land transfer process in kenya
The Land Transfer Process in Kenya.
Introduction.
Transfer of land in Kenya involves key critical steps including Verification of ownership, Obtaining all relevant consents, Executing transfer documents, Paying stamp duty and finally lodging all the dully executed completion documents with the office of the land registrar for registration.
Step 1: Obtaining the Official Certificate of Search. It’s obtained from the office of the land registrar where the land subject to the transaction is located. Search serves as a due diligence confirmatory document for ownership and also notifies the parties to the transaction if the land is subject to any encumbrances such as cautions, charges or inhibitions.
In Dina Management Limited v County Government of Mombasa & 5 others [2023] eKLR, the Supreme Court imposed a mandatory obligation to the buyer to conduct thorough due diligence before purchasing land which involves moving beyond just checking the official title at the land to tracing the root of the title, physical inspection of the property and conducting in depth searches to ascertain the legal status of the property.
Step 2: The Contract stage. This process involves procuring legal services of an advocate to draft the land sale agreement. Sale agreement is a legally binding document that sets out the specific terms and conditions under which a seller agrees to sell and a buyer agrees to buy the land. It must contain the general elements of a legally binding contract that is offer and acceptance to sell the land, consideration, legality and capacity to contract. The sale agreement should contain key clauses including the parties to the transaction, property description, purchase price, completion clause, default clause, dispute resolution clauses among others.
Step 3: Obtaining all relevant consents. For agricultural lands, the land control board consent is mandatory. For matrimonial properties, spousal consent is required.
Step 4: Obtaining Clearance Certificates. If the property was subject to rate payment, that is, it’s located within municipality, urban areas or rural areas managed by county government, the seller is obliged to obtain a Land Rates Clearance Certificate from the county government. For leasehold land, a Land Rent Clearance Certificate is mandatory.
Step 5: Preparation of transfer documents. This step involves executing LRA form 33 which is the document required for transfer of an interests in land. The purchaser’s advocate is mostly responsible for drafting the transfer form upon being furnished with all the relevant completion documents.
Step 6: Valuation and payment of stamp duty. Stamp duty is the tax imposed by government on legal instruments and documents that relate to transfer of land. For lands located in urban areas, the assessed stamp duty fee is always 4% while for lands located in rural areas, the stamp duty fee is always assessed at 2%. The purchaser is legally mandated to pay the stamp duty fee within a time frame of 30 days after the valuation date, default to which attracts a penalty.
Step 7: lodging all the dully executed completion documents with the land registrar for registration. This step involves lodging all the dully executed completion documents with the land registrar for registration. Such completion documents include:-
- the transfer form (LRA Form 33),
- Original title deed
- KRA PIN certificate of both parties
- Copies of identification documents (ID/passport)
- Land search results
- Land Control Board consent for agricultural land
- Spousal consent for matrimonial land.
- Sale agreement
- Stamp duty payment proof
Step 8: Registration of the transfer and issuance of new title deed. Once the registrar is satisfied that the all the prerequisites with respect to the transaction have been fulfilled, he registers the deed and issues a new title deed in the buyers name in case of purchase or beneficiaries name in case of gift.
At Siyasa and Company Advocates, we offer expertise and professional legal services to our clients to who may wish to transfer land. We have a seasoned, competent and esteemed team ready to serve you diligently. Conduct us for further advise.
Disclaimer: “This article is for informational purposes only and does not constitute legal advice. For inquiries, please contact Siyasa and Company Advocates.”
-Contributed by-
-Francis Kitheka-
