Category: Land Laws

The idea of ‘fake it till you make it’ has been idolized in recent years. We all admire the bravery it takes for someone to do something they are not ‘qualified’ to do, sometimes even better than those who are. The higher the stakes, and the more they have to lose if they get caught, the more thrilling it is. It’s like watching a very captivating movie in real life. 

However, we have to agree that this only works for some professions. I would not be comfortable flying in a plane with a self-taught pilot. Even for a minor surgery, I wouldn’t want to be operated on by someone who has read all medicine books or even watched 1000 videos on YouTube on operations. It is the same case for a legal practitioner. No matter how ‘good,’ knowledgeable, or charismatic they may be in court, it is to your disadvantage. Because even if you win, you still lose. 

We have heard the phrase ‘null and void’ so many times in this country. This is what happens to a ruling if the lawyer in charge of your case is not qualified. It doesn’t matter how much time has passed since then. This is exactly why you must know whether the lawyer you engage is qualified, trustworthy, and competent to handle your case.

Qualifications of an Advocate

Anyone who identifies as an Advocate must have a Law Degree Certificate from a recognized university in Kenya or an institution approved by the Council of Legal Education (CLE). They must have undertaken the Advocates Training Program and passed The Bar Examinations. After this, the lawyer must complete their pupillage (apprenticeship) before being assigned the role of an advocate.

Every new advocate is assigned a unique designation called a practicing number. This is what uniquely identifies them from the rest. It is also the one sure way to know that the person you are dealing with is authentic. You can verify them by a simple Google search of their name on the Law Society of Kenya’s (LSK) website, and their practicing number should match the name. 

Note: An individual with a law degree is not an Advocate. They are known as a Lawyer (when speaking, we sometimes use the terms interchangeably, but it’s important to know the difference). A lawyer can only give you legal advice but cannot represent you in court or perform the role of an Advocate. To attempt to do this is a criminal offense.

Filing a Complaint

This is where the distinction between a lawyer and an advocate comes in handy. Unlike a lawyer, an advocate is bound by the codes and ethics of the Legal Profession because they are a member of LSK, the professional body in charge of the legal profession in Kenya. When an Advocate breaks the codes and ethics of the profession, they answer to the Disciplinary Tribunal. You can also lodge a complaint against an advocate for professional misconduct to the Advocates Complaints Commission.

It is, however, important to note that a complaint lodged against an Advocate to the Tribunal does not disqualify them from practicing. It is saved as a pending disciplinary matter awaiting investigation. Even lawyers are innocent till proven guilty because the law does not discriminate. If found guilty, a punishment equivalent to the act is administered to the tune of license revocation, prosecution, or both. In the next section, we shall discuss more ways to protect yourself from corrupt legal practitioners. 

How to find the right lawyer for you

The following are the five things you should consider when choosing a lawyer. We do not give them as an exact science because situations differ. These are, however, the things we believe will give you a better chance of getting the outcome you want. 

AREAS OF SPECIALIZATION – Not every advocate is best suited for your case. There are so many areas of practice for any one advocate to be competent in all. An advocate handling your child custody agreement (Family law) may not be the one best suited to handle your land case (conveyancing). 

PS: If you wish to work with one entity, choose a law firm that houses lawyers with different specializations.

REPUTATION – as mentioned earlier, ensure your advocate is in good standing with the LSK. Check if they have been involved in cases of fraud or malpractice before. This will help you know the amount of caution to exercise with them or look for alternatives. 

TRACK RECORD – just like any other person you hire to do something for you, their performance record is paramount. Find out their success with the cases they have handled or the magnitude of cases they have tried. If it compares to your case in any way, then you can have more confidence in them. 

YEARS OF EXPERIENCE – we have to admit this does not say much about their competence. Still, years of practice is one of the best ways to gauge any professional regarding experience and knowledge. 

TESTIMONIALS – this is one of the oldest but most effective ways of verifying anyone. Find other people the lawyer has served and get their experiences. Of course, you won’t lack one or two angry/dissatisfied clients…nobody is liked by everyone. But if a majority have bad experiences, then run for your life!

If you are the kind of person who feels like all this is a lot of work, then we have an easy way for you. Sometimes, you may have a lot on your plate and not have the time to do everything on the checklist. You may also have a legal emergency that needs immediate attention. In such cases, you are better off working with a law firm than an individual. There is nothing wrong with working with an individual; there are many good representatives out there. There are, however, lower chances of quacks practicing in a firm than you would find individuals pretending to be attorneys. A law firm does the hard work, so you don’t have to. 

We have legal practitioners in different practice areas. For any inquiries, questions, or comments, reach us on call at 0713 889 939, Click the WhatsApp button, or email us at consult@mahida-maina.com. Thank you for taking the time to read to the end.

By Natasha Andeyi, Lawyer.

It is a Kenyan dream to own a family home. Some prefer to have it close to the city, or at least close to where they work. Others simply want a home away from the busy city life where they can spend the golden days with peace and serenity. Whether you are in the first or second group, we can all agree that the process of building a home is not easy. It is very costly, time-consuming, and stressful…especially if it is your first time. But even before you start building, identifying a piece of land you wish to build on (if you don’t have one already) and paying for it is another strenuous task. This is why it hurts deeply when after all that effort, you find yourself in the above situation when it rains.

We would like to tell you that this is the only problem you could face as a new landowner. But it’s not. There are other legal problems that are just as painful. By the time you are done reading this, you will know the FIVE things causing new landowners sleepless nights and how to avoid them.

In our legal profession, we have seen many bad things happen to good, innocent, and hardworking Kenyans who only wanted to acquire a good piece of land to build a home or rental property. This is why we will always insist you do thorough due diligence to avoid losing your money to a fraudulent deal. The case of flooding land is sometimes tricky to assess because it can happen out of natural and unforeseen causes. In most cases, however, the seller fails to disclose this information so they can make the sale. In the due diligence process, there is a clause that requires the land seller to disclose any defect on the piece of land before the final transactions. This is why you should be well-versed in the due diligence process. If you did not get an opportunity to engage with our previous article on due diligence, click here and get informed.

As I mentioned earlier, flooding land is NOT the only problem that can make you regret your investment decision as a new landowner. We have five more legal issues that you be cautious of when buying land or any other property. By getting acquainted with this, you will be better than 80% of Kenyan land buyers who are most likely to fall victim to the same.

The five legal issues you need to watch out for…

INTERESTS
This is the most obvious thing to check, but also what many people miss. Some properties contain fines, accumulated land rates, and other arrears that were not settled, which you inherit as the new land owner. In some cases, it may be more than what was paid for when purchasing the property.

PROHIBITIONS
This is one of the least known laws by the general public regarding land. It’s not always the case that when you buy land, you can do anything you want with it. Some places are designated for commercial purposes, others for agriculture, and most for residential houses.

CAUTIONS
A caution is a notice registered by a person that restricts any dealings regarding the land without their consent. It may be a money lender holding land as collateral, a partner with a shares on the land, the authorities because of a pending court case, and many other scenarios…

EASEMENTS
Easements are laws that allow other people access to your property without your permission. For example, an easement law may allow people to use your land as a shortcut to get to another destination. This may limit your privacy, especially if you want to build your residential home.

CHARGE REGISTERED
This is an instrument that shows details of any mortgages or restrictions on the use of the land or rights someone else has over the land. For example, when a landowner uses her title deed to acquire a loan from a bank, the bank registers a charge. The worst-case scenario is that the bank could repossess your land if you cannot pay the loan.

How to avoid Fraudsters
We do not need to tell you that the land transaction business is full of people with evil motives. And they are everywhere, even among those who should be protecting you against these criminals. But these people rely on one thing alone. This one thing makes it easy for them to con you. If you know it, then you can never be their victim. These criminals have good knowledge of the law, which makes it easy to twist so they can effortlessly benefit from your hard-earned money. This is why it is always advisable to have a legal guide when buying land. It should be seasoned professional with many years of experience. Someone familiar with the terrain and knows what to look for and where to look for it.

Additionally, you should consider the following as safeguards before making the final payment:

• If the deal is too good, be extra cautious!
• Avoid paying money to individuals’ i.e agents, brokers. Make sure you deposit the funds directly to a seller firm if reputable, or a credible law firm as a custodian
• If using a lawyer, check if he/she has any disciplinary action taken against them before entrusting the with the funds
• Make sure the firm or lawyer you choose uses the LSK’s conditions of sale 1989 & 2015 edition…you can never go wrong with this.

We are not better than other law firms who do the same. We have access to the same knowledge, data, and even the level of access provided by the government. But with our many years of experience in the land transactions business, we have learnt two important things. In every marketplace, there are two sets of rules governing the way of doing business. There are written rules which are clearly stipulated by the governing authorities. Then there are the unwritten rules dictated by the marketplace…and sometimes these are the most important to know if you want the job done promptly and efficiently. It is our knowledge of the inner workings of the land and properties business that makes us exceptional and able to deliver to our clients in the shortest time possible.

If you are planning to buy land soon or are in the process of buying, then you can trust in our ability to help you get exactly what you have been promised. We have helped many and continue to do so successfully for companies and individuals alike. You, too, can benefit from our services and secure your investment. It is very easy. All you need to do is contact any of our branches near you. The call will be non-obligatory and with no consultation charge. We will then assess your case and advise you further.

Click here and get in touch with a branch near you. Thank you for taking the time to read through.

You have just identified your ideal piece of land. It is just a few meters away from the main road. You can see schools, a couple of well-known churches, and a shopping center with a well-stocked supermarket, which is just a 15-minute drive. The offer is crazy, and you just can’t wait to have your name on the title deed. You pull strings left, right, and center to get the full amount. You pay, and after a few weeks, you get your title deed as promised. Only later do you discover that there are 3 other people with the same documents, also claiming ownership. The seller is nowhere to be found!

This is a predicament facing many people buying property in Kenya. You at least know of one person who has been defrauded. It’s all over the news. And we can assure you that the heap of files in our courts is ever-increasing. In short, you do not want to be a victim. And you will never be if you carefully read this article to the end.

We have dealt with land and property cases (Conveyance) for many years. We have assisted thousands of people in buying and selling property. We have also helped with cases of fraud. Some were successful. Some were too far gone for anything to be salvaged. With this experience, we share with you some of the things we feel are important when buying property in Kenya.

DUE DILIGENCE

When purchasing property, it is not enough to invest your money. Investing enough time to know what you are buying is equally important. For instance, you need to know the property’s current or previous owner(s). You need to find out if the location at the registrar’s office matches what you saw on the ground. You want to know if there is a charge or easement law on the land. This is the process of Due Diligence.

Due Diligence is the research you conduct, physically or virtually, that helps you know the ownership of a title to a property and whether or not that title is inhibited from various processes or procedures. For example, when a land owner uses her title deed to acquire a loan from a bank, the bank registers an instrument called a Charge. This means that whoever wields the title is responsible for the loan. This is one of the many reasons why the due diligence process should be thorough. You will avoid potential pain and losses in future.

Let’s go to the fine details. Below is an in-depth analysis of what due diligence entails, explained in a simple way that is easy to digest.

1. Search
This is the first and most important step in the Due diligence process. Initially, you had to make a request to the land’s office and wait in line for your request to be honored. Thanks to the digital platform (Ardhisasa), the process is easier and faster.
A Search is conducted by the one desiring to Purchase the property through their Advocate. You can do it yourself physically, but we will be doing you great injustice by not advising you against it. If you know what you are doing, well and good. If not, you may find yourself in the predicament of this Kenyan who got a title deed that made him a proud owner of a roundabout along Tom Mboya Street.

A good search should determine whether the title deed exists and whether it is legal (original). It should also ascertain whether the property is privately owned (not public). If you are purchasing the property through a developer or land dealer, then you should equally do thorough research on the company. Find out who their lawyer/law firm is, and get to know their reputation or standing with the Law Society of Kenya (LSK). Also, find their existing customers, if any, and assess their congruity. If you cannot do all of that for any reason, you can always hire a lawyer.

To conduct this Search, you need the following:
• A Search application form
• A Copy of the title deed
• A Copy of the seller’s ID
• A Copy of the Seller’s KRA Pin Number

2. Ardhisasa
As stated earlier, searches were initially conducted at the Physical Land Registries until the 27th of April 2021, when the Ardhisasa online platform was launched. Thanks to Ardhisasa, you can do a search from anywhere.

For you to enjoy this service, you have to register for an Ardhisasa account. You can register as a professional, regular user, or both. Professionals have to be vetted and their credentials quantified before they can get the advanced account. The professional account has special privileges and access that are not available to the regular user. All qualified advocates have this special access.

Once you’re registered and logged into your registered account, you will see a ‘Services’ icon on your left. This is where you find the Land Registration option, which contains the search function, among other options. There are good videos on Youtube that can give you a step-by-step guide on how to navigate the platform.

Once the documents are verified and the Search is successful, you will receive a Certificate of Search.

3. Pre-Contract Inquiries
This method complements the ‘search’ function in the due diligence process. It exposes what might otherwise be missed by the search. It involves assessing the physical location and condition of the property as well as the actual title document.

We have seen cases where people bought land already inhabited by squatters, who had to be forcefully evicted because they were fully convinced they owned the property. Now imagine if your plan was to build a family home. Would you feel safe?

A Pre-Contract inquiry helps you assess the risk to make an informed decision.

4. Deducing/Proof of Title
Once you’re done with the third stage, you can go to the next stage of Deducing or Proof of Title. Much of the responsibility here lies on the seller, but it is important that you be involved.

The deduction of title involves the verifications of documents mentioned earlier in the first part (search) of the due process. This includes the Deed Plan or Registry Index Maps and the seller’s National ID and KRA pin.

PS: The seller is legally required to disclose all defects associated with the properties within their knowledge.

5. Requisitions
The last step in this process makes you both a lawyer and a detective. It involves asking questions and raising any objections or reservations you may have after assessing the title document. Requisitions come before you execute or sign the instrument enabling the transfer of title. It requires you to have a keen eye for detail to notice any irregularity, e.g., the absence of a signature or mark that executes the contract, so you can avoid problems in the future or after making the payment. Sometimes an absent or misplaced comma (,) may extend the conveyance process by months, costing you more time and money to get it right.

At first, the due diligence process may seem too long and even overwhelming. However, considering the amount of money you could lose if not done right, it is a small price to pay.

Do you have any questions or concerns on this topic or article? Click here and contact a branch near you. You can also send us an email at consult@mahida-maina.com with the subject line ‘Due Diligence’ and we will respond promptly.