The process of Creating of a Sectional development

• A sectional plan describing two or more units is prepared by a surveyor from a building plan approved by the county government. This could be a private surveyor. In preparing the sectional plan, the surveyor will require a land search, construction permit and the floor plans. Further, the physical structures must have been erected on the land.
• The application for registration of the sectional plan is lodged at the land registry for registration. The Registry Index Map will be amended upon registration.
• The application to register a sectional plan is accompanied by an application to incorporate a management corporation. The management corporation consists of the unit owners. A certificate of registration of the management corporation will be issued to the applicant.
• Once the sectional plan is registered, the land registrar is required to submit the registered plan to the county government for apportionment of rates within 21 days.

Legal Review: The Sectional Properties Act 2020 ("Act") & Its benefits

The Sectional Properties Act 2020 ("Act") was enacted in 2020 to align with the provisions of the Constitution of Kenya, 2010 and the land laws enacted in 2012. Subsequently, the Cabinet Secretary for the Ministry of Lands and Physical Planning gazetted the Sectional Properties Regulations ("Regulations") on 16 November 2021. Please read the frequently asked questions (FAQs) on the Act and the Regulations below.

What is the purpose of the Sectional Properties Act, 2020 (Act) and Sectional Properties Regulations, 2021 (Regulations)?
The Act provides for the division of buildings into units to be owned by individual proprietors and common property to be owned by proprietors of the units as tenants in common and to provide for the use and management of the units and common property.

The Regulations operationalise the Act and outline the procedure for registration of sectional plans and conversion of long-term leases registered under the Land Registration Act, no. 3 of 2012 (LRA) to sectional titles, among others.

Benefits of the sectional regime of ownership:
It simplifies sale transactions since individual sectional titles can be transferred in the typical way that land is transferred. Lengthy lease documents will no longer be required.
Purchase of sectional units is less costly since the Purchaser will not be responsible for the Vendor’s Advocates legal fees, unless otherwise agreed. They will also not be required to incur costs for transfer of reversionary interest.
Administrative challenges surrounding transfer of reversionary interest and issuance of share certificates are eliminated.
Land rates/rent to be paid per unit thus enhancing revenue collection.
The sectional regime increases access to financing. By simplifying the process of obtaining title documents for the units, unit owners can easily secure financing by charging the units in favour of the lenders.
It offers better protection to the unit owners. Sectional developments are regulated by the comprehensive provisions of the Act and the by-laws of the management corporation. The rules also prescribe disclosure requirements which enable purchasers to be informed of the status of the development including any existing encumbrances when purchasing a sectional unit.
It promotes vertical development on land & therefore optimizes the use of the limited land resources in Kenya. This increases the number of units available for homeowners. It is, therefore, good for high population density areas.

Doing a land search

A land search will reveal the following;

The current registered owner(s) of a property and the duration of their ownership.
The current encumbrance(s) against the title deed, like bank loans, court judgements or “cautions” by any interested parties.
Fill in the Search Application form and submit it to the relevant registrar of lands office, together with

A copy of the title deed (preferably a certified copy) to the prospective property.
A copy of your ID.
A copy of your KRA PIN certificate.
Once processed, the registry will issue you the search report, detailing the status of the title in question.

If unable to conduct the land search yourself, hire a licensed advocate of the High Court of Kenya. Be sure to confirm the validity of their current practise license with the Law Society of Kenya, as each advocate must make annual renewals of their license to practice law within the Republic of Kenya.

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The Divorce process Explained (A Complete Guide to Filing & Documents Required)

A suit for dissolution or annulment of a marriage is commenced by filing a petition. The petition can be drafted by an individual (if they do not have the finances to procure an advocate’s services) or a procured advocate. The subsequent sections outline the divorce process in Kenya.

Drafting and Filing a Divorce Petition
It is the first step of dissolving a marriage, where a disgruntled spouse petition to the family court to have the marriage with their spouse terminated on either ground of desertion, adultery, cruelty, or irretrievably breakdown.

The petition should provide details such as: –

• the names of the parties;
• the date and the place of the marriage;
• the address of the parties involved;
• any living child(ren) of the marriage with their birth dates;
• details of any previous proceedings regarding the marriage, providing the dates of such proceedings and the applicable decrees/ outcomes.
• the alleged matrimonial offence, or other grounds on which the relief is sought, setting out with sufficient particularity in separate paragraphs the individual facts relied on, other than the evidence by which they are proved;
• the reliefs sought from the court, which may include; –

• the dissolution/annulment of marriage;
• prayers of nay costs sought;
• restraining orders where a spouse is molesting another; and
• restitution of conjugal rights; among other reliefs. N.B Issues of custody and maintenance of children are dealt with by the Children’s court subject to the provisions of the Children Act, 2022.

 

The petition should be signed by the petitioner and, in case of a minor or a person of mental unsoundness, a next of kin.
Documents that accompany a divorce petition:

• A marriage petition must be accompanied by the following documents; –
• A verifying Affidavit: It verifies that the petitioner has material knowledge of the facts deponed and the honesty/veracity of the deponed facts.
• A copy of the certificate of marriage
• A list of witnesses if any
• A list of documents e.g., birth certificates of the children, and reconciliation certificate.
• Written witness(es) statements.

Where a petitioner seeks ancillary reliefs from the court, they can file a notice of motion at any stage of the proceedings. Once the divorce petition and the accompanying documents have been filed in the court, the court signs a notice to appear.

Notice to Appear
A notice to appear is served upon the respondents, informing them that a divorce petition has been filed and they need to enter an appearance either on themselves or through an advocate within fourteen (14) days.
The notice should be accompanied by the petition or any other ancillary application.
Once the petitioner or their advocate serves the respondent, they should file an affidavit of service as proof of the service.
Respondent’s Response and Cross-petition
After the respondent is served and enters an appearance, they should file a response to the petition within fifteen (15) days.
The response beyond denying the facts given in the petition should contain the statements of facts relied on their denial.
A response should be accompanied by; –
A verifying affidavit verifying that the matters deponed are within respondent’s knowledge and the veracity of the deponed facts;
A list of witnesses if any;
Witnesses’ statements if any; and,
A list of any relied documents.
A respondent’s response may also contain cross-petition that should include all the elements listed of a petition.
The response and the cross-petition should be served upon the petitioner or their advocate.
Certificate of Compliance
After the close of the pleadings (where both parties have filed all their documents) the petitioner may apply for a certificate of compliance, previously referred as a registrar certificate.
The certificate of compliance merely verifies that all pleadings, service, witnesses’ statements etc., have been duly acted upon and the petition is ready for hearing.
An application for the certificate of compliance is done via a notice of motion supported by a sworn supporting statement.
Setting the petition for hearing.
Where a certificate of compliance has been issued, the matter proceeds to the most critical part, which is the hearing.
During the hearing, the petitioner or their advocate adduces evidence of the irretrievably broken marriage and the fact that there is nothing to salvage.
The respondent will also have an opportunity to support their response and/or cross-petition.
After the hearing, the court schedule the judgment date/ decree
Decree Nisi
The court on being compelled that the marriage has irretrievably broken and there is no way the parties can be expected to live together, issues a decree nisi.
A decree nisi does not dissolve that marriage but merely acknowledges the broken nature of the marriage and accords an opportunity to the parties to examine if they truly want to dissolve the marriage.
Decree Absolute
After the expiry of 4-6 weeks, the court, upon application and payment of the relevant fees, issue the decree absolute.
A decree absolute fully dissolves the marriage between the parties, and they are deemed to have never married.
Only after the decree absolute is granted can the parties remarry.
The Magistrate, on issuing a decree absolute, should send a certified copy to the Registrar, who insert the nature of the proceedings, the date on which the marriage was dissolved and the date on which the decree absolute was issued into the marriage register.
A party dissatisfied with the Magistrate’s decision regarding the divorce petition appeals to the High Court within 30 days of such order. An appeal to the High Court, unless the court otherwise orders on application by the appellant, act as a stay of such order or decision.
 

Conclusion
In conclusion, it is important to point out that the current round of amendments to the Marriage Act, as presented under the Kenya Marriage Amendment Bill, 2023, may lead to drastic changes in marriage and divorce legislation. Explore the new information with respect to divorce procedures in Kenya in our Family law blog section

Breach and Enforcement of Verbal/Oral Contracts in Kenya

One can claim dues or compensation from a verbal agreement in Kenya, as long as the agreement is proven and the terms are enforceable. Verbal contracts, also known as oral contracts, are legally binding in Kenya. 

Proving a verbal contract:
Verbal/Oral contracts can be proved by extraneous evidence e.g., conduct, exchange of invoices and receipts, bank transfers, WhatsApp communication, email correspondence etc.

To prove a verbal agreement, one can use evidence like witness testimonies, conduct of the parties, and other relevant documents.

Key points to note for Verbal contracts:
Legally Binding: Verbal agreements are legally enforceable in Kenya. 

Proof is Crucial: Establishing the existence and terms of the verbal agreement is essential. 

Evidence Matters: You can use various forms of evidence to prove the agreement, such as witness testimonies, conduct of the parties, and relevant documentation. 

Enforcement: If a party breaches a verbal agreement, the other party can seek legal remedies, including compensation or specific performance. 

Specific Performance: In certain cases, the court may order the breaching party to fulfill the terms of the agreement (specific performance) instead of awarding damages. 

Consideration: For a contract to be valid, there must be consideration, which is something of value exchanged between the parties.

How to prosecute/claim:
1. Gather Evidence:
Collect any evidence that supports the existence and terms of the verbal agreement.
2. Consult a Lawyer:
Seek legal advice from a qualified advocate to understand your rights and options.
3. File a Claim:
If you believe there has been a breach, you can file a claim in court, seeking appropriate relief.
4. Present Your Case:
 

Court process:

In court, you will need to present evidence to prove your claim and the breach of the verbal agreement. 

Examples of Evidence:
Witness testimonies from people who were present when the agreement was made.
Conduct of the parties, such as actions that show they understood and intended to be bound by the agreement.
Correspondence, such as emails, texts, or WhatsApp messages that refer to the agreement.
Bank transfers or invoices that relate to the agreement.
Any other relevant documents or records. 

 

Remedies for breach of contracts:
Include: Damages, Rescission, Specific Performance, Restitution.
 

'Specific performance’ of a contract
This is a limited remedy granted by courts where damages alone would not be adequate compensation for a breach of contract; and the court therefore orders that the contract be performed by the party in breach.

What is a plaint for breach of contract?
A plaint sets out the facts of the breach to be litigated upon in court and the remedies sought; and it is filed alongside witness statements and accompanying annexures.

Breach of contract example of case laws:

1. Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009]eKLR on general damages

2. Bid Insurance Brokers Limited v British United Provident Fund [2016] eKLR on oral contracts.

What constitutes frustration of  a contract?
Frustration of a contract discharges the obligation of a party to perform a contract when there is a supervening event that amounts to a frustration under law. E.g., if there is an employment contract to be performed in Kenya by a foreigner and the foreigner fails to obtain a work permit from the Kenyan government, then that contract is frustrated by a supervening event outside the control of the parties discharging them from the contract.

Are illegal contracts enforceable?
Courts will not enforce a contract arising out of a transaction which is illegal. For instance, a contract between parties that is used to facilitate money laundering; or an agreement to share proceeds of corruption between parties etc.

Important Note: 

While verbal agreements are legally binding, they can be more difficult to prove than written contracts. It's always advisable to document your agreements in writing whenever possible.