Frequently Asked Questions on Property

1. CAN A FOREIGNER BUY AGRICULTURAL LAND IN KENYA?

The general rule is that foreigners cannot buy agricultural land in Kenya.

Under Article 65 of the Constitution, non-citizens can only hold land through a lease, and only for a period of 99 years. This essentially means that a non-citizen cannot hold property in Kenya absolutely. Also, the Land Control Act forbids the ownership of agricultural land by foreigners, or firms owned by foreigners, whether partially or wholly. 

However, the President may exempt a foreigner from these restrictions. This exemption must be done through a notice in the Kenya Gazette.

Foreign investors seeking to buy agricultural land may apply for such exemption, which is usually granted at the discretion of the President.

1. WHAT DO I NEED TO ESTABLISH BEFORE PURCHASING PROPERTY?

• That the land does exist
• That the person selling the land is the owner
• That the land does not have any encumbrance, and is not attached to a bank
• That there is no dispute whatsoever over the land

The potential buyer must carry out due diligence before signing a sale agreement and before making any payments towards the purchase. The buyer can engage a lawyer to represent them in the transaction.

NOTE: If you suspect that a document is fake, report to the nearest police station and be advised on where to take the document for examination.

1. WHAT DOCUMENTS SHOULD I CHECK BEFORE BUYING LAND?

• The title deed
• The official survey maps (to confirm the dimensions, location and the user)
• An official search
• A historical search
• Consents
• Land rates and land rent clearance
• Capital Gains Tax (CGT) Acknowledgment Slip or Exemption
• Seller’s ID and PIN

1. HOW DO I KNOW IF I AM THE LEGAL OWNER OF MY LAND?

Conduct a search at the Ministry of Lands Registry to ascertain that the title is under your name.

1. WHAT IS A PARENT DOCUMENT FOR LAND?

This is the document that traces the origin of property as well as all other relevant conveyance deeds. It is the main document that determines ownership of a property. Since tracing ownership should always begin with scrutiny of the earliest document recorded, where such documents are not available, certified copies have to be obtained from the registering authorities. These documents are called mother or parent documents.

1. WHAT DOCUMENTS ARE REQUIRED FOR LAND REGISTRATION IN KENYA?
2. LAND RENT CLEARANCE

• a duly filled online application form
• a copy of the title
• land rent payment receipts for that year

1. VALUATION 

• a copy of the title
• the original transfer instrument, duly executed
• a sketch map with directions to the property

1. CONSENT TO TRANSFER

• an application letter from the registered owner, or his advocate or any other of his authorized agents
• a copy of the title
• an official search

1. TITLE REGISTRATION

• the original title document
• the original receipt showing payment of stamp duty 
• Capital Gains Tax Payment Acknowledgement slip or exemption 
• a duly executed transfer/lease/charge instrument, in triplicate
• spousal consent
• land rates and land rent clearance certificate
• Land Control Board consent to transfer (for agricultural land)
• certified copies of KRA PIN certificates and ID cards of both parties, or the CR12 for companies

1. HOW LONG DOES TRANSFER OF TITLE DEEDS TAKE IN KENYA?

  They take between 14 and 21 days.

1. IS BUYING LAND A GOOD INVESTMENT?

Most of the time, buying land is a good investment. One, however, needs to invest in due diligence, to avoid getting conned.

By Andrew Wanga and Victory Wanjohi

www.mmsadvocates.co.ke