitable distribution of property.

 

 6.   Child Custody and Support: If there are children involved, the court will also address issues of child custody, visitation rights, and child support. The best interests of the child are considered in these matters.

 

 7.   Hearing and Judgment: The court will schedule a hearing where both parties can present their case. After considering all the evidence and arguments, the court will issue a judgment either granting or denying the divorce.

 

 8. Decree Absolute: Once the court grants the divorce, a decree absolute is issued, officially terminating the marriage.

 

9. Appeals: Either party has the right to appeal the court's decision if they believe it is unjust.

 

10. Finalizing Financial Matters: After the divorce, the parties may need to finalize financial matters, including the division of assets and payment of any support or maintenance as per the court's orders.

 

Conclusion

Divorce proceedings are exhausting and time-consuming. Parties can simply use other alternative dispute resolution mechanisms to solve their marital issues. 

 However, heading to court is a good option because the decree made by a judge is usually final and binds all parties, meaning that there will be some understanding between the two parties. Courts should come up with better ways of solving divorce cases faster and more efficiently to reduce the workload and the number of unresolved cases.