11 Things You Need to Know Before Buying Land in Kenya
Do not get conned: Why due diligence is critical before buying land
Land is a very valuable asset because of its finiteness. There is only so much land that is available on this earth.
Humans not only live on but also perform all economic activities on land. This coupled with the fact the world population is ever increasing, land everywhere keeps on appreciating in value consequently attracting an upsurge in demand.
Because land is constantly appreciating in value, it is deemed an excellent investment by many. Hence the reason why land transactions are fraught with fraud. Therefore, as a buyer you need to know pitfalls to avoid and safeguards to take when purchasing land lest you find yourself deep in endless court battles or having lost your hard-earned money to swindlers or your million shillings investment being demolished because it is built at the wrong place such as a riparian reserve.
The following are 11 things that you need to do to avoid becoming a victim of land fraud:
- Proposed use of the land
Land in Kenya is categorized as agricultural, residential, commercial, industrial, recreational, riparian reserves, forest land, national parks and reserves, wildlife corridor, gazetted historical sites, flight paths, among others. The categorization of land is referred to as zoning. You should therefore enquire from both the National and County Governments whether the land in question is available for use, registered and suitable for the purpose for which you want to buy it.
You should go to the relevant authorities if the land sits next to a major road or highway, an airport, a river, a national park or reserve, forest, historical site etc. to find out from the authority if the land is theirs or not.
- Valuation
This is important as it protects you from possible exploitation from the seller and/or brokers. Valuation will provide an estimate of the market value of the land. Engaging a reputable registered valuer will be prudent.
- Meet the Seller in person
Before you pay for the land, have a physical meeting with the seller. Whereas online or remote transactions are growing popular and very convenient today, they are susceptible to fraud by fraudsters who may take advantage of you.
Request them for copies of their National ID cards, and PIN Certificates. If the seller is a company, request for copies of their National ID cards, and PIN Certificates of the directors.
- Ask neighbours questions about the seller or history of the land
Neighbours of the land you are interested in, are better placed to provide you with information regarding the real owner of the land, history of the land ownership as well as whether there are disputes over the land. A neighbour may inform you of family squabbles, boundary issues, how the land came about, whether it was a settlement scheme, community land, other buyers (multiple owners), set aside for public utilities such as sewerage plants, cemeteries and other very valuable information.
Show the neighbours the photos of the sellers or the directors as they appear on the copies of their National ID cards, and ask them to confirm whether indeed the persons whose photos are on the IDs are indeed the real owner of the land. If the seller is not the real owner and had forged the ID of the owner by replacing the real owner’s photo with the photo of the fraudster-seller, the neighbour will identify the deception, for instance where the real owner is an old lady or young lady and the photo on the ID shows a young woman or old lady respectively.
- Physical visit
Believe what you see and not what you hear or read online. Only pay after you have confirmed that the land meets your expectations, has a clean title, and is owned by the person purporting to sell it. You can be promised an elephant and be given a rat. You should also conduct a physical inspection of the boundaries.
If possible, wait for the rains if you want to be sure of the drainage and soil type. The case of the upmarket Green-Park Estate in Athi River which flooded in March, 2018 after Stoni Athi River bursts its banks, should be a reminder of the perils of purchasing and constructing on land that sits on flood prone areas.
- Survey
To ascertain your boundary, get a licensed land surveyor to survey the land and confirm the availability and integrity of the beacons and the boundaries. Request the surveyor to obtain the land’s survey map from the Survey’s office and check whether the land and its title number actually exists on the survey map. Survey maps are not easy to forge unlike title deeds, searches and other documents.
- Investigation of the title
Conduct a search at the relevant land registry. If you are buying land from a company, also conduct a search on the company’s directors and shareholders at the Companies’ Registry.
Why do a search:
- You will know the true owner of the land.
- You will know who are the true directors of the company, if the seller is a company.
- You will know if the land has an encumbrance (such as a bank charge, a caution, a caveat, a restriction).
- You get compensation for a mistake that arises out of an official search.
- You will know the exact size of the land as captured in the land records.
- You will know the history of the land, whether it belongs ultimately to the National Government or the County Government or a governmental authority such as the Export Processing Zones (in case of Leases), the number of years remaining on the Lease, or it belongs to the seller (in case of Freehold land).
- You will know the rent payable to the National Government, if there is any.
- Check authenticity of documents
Cases of falsifed Wills, Letters of Administration of a deceased estate, and Letters of Allotment are rampant. Sale Agreements, Land Transfer documents, Title Deeds, Green Card and Share Certificates where the property was acquired through a land-buying company are known to be forged by cartels and con-artists. In case of agricultural lands in both urban and rural areas, the fraudsters have been known to forge Minutes of Land Control Boards (“LCB”), the Transfer Consent Letter from the LCB, and the Sub-division Consent Letter.
Things to do:
- Request the court registry to confirm the authenticity of the Letters of Administration or Letters of Probate (if the owner had died and the “family” is selling the land to you), the seal and stamp of the court and the judge’s signature.
- Request to peruse the court file for the succession matter to check the records there.
- Request the County Government to confirm the authenticity of the Letters of Allotment, and if possible ask for copies of the Minutes of the county meeting that approved the allotments.
- If possible, check and confirm with the advocate whose name and address is on the documents, whose stamp appears on the documents to confirm whether he/she indeed prepared and witnessed the documents. Bona fide advocates can easily be traced using Law Society of Kenya’s search engine at: https://online.lsk.or.ke/
- Confirm the validity of the PIN Number of the seller and his/her name using the KRA PIN Checker at: https://itax.kra.go.ke/KRA-Portal/pinChecker.htm
- Visit the particular LCB offices and confirm the authenticity of these documents and the signature.
Is a few hours of time more important than losing millions of your hard earned money that took you years and sweat to raise?
- Land rates and land rent
Using copies of the title deed you have been given by the seller, check the outstanding land renton the land by logging in on your eCitizen account and navigating on to the Ministry of Lands section, or visiting Ardhi House in Nairobi if the land number cannot be found on the platform or visit the local land registry where the land is located. Check also with the relevant County Government the land rates outstanding. Land rent is paid to the National Government for GLA (Government Lands Act) and RTA (Registered Titles Act) lands while land rates is paid to the County Governments for all lands.
Some landowners do not pay the yearly land rent and land rates, thus accruing huge penalties. If you do not check and demand that the owner to settle all the rent and rates arrears on the land before selling to you, you will have a very hard time getting them to pay after you have bought the land or have to settle them yourself. Also, the arrears and penalties might stall the transaction for a long time since land registries will not complete the transfer until the amounts are settled and the seller provides Rent and Rates Clearance Certificates from the National and County Governments.
- Sale Agreement
Only after you have gone through the preceding stepsand are satisfied that you are dealing with a genuine owner, can you proceed to sign a sale contract. Ensure the Sale Agreement with the seller is in writing, signed by both of you and witnessed. It is important that you engage a lawyer to help you with due diligence, the land and company searches, the preparation of the Sale Agreement and transfer of land.
- Fence the land
Once you have signed the Sale Agreement and paid the 10% deposit while awaiting the completion of the registration of the transfer of the land to your name by the land registry and issuance of a new title in your name, fence it the land or truck building stone blocks and sand.
Fencing will do two critical things: (i) it will restrict encroachment; and (ii) it will help unearth any cases of multiple buyers. If the seller is dishonest and had sold the land to other persons, or is a swindler who is selling land that does not belong to them, the other buyers or the real owner will be informed by neighbours or their lookouts that a stranger is fencing their land and will rush to find out what is going on.
This way, you will discover the truth and instead of losing a 100% of your purchase money, you may lose only the 10% deposit and your precious time, a better outcome.
What you should avoid!
- Buying land belonging to a deceased person before succession formalities have been completed.
- Buying land near rivers, lakes, roads, forests, schools and other public bodies before you are sure about the boundaries.
- Developing land before obtaining the necessary approvals from the County Government, NLC and relevant statutory authorities.
- Purchasing leasehold land that has a few years remaining before the lease expires.
- Paying booking fee or commitment fee.
- Paying any amount even a deposit without signing a Sale Agreement. Agreements for sale of land are required by law to be in writing to be enforceable. Only pay the deposit after you and the seller have signed a Sale Agreement.
- Paying deposits that exceed 10% of the purchase price of the land. Only pay 100% after the land has been transferred into your name and the title deed has been issued in your name by the land registry.
Parting Shot
Land transactions may look simple but are complex in their simplicity. There is more to them than just buying and selling. You may know what to do but fail to know how to do it. You can thus seek the services of an advocate with a vast experience in conveyancing to help you navigate and sail through land transactions successfully.
Comments (61)
One of my friend purchased a plot from a company but was given a certificate of possession despite paying it all in full… Should she be worried or it’s the process
Hello Mercy! While a Certificate of Possession might prove that she paid for the plot, it does not prove legally that she owns the plot. Only a title deed will prove legal ownership. She should follow up with the selling company to find out when they will issue her with a title deed and what is holding up the process of issuing title deeds to purchasers.
Issuance of Certificates of Possession to purchasers by land buying companies is a common practice in the Nairobi especially Eastlands area where huge parcels of land which had one title documents previously were purchased or allotted to land buying companies and self-help groups which sub-divided them and sold to their members, a process that was often controversial and led to many court cases and ensuing reluctance by successive governments to issue title deeds for the sub-divided plots.
Also, there might be a genuine delay in the issuance of title deeds because of the lengthy process that sub-division of land in Nairobi is, with many governmental bodies being involved. What is most important is for her to determine the projected period which the seller anticipates to procure the title deeds, the timelines and where the process has reached.
Lastly, it is critical to always involve a lawyer when purchasing land to help undertake due diligence on the land and the seller, to help set and enforce the transaction timelines, and also to push the seller to grant certain safeguards such as the purchase money being held in a joint escrow account by both parties, or the lawyers of the purchaser giving a Professional Undertaking not to release the purchase funds to the seller until the purchaser receives a title deed in their name etc.
The information was very useful
Thank you very much! We are pleased to hear that.
I need to sell a land property of my father who is a deceased, which is the process?
You have to apply to the court to be issued with Grant of Letters of Administration (if the deceased did not leave a will) or Grant of Letters of Probate (if he left a will).
Once you have the Letters of Administration confirmed by the court or the issued Letters of Probate, the persons appointed as administrators of your father’s estate by the court (perhaps yourself) can then proceed to the Land Registry in the place where the property is situated and apply to the Registrar using relevant forms to be registered by transmission as proprietor or owner of the land in the place of your father and be issued with a title deed in your name. Thereafter, you can sell the property/land and transfer the title deed to the purchaser.
We have presumed that the property had a title deed. If there was none, the administrators will have the power to undertake the process of obtaining the title deed for the property.
What can you do incase you have bought a land in rural areas , you have completed the payment, you have fenced, you have drafted written sale agreement in presence of area subchief , you have gone to the survey registry they have given you your shamba number and in the process of proceeding title deed the owner gets another buyer who give big money more than yours and the owner decides to refund you and sell the land?
Hi! The answer in brief: you sue the seller for specific performance. You sue him in court asking the court to force him to complete the sale and transfer of the land to you. What the seller has done is he has breached the terms of the Sale Agreement you signed with him/her (we are assuming that the Sale Agreement was signed by you and him). What is specific performance: Specific performance is an equitable remedy in the law, whereby the court issues an order requiring a party (in this case, the seller) to perform a specific act (in this case, to complete the sale and transfer), such as to complete performance of the contract. But first thing first, you need to apply to the Registry to put a Purchaser’s Interest Caution on the land, then sue the seller and the new buyer under Certificate of Urgency asking the court to preserve the status quo (by issuing an injunction against the two) pending the determination of the suit where you will be asking for specific performance. Signed Land Sale Agreements are sacrosanct documents and cannot be discarded at whim as the seller is doing.
Thanks but wish to know what happened went seller dies before transfer of title deed
The family of the deceased person (the surviving wife or husband, or children) will have to apply to the court to be issued with Grant of Letters of Administration (if the deceased had not left a will) or Grant of Letters of Probate (if the deceased had left a valid will).
Once the family has been issued with Letters of Administration or Letters of Probate, (and in case of the Letters of Administration, the Letters of Administration have been confirmed by the court), the family members appointed as administrators of the deceased’s estate by the court can then proceed to the Land Registry in the place where the property is situated and apply to the Registrar using relevant forms to be registered by transmission as proprietor or owner of the land in the place of the deceased and be issued with a title deed in their name.
Thereafter, the administrators can transfer the title deed to the purchaser.
I have been desiring to buy land for sometime now.Am glad to have come across your article thankyou and i hope to learn more of this before i decide to purchase land.
We are quite happy to know that our article has been illuminating!
We are quite happy to know that our article has been helpful to you!
Thank you so much for this insightful post. I approached a real estate agent to show me land. I really liked it and was looking forward to meeting the owner. However, I got worried as soon as I got to their office and they had no name sign or official certificates on the walls to verify their existence , only a door number. I got the copy of the title deed of the land in question as well as the map which I was to check in the county govt. After reading this post, I realise how much care needs to be put into the issue of purchase of lands. I will be getting in contact with an advocate before proceeding any further.
Thank you again
We are very pleased that our article helped you know what to look out for and what to do! Also, very sharp of you to notice the lack of name signage and official certificates which even though are illegal but do raise suspicions about whether they are a legitimate business or something else.
Great article!
Thank you!
I want to buy a land around Athi River. This land is subdivided into plots with numbers and they all share a mother title. Am being told that each plot does not have a title and that the moment I make full payments it’s when they would start the process of getting a title for my plot. This means I cant do a search to the plot I want to buy. Kindly advise
Excellent question! Typically, when land is subdivided, the “mother” (or head) title is surrendered to the Land Registry of the area where the land is, and new title deeds are issued for each of the subdivided plots with their own individual registration numbers. Subdivision as explained here, (where there is an existing head/mother title), is not a very difficult process.
An honest seller of plots like the ones you mentioned, will ensure that each of the plots has its own title deed so that it can transfer the title deed of a plot to the buyer within 90 days as per the Law Society of Kenya’s Conditions of Sale.
A subdivided plot that has a number but not a title deed is a red flag. Also, the fact that they want purchasers to pay the full amount for the plots before they start the process of obtaining title deeds for them, is another red flag. What leverage will such purchasers have to ensure that the seller obtains the title deeds once it has received all the payments? What lawful proof will such purchasers present in case another person claims ownership of the plot or even the whole parcel of land?
An important issue to take note of, is that Certificates that are issued by some sellers or land selling companies are not legal documents that you can rely on to prove ownership.
Hi admin.
How can I get your help even if it’s to be paid for so that you can help me follow the entire process .
What are your contacts.
Are you an advocate or do you run a law firm.
Where are your offices.
Hi Alex, Yes, we are a law firm. Our offices are at KMA Centre, Block E, 4th Floor, Chyulu Road, Upper Hill, Nairobi.
I want to buy a land at Nakuru but have been told that the land has no title deed but a mother title that needs to be used to subdivide the land so the owner says before that is done we just need to go to the area chief and write an agreement then pay the land as I await the title deed what should I do,?
The best way forward would be for the owner to subdivide the land first before selling to you. Do not pay 100% of the purchase price to the owner then wait for the title deed to be processed.
If the owner is financially constrained and cannot afford to subdivide the land and obtain title deeds before selling, you may sign a Sale Agreement, then pay him/her a 10% deposit (only) to allow him/her to meet the costs for the sub-division and obtain title deeds for each sub-divided parcel including for the one you are buying. Subdivision (where there is an existing head/mother title), is not a very difficult process.
But before paying the 10% deposit, do a search, check with neighbours and family etc. as explained in the article. Engage a trustworthy lawyer to help you with the search, drafting the Sale Agreement, follow up with the owner and the surveyor who will be tasked to undertake the sub-division and general legal advice.
Paying 100% of the purchase price before sub-division has been undertaken and title deed for the land you are buying has been issued, robs you of the leverage you have over the owner to sub-divide and obtain the title deed. Also, what proof will you have in case another person claims ownership of the plot or even the whole parcel of land after you have paid?
An agreement signed before the area chief will not be of much help.
I want to buy land, owner died and there’s an administrator appointed. There is a restriction on the land . What do I do?
Hi! What kind of restriction is on the land? A Caution, Inhibition, Prohibition, Charge, Way-Leave, Court Order on Injuction etc.? Who placed it? Government? State parastatal? A family member? A purchaser with purchaser interest? The Registrar of lands there? A restriction is a warning to anyone who might want to deal with a land or property, and the public, that there is an unresolved issue. Find out the answers to the above since proceeding to purchase such land will definitely bring problems to you.
Thank you for sharing this article with us, it has given me an insight into the issue of land purchase.
You are very welcome!
Thanks for your response. Very helpful.
I am intending to buy a piece of land and the owner is not in the country. However the person am dealing with claims he has power of Attorney. What should i be on the lookout for to authenticate the deal?
Confirm the owner is indeed the registered owner of the land by conducting a search. You will need a copy of the title deed to conduct the search.
Request the owner to share:
(a) a copy of the title deed;
(b) a copy of their Passport (bio-data) page or national ID so that you can confirm the names of the registered owner on the official search matches the names on the passport or national ID;
(c) a copy of the power of attorney – the power of attorney must be in writing, must be signed, and must have been registered at the land registry where the land is – you will need to undertake a search of the power of attorney as well to confirm that the power of attorney is genuine and is registered.
Lastly, you will need to have a lawyer check on what powers are granted under the power of attorney, that is to say, whether the owner of the land who donated his power of attorney via the registered power of attorney, gave that person power to sell and deal with his land.
Is it safe to buy land that only has a certificate no title deed?
Hi Grace! The answer is “no”. It is not safe to buy land that does not have a title deed.
And a land Share Certificate is not a title deed.
The law provides that a valid Certificate of Title (aka title deed) of a parcel of land issued with the names of the owner (whether buyer or seller) is (a prima facie evidence) sufficient legal proof that the person named on the title deed is the (absolute proprietor) 100% owner of that land.
This then brings the question: (a) if the land being sold does not have a title deed that is in the seller’s name, how will you know that the land truly belongs to the seller, and (b) once you have bought the land and you only have a Certificate (we are talking of the Share Certificate that is commonly issued by sellers, land buying groups and self-help groups and not the Certificate of Title which is what legal name for the title deed), how will you prove that the land truly belongs to you? If someone else comes out with a title deed of the land you bought and sues you for fraud or trespassing on the land, the court will believe them over you.
Section 26(1) of the Land Registration Act stipulates as follows: “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except:
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party or
(b) Where the Certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
Section 24 (a) of the Land Registration Act provides as follows:
“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”.
I want to buy land but am out of the country.
Have sent my sister to look for a land near home but I don’t know how to go about it since I will not be coming to the country any time soon.
Please what is the best way to go about this?
The best way to go about investigating the land and purchasing it would be to engage a reputable lawyer or law firm to help you investigate the land identified by your sister and approved by you and to help handle the purchase formalities.
An experienced lawyer or law firm will be able to query and investigate the seller, the land in question and the ownership of the land. They will also help shepherd the entire process to the end and ensure you have a valid title deed that is in your name. They will know how to navigate the pitfalls that abound in land transactions and safeguard your interest and your hard-earned money.
Hello please explain further on why should one avoid Purchasing leasehold land that has a few years remaining before the lease expires.
The process of getting a lease over leasehold land to be renewed is long, tedious and cumbersome as well as costly. It is a process that ideally the owner who is selling the land, ought to undertake himself then sell to you the land. The process is also fraught with risk since it is not inconceivable for land cartels to get a whiff of the soon to expire lease and to engage in all manner of mischief to get the lease not to be renewed and be issued to themselves. Such things such as files in the land registry getting mysteriously lost and untraceable thereby grinding the process to a halt, do happen. When such happens, one has to apply for the file to be reconstructed, provide an indemnity, provide copies of documents of the land, copies of documents which show the history of ownership of the land, documents that you the buyer you would possibly not have. It is these issues which the owner would rather deal with then sell the land to you after the lease has been successfully renewed or extended.
what advice would you give to those interested in buying land from some Sacco’s in Kenya
As long as the land or plot of land being sold by the Sacco has a title deed and not a certificate, you can proceed to buy after undertaking due diligence. Even better, engage a reputable lawyer or law firm to investigate it and help you with due diligence and concluding the sale transaction whereby you will end up with a title deed with your names.
i lost my tittle deed , my plot is in nakuru, i av done land search and find out it was tranfer to another person, without my knowleg. but land rate is still with my name… is possible to tranfer land without paying land rate…i already ask green card through lawyer now it is 1 month no reply
That is a fraudulent sale probably facilitated using forged documents. Forgery is a criminal offence. Land that attracts land rates cannot be sold without the owner having cleared all the outstanding rates and obtained a Land Rates Clearance Certificate which will be part of the documents that will accompany the signed Land Transfer Forms which documents must be presented to the Land Registrar in order for the transfer to be effected, lawfully.
By rates not been paid, it is possible that no Land Rates Clearance Certificate was presented or a fake one was presented or an illegally obtained one was presented, all being unlawful.
You can engage another lawyer to assist or go to the Registry yourself and request for a copy of the Green Card to determine what transpired.
You should also apply to the Registrar to put a Caution on the property citing the illegal transfer of your land without your knowledge and the lost title deed.
You will need to obtain a police abstract confirming the loss of the title deed, beforehand. You will need to present a copy of the title deed, your original national identity card or passport, and a copy of your KRA pin certificate in order to obtain the police abstract. When you have the police abstract, you can proceed to see the Land Registrar together with a copy of the lost title deed, the search showing the land is in the name of someone else, an affidavit explaining where, when, and how the title deed got lost, as well the efforts you have taken to trace and recover the title deed, and other documents proving your ownership of the property. Take note not to leave original copies of your documents at the Registry. The Registrar ought to put a Caution on the file of the land, summon that person to explain how he/she acquired the land from you and to provide you with the form for applying for replacement of the lost title deed as well as guide you on what else will be required and what the process will be.
If the Registrar appears not to be sympathetic and helpful to you, report the fraud to the Land Fraud Unit of the DCI which deals with fraud matters regarding land to investigate the transfer.
You can also sue the Registrar and that person who is listed as owner of the land.
Hi, I bought a land and the title deed is under my name, later we parted ways with my wife who partially contributed to it of which i later refunded her. Can she in any way block in way if i want like to sell it. I.e there was no any written agreement with her
Ordinarily, a property (land, vehicle, house etc.) acquired by husband and wife while they are married to each other, is considered marital property and cannot be sold or charged by either of them without the written consent of the other. This applies even if the property is in the name of one of the spouses.
Without a written agreement between you and your wife whereby she agrees to relinquish her rights voluntarily upon being refunded her contribution, you cannot say with certainty that she cannot block the sale of the land, especially if: (i) she alleges that the land is marital property, (ii) that she never consented to the sale, and (iii) that she was never paid back her contribution or share of the land.
What might be of help to you is that the title is in your name and if you have proof of having paid her (bank transfer slip, bank deposit slip, Mpesa messages, or witnesses who can attest that they saw you paying her etc.)
Woow… this is awesome.So helpful.
Thank you!!
What should I do? When other relatives claime to get back the land I bought and go title deed, because they were not engaged in the agreement process.
Hi Eric. Unless the land you bought was owned jointly by the seller and his/her relatives or the seller held it in trust for the relatives or his community, the relatives have no claim against that land or you.
A relative of a person has no claim over land or any asset owned by that person. If they claim the land and refuse to acknowledge your purchase and ownership of the land, you can sue them and request the court to issue an order of permanent injunction prohibiting them from interfering with your ownership of the land.
Only where land belongs to the community and not to the individual selling it can the community, or relatives claim that they were not consulted and therefore reject the sale. Such communal ownership of land can be found in Maasai land and other pastoralists areas. In such areas, one can find land that is owned by the community but registered in the name of one or more members of that community to hold in trust for the members of their community.
Kindly let me know your contacts. Send in my email.
info@otadvocates.co.ke
My father before he died sold a piece of land to another person. As it occurs by now the buyer keeps on extending the boundaries. Can I get this piece of land back?
Hi Justus. If your father sold the piece of land and the buyer paid the agreed full amount, you cannot repossess that land as it is now owned lawfully by the buyer. That land is now the buyer’s property and the only way you can get it back is: (a) he failed to complete paying the agreed purchase price of the land – hence he is in breach of the Sale Agreement of the land, or (b) you make an offer to him to purchase back the land and the buyer agrees to sell.
What to do in case of encroachment of Land Boundaries:
However, if the buyer has been “extending the boundaries” to paraphrase what you have written, then this is a case of encroachment.
You will need to hire a surveyor to survey the two parcels of land and the boundaries (the land that was not sold and the boundaries between that land and the land that was sold) in order to determine whether the seller has encroached on your land and by how much. All this will be made possible if you know the size of the land (in acres or hectares) that was sold by your late father. If the land that was sold has a title deed, then the title deed will have the size of the land sold.
Also, simultaneously with engaging the surveyor to survey the boundaries, you can lodge a complaint of the encroachment with the Land Registrar of the local land registry who will then investigate the encroachment. The Land Registrar can summon the buyer, and witnesses to the sale of the land by your father (perhaps elders), consult the records at the registry about the land in question (the parcel sold and the other encroached land), take note of any physical features that denoted the boundaries such as a tree, a river, etc. The Registrar will then make a Ruling and issue a report on the issue.
The Land Registrar has the power to determine boundary disputes under Sections 14, 18, 20 and 21 of the Land Registration Act. Surveyors on the other hand are only mandated to fix the boundaries once the Land Registrar has made a determination of the boundary dispute.
To recap the above:
(a) lodge a complaint of the encroachment with the Land Registrar of the area where the land is;
(b) the Land Registrar will investigate the encroachment by consulting the records of the land at the Registry including title deed of the sold parcel and encroached land, consult the Sale Agreement of the sold land, summon the witnesses to sale including local elders who have a history of the land;
(c) engage a private Surveyor to survey the encroached land and the boundaries; and
(d) do not sue first, but let the suit be the last step once the Land Registrar has issued a Ruling in your favour and the buyer has refused to abide by the ruling.
I bought a land in sirare 2015 the seller was the son of the decised father the only document I have is agreement btn him the seller and me buyer. He has sold that land to another person and told me to go for my money what can I do
Hi Mose. A contract of any kind binds the parties to the contract and is enforceable in court unless it can be proved that one of the parties was a minor, or signed it under undue influence or duress, or there was misrepresentation or a mistake, or it was an illegal contract, or contract has been frustrated.
In your case, the sale agreement (which we presume was signed by both seller and buyer) is a binding document and enforceable in law. The seller had no powers to sell the land to another person as the land had already been sold to you. Neither can he refund back your money unless you had breached the terms of the sale agreement (perhaps by not paying the purchase price in full or failing to pay on time as agreed).
If the seller sold the piece of land and you as the buyer paid the agreed full amount and on the agreed time, he cannot resell that land as it is now owned lawfully by you. That land is now your property since you are a purchaser for value from the previous owner.
What we do not know is whether the land had a registered number and a title deed or not.
Cautions:
Section 71(1) of the Land Registration Act allows any person who claims to have a legal right under a land sale contract (such as a buyer) to file a caution with the Registrar of lands, which caution will forbid the registration of any sale of the land concerned.
The Registrar will consider the claim of the person who wants to lodge a caution. If he/she finds the claim to have merit, he/she will place a caution on the land such that no one will be able to register any transfer, lease or charge on that land. This means that any sale of such land (after the caution has been placed on the land) will be legal. Do note that the Registrar can approve the caution application or reject it as unnecessary.
A caution forbids the registration of sale of land unless a court of law orders otherwise or the person who placed the caution gives permission for the registration.
You will need to fill in a Caution Form and swear a Statutory Declaration setting out your claim, the facts leading to you wanting a caution to be placed on the land and why the caution should be placed on the land.
The Registrar will then notify the seller and the other purchaser, in writing, of the caution to the land.
Powers of the Registrar over Cautions:
If the Registrar receives an application from the seller and/or the new buyer requesting the Registrar to remove the caution, the Registrar will write to you. The notice from the Registrar to you will notify you of the application to remove the caution, reasons given by the applicants to support the application and warn you that you can object to the application within a specified period or else the caution will be removed upon expiry of that period.
If you receive such notice, you must object to the application and justify why the application must be rejected by the Registrar, before the period for objection expires.
After the Registrar has received your objection, he/she will call all parties (you, the seller and new buyer, witnesses to the sale to you and the sale to the new buyer) to a hearing or meeting where everyone will be given a chance to be heard. The Registrar will then make his decision known to everyone about the caution and the two sales and give orders on who will pay whose costs.
Powers of the Court in cases of Breach of Contract and Cautions:
Remember, you can always appeal to the court to overturn the Registrar’s decision if you are not happy with it or you feel that injustice committed against you has not been properly addressed.
Once a caution has been placed on the land, you can proceed to sue the seller for breach of the Sale Agreement you had with him and enjoin the new purchaser on the suit. You will request the court to issue: (a) an order for specific performance (forcing the seller to complete the transfer of the land to you), (b) award you damages for breach of contract (c) issue an order of permanent injunction against the seller and the new buyer (to stop them from ever interfering with your enjoyment of the land) and (d) order the Registrar to register you as the lawful owner of the land.
Hi thanks for this article, and the Q and A very helpful. I want to buy a plot, it was 2acres,the land was subdivided into plots, the owner says the title is at the lands registry, is there a way i can confirm if this is true
Hi Tobias. Happy to be of help and glad that you are taking all precautions to prevent yourself from being scammed.
Ask the owner to share with you either: (a) a copy of the title; or (b) the title number if he does not have a title. It’s easier to do a search at the land registries if you have a copy of the title of the land you want to search. If he does not have a copy of the title, he should know the title number. Approach the land registry officials and explain your situation to them and give them the title number for them to search.
If he has neither of the two, walk away. There are other parcels of land to purchase.
This is a very informative piece. Thank you so much.
I would wish to purchase some plot in Nairobi through some land selling urgencies, however, their rule is that they can only transfer a title deed upon completion of payment, and this takes 6months from the day I complete the payment. This seems to be the norm of all the land selling urgencies. And another issue is that the plot has to be booked with the 10% within a month. My question is, is it just okay to bend to their rules? And what are the key documents/things I need to watch out for as I do my very initial due diligence? Is there a document that I need to sign with them just so I am sure there will be NO form of conmanship? Sometimes their sales representatives are very convincing. Thanks
We advise that before purchasing land – by paying and signing an agreement for sale with the seller – you must conduct your due diligence to establish the identity of the seller as the owner of the land and the authenticity of the Title Deed. This is done by conducting an official search at the Land Registry. Although you can conduct due diligence, it is far prudent to engage a reliable land legal expert to assist you.
It will also be prudent for you to visit the parcel of land to confirm its physical condition and suitability, and confirm the identity of the owner by talking to the neighbours of that land, the chief or assistant chief, the village elder (“mzee wa mitaa”) and local chairman of “nyumba kumi”.
Once you have confirmed the ownership of the parcel of land and are satisfied with its physical condition and the identity of the seller, you can proceed to request for an agreement for sale.
Do not execute the agreement for sale unless you have reviewed the terms and conditions set therein and are satisfied.
Ensure that the agreement for sale is duly executed and that you retain a copy.
Having a lawyer assisting you will be very helpful since he/she will help conduct due diligence such as doing a land search at the land registry, a company search on the land selling company, check Ndung’u Land Report to confirm that the land is not government land and can extract certain concessions from the sellers.
Hey there, is it risky to buy a piece of land with certificate instead of title deed?
Yes, it is. A Share Certificate is not recognised by our laws as a legal, land ownership document. You will have a very difficult time convincing anyone including the courts that the land is yours. Especially if someone else comes out with a title deed over that land. Only title deeds are bonafide and legal land ownership documents.
This is the most insightful article online I’ve ever come across in regards land.Please if possible where can I search for reliable land lawyers and surveyors to help me with land purchase..Thanks
We are very glad to hear that you found this article helpful! And not to beat our own chests, we confirm that we are reliable land and conveyancing lawyers and have very good and trustworthy surveyors. Contact us to help you actualise your dream of owning a home or land.
Hi admin, thanks for the enlightment, i am working at a certain real estate firm and i was doing my research, am so glad to find your page.Looking forward to reading more of your content!
Regards
Felistar Wangare.
Thank you for your kind words!