A GUIDE TO OWNING LAND IN KENYA

Disclaimer : This article is meant for informational purposes only and should not be construed as a legal opinion. Should you have any questions or need clarifications on the subject matter, kindly feel free to contact us for legal advice.

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Owning land in Kenya is a dream shared by many. However, amidst the excitement, it is important to tread carefully to avoid potential pitfalls, including falling victim to scams. One of the most effective tools at your disposal is conducting due diligence – a fancy term for doing your homework.

Due diligence refers to a series of deliberate/intentional steps taken to ensure the land you intend to buy is safe and free from any hidden claims.

Why is due diligence so important? Think of it like this; just as you would check if a fruit is ripe before buying it, you need to ensure the land you want to buy is genuine and secure. Your guide book for due diligence in Kenya is the Land Act (No. 6 of 2012 Laws of Kenya) and Land Registration Act (No. 3 of 2012 Laws of Kenya). These Acts provide rules and regulations to protect you.

In this article, we shall explore how you can navigate scam so as to make your land buying experience a smooth and safe one.

Understand the Basics of Land Ownership in Kenya

The cornerstone of property ownership in Kenya lies in obtaining a valid title. The ways in which a person acquire title in Kenya include: allocation, adjudication, compulsory acquisition, prescription, settlement programs, transmissions, transfers, long-term leases of more than twenty-one years from private land, or any other way stated in a law passed by Parliament.

The Process of Buying Land in Kenya

1. Identify the piece of land you want to buy

As a buyer, the first step is to identify land in areas that align with your preferences, budget, and future plans. You might need to consider factors such as proximity to essential services, accessibility, and the overall development outlook of the region.

You should also schedule a visit to the identified land to assess its physical characteristics, topography, and surrounding environment. This firsthand experience allows you to gauge the suitability of the land for the intended use and identify any potential challenges or advantages it may present.

2. Verify the Certificate of Title or Certificate of Lease

The second step is to ensure that you are dealing with land that has a registered title. This important step will ensure that the transaction will be legal and authentic.

As a buyer, you need to obtain a copy of the certificate of title or certificate of lease and conduct an official search to ensure that the title reflects the accurate ownership details as recorded in the official land register.

3. Verify the land reference number and confirm the land boundaries

The Land Registration Act prescribes the allocation of a unique land reference number to each parcel of land in the country. This number serves as a distinctive identifier, facilitating easy tracking and verification of the land in official records. It is important to visit the relevant land registry and cross-check the provided land reference number with the official records to confirm its accuracy and authenticity.

It is also important to engage a licensed land surveyor who shall conduct a thorough survey, physically marking and confirming the boundaries of the land. This survey should align with the information provided in the land registry and in the certificate of title or lease.

4. Verify the zoning category and use of the land

It is important to also take note of the zoning regulations in the area where the land is located. Land zoning is an integral part of government planning process, allowing towns and cities to make the best use of their resources to benefit the city and its residents. Broadly speaking, there are five main types of land zoning -

• Residential land zoning

• Industrial land zoning

• Commercial land zoning

• Agricultural land zoning

• Rural land zoning

Understanding which areas are zoned for what type of development, will ensure you have sufficient information about potential opportunities that match your specific needs as a buyer/developer.

In summary, you will need to confirm that the intended use of the land aligns with the zoning regulations to avoid future inconveniences.

5. Verify the land tenure

It also important to note the various types of land tenure that exist within the Kenyan legal framework as highlighted below -

• Freehold - grants the owner absolute ownership rights.

• Leasehold - holding land for a specified period.

• Such forms of partial interest as defined under the Law such as easements.

• Customary land rights, where consistent with the Constitution.

This may call upon you as the buyer to investigate the ownership history of the land to ensure there are no disputes or conflicting claims. Beyond the official records, engaging in conversations with neighboring landowners can provide valuable insights into the land's history. Neighbors often have firsthand knowledge of the land past, including any disputes, boundary disagreements, or historical uses of the land.

6. Watch out for encumbrances

Encumbrance refers to any charge, lease, or interest listed in the Land Register's encumbrance section. As a buyer, you should check whether the land you intend to buy has any encumbrances, such as charges or liens.

7. Investigate the actual value of the land

Understanding the value of a land is key when buying land. As a buyer, you need to engage the services of a land valuer to help you determine the fair price, in order to help you make a wise and informed investment.

8. Obtain Land Rent and Land Rates Clearances Certificates

Land rates refer to the levies imposed by county governments on land owners. Land rent on the other hand is paid to the national government for Government Lands Act (GLA) and Registered Titles Act (RTA) lands, now repealed.

As a buyer, you need to ensure that the seller is up to date with the payments. Failure to pay land rent/rates results in penalties and in extreme cases may lead to legal action and delays in the transfer process. If you buy a land which has outstanding rents/rates, the burden of clearing the same will falls on you.

9. Agreement for Sale

An agreement for sale is an important document which serves as the legal foundation for the transaction. It outlines the terms and conditions agreed upon between the buyer and seller.

Hiring an advocate to do this will ensure that the agreement aligns with legal standards for the protection of both parties. The agreement should clearly outline the important details including the details of the parties, payment terms, and contingencies. Registration of the agreement adds an additional layer of security, formalizing the transaction and signaling the successful culmination of the land acquisition process.

10. Ensure there are Consents from the Relevant Authorities

Consents are written permissions required by law from authorities or land owners for any legal land transaction, to ensure that the transaction is valid. Depending on the location and intended use of the land, the seller needs to obtain consents from various authorities to ensure compliance with land use and planning regulations.

The following are some of the consents that are required before a seller can sell the land -

• Land Control Board Consent – applies to agricultural land

• Consent of the National Land Commission – applies to land leased from the National Government

• Consent of the County Government – applies to land leased from the County Government 

• Lessor's Consent – applies to land leased from someone other than the government

• Management company’s consent – applies to units within a development for instance, if the owner of a sectional property wants to sell his/her unit.

• Spousal consent – applies to land which forms part of matrimonial property.

• Chargee’s consent – applies to land that has been used as security for a loan facility.

11. Transfer

Land transfer is the final step in making a land purchase official. After signing the sale agreement and acquiring the necessary consents and clearances, the legal process involves transferring ownership from the seller to the buyer.

There are certain documents which are essential for facilitating the transfer of land ownership. These documents include -

• Original Certificate of Title or Certificate of Lease

• Official Search Certificate

• Certified Copies of the Seller and Buyer's National Identification Card

• Seller and Buyer's KRA PIN Certificate

• Seller and Buyer's Coloured Passport Photos

• Land Rent and Rates Clearance receipts

• Relevant Consents

• Signed Land Transfer Forms

Hiring an advocate for this will ensure you get the necessary guidance through this stage. Once completed, the transfer solidifies your ownership, marking the successful conclusion of the land acquisition journey. Once the transfer is complete, you will be issued with a certificate of title or certificate of lease depending on the type of land tenure.

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