Guide for buying land in Kenya with checklist.
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All You Need To Know When Buying Land in kenya

Buying land is one of the most sensitive transactions due to the legal, technical and historical issues surrounding land ownership. Understanding the different types of land, ownership structures, legal procedures and what to pay attention to while on your due diligence is essential before committing your money; whether a Kenyan citizen in the diaspora or a foreigner.

Land in Kenya can either be private or public, and ownership may either be freehold or leasehold.

Public land is owned by the Government, whether at the national level, county level, or through parastatals and state corporations.

Public land is often available in larger parcels, and acquiring it involves more strenuous procedures such as:

  • Public participation
  • Bureaucratic approvals
  • Competitive allocation in most cases

Most public land is leasehold and is generally more affordable than private land because it is rarely left for long-term speculation.

Private land is owned by individuals or companies. Most land transactions in Kenya involve private land because the acquisition process is generally more straightforward than acquiring public land. However, private land transactions are not risk-free either.

Ownership Process:

Freehold land is land that can be owned for 999 years and is exclusively reserved for Kenyan citizens while Leasehold land can be owned for up to 99 years and is open to both Kenyan citizens and foreigners. Although leasehold land may be privately occupied, it is ultimately Government land that has been leased to the current owner for a specified period.

Procedure:

  1. Personally (or using a trusted representative) conduct a physical site visit. This is to confirm that the land actually exists, assess the general condition of land especially from its previous use, whether it floods or close to a riparian reserve and confirm any survey beacons. Speaking to the local residents may help you in some of these answers and its history as well.
  2. Request a copy of the title deed from the seller which you will use to engage a licensed land surveyor to conduct an official search and verify that the size of the land matches the documentation provided. The surveyor should also investigate the complete history of the land from the original parcel, through every subdivision (if any), up to the current ownership. Minor discrepancies may arise but solvable save for and fakeness of the title deed.
  3. Once approved by the land Surveyor, engage a Conveyancing Land Lawyer, to draft/review the sale agreement and further investigate and encumbrances attached to the property such as pending court cases, pending land rates/rent(if leasehold), mortgage charges etc. For outstanding land rates or land rent, the seller should first clear them and obtain the relevant clearance certificates and a Mortgage Discharge where a mortgage exists.
  4. Once approved by the lawyer, apply for consent from the land control board whether the transfer documents will be needed such as the title deed,passport photo, copy of IDs/Passport and KRA PIN.
  5. Once approved, the land control board (through the deputy county commissioner), pay the deposit (as a greed and preferably  held under an escrow arrangement so that it is refundable should the transaction fail).
  6. The land registrar will request that you pay the registration fees and  stamp duty, which (in terms of property value) is 2% in rural areas and 4% in urban areas and the processing of the new title begins in your name. A this stage the following additional documents will be required : Original title deed, duly signed transfer forms, consent from the Land Control Board (optional), KRA PINs (buyer and seller), 2 passport-sized photos from both parties and sale agreement.
  7. The title processing takes upto 60 days from date of board consent and once its completed, the buyer pays the seller the balance and becomes the new registered owner.

The purchase process applies for both leasehold and freehold. However, for leasehold, additional checks must be carried out because the land ultimately belongs to the Government and is only leased to the registered proprietor.

At the due diligence stage, if any outstanding land rent is discovered, the seller must first clear all arrears before notifying the Chief Land Registrar of the intended transfer. Leasehold land is commonly found in urbans as its for  commercial activities.

One important aspect to understand is that when purchasing leasehold land, you do not receive a fresh 99-year lease. Instead, you inherit the remaining lease period from the previous owner. Once the lease expires, you will be required to apply for its renewal.

Freehold land can also be converted to leasehold land, a process called change of user, which is undertaken after the sale has been completed because the newly issued title must first be surrendered to the Lands Registry for conversion. This process additionally involves the physical planning department of the respective county/subcounty.

What an Official Land Search Reveals:

  • Whether the seller is the registered owner on the Green Card (freehold) or White Card (leasehold).
  • Any registered encumbrances, including mortgages and unpaid land rates or land rent that may complicate the transaction.
  • Caveats such as  court orders or other restrictions preventing transfer of the property.
  • The exact land details, including; size, location and boundaries.

The documents reviewed in this search include:

  1. Green Card/White Card – The Green Card (freehold) and White Card (leasehold) reveals the complete ownership history of the land, including all transfers and registered encumbrances. If a title deed exists but no corresponding record can be found on the Green Card or White Card, the title is likely to be forged.
  2. Mutation Form/Survey Plan – reveals the exact dimensions of the land, physical shape and exact location. If the land being bought  has been historically subdivided, this document proves it.
  3. Registry Index Map – reveals that the parcel has been officially mapped in its stated location. The map contains numerous land parcels and is particularly useful when replacing a lost title deed. Occasionally, a valid title deed may exist while the parcel is missing from the Registry Index Map and this is where a licensed land surveyor is engaged to apply for correction at the Lands Registry lest it will lead to boundary disputes and difficulties in using the property as collateral for a loan in the future.

Make sure to still do another search after receiving your title deed deed to ascertain that records have been updated or even before final payment is made to make sure that no encumbrance has emerged in the middle of the transaction.

How To Tell If The Physical Title Deed is Legitimate:

  1. The cover page describes the type it title and has the parcen number, land area, map sheet number, registered owner`s full name with national ID and date including the location of Issue.
  2. Has 3 more sections after the cover page:
    • Property section – shows property details.
    • Proprietorship section – shows the registered owner’s details.
    • Encumbrances section – shows any caveats, charges or other registered interests affecting the property
    • Cadastral plan – shows the physical boundaries of the registered land.
  3. The document has watermarks with Government court of arms and an embossed red seal describing type of title.

NB: You can have a physical title deed that passes all these checks and also serving as general of ownership but still revoked. This is because, it was acquired through an un-procedural process. For instance if did not obtain official consent from the land control board , whether knowingly or unknowingly.

Other Important Information You Should Know:

Before Purchase:

  1. Land in extreme rural areas is ancestral and should be handled with great caution. It may be under a trust or still in succession. The person selling the land here (more often) does not have (sole) legal ownership and the transfer process will be illegal hence title revoked.
  2. Allotment letters are not title deeds but merely indicate Government’s intention to allocate land and does not confer transferable ownership. If purchasing land from someone holding only an allotment letter, insist that they first obtain a registered grant because, at that stage, the allottee is not yet the registered proprietor. Share certificates are also not title deeds/proof of ownership. Share certificates from SACCOs or any other entities are also not title deeds/proof of ownership.

  3. For leasehold land, transactions should be based strictly on the current lease. The Commissioner of Lands has no authority to reallocate land merely because the lease has expired. As a buyer, you should establish the Government’s legal interest in the property at the point of allocation and determine whether the land was properly alienated.

  4. Land prices in Kenya, particularly for freehold land, are not indexed. This creates room for freedom in pricing and where underpriced its mostly liked a con game. If overpriced, mostly likely there are a lot of middlemen who might not be always representing the actual seller. The best way to confirm price is by using a professional valuer or a competitive market rate from nearby areas.

  5. The law places an obligation on every prospective purchaser to conduct their own due diligence before completing the transaction and on the seller duty to disclose any latent defects or material issues affecting the property that they are aware of. This means that possession of a procedurally acquired title deed generally secures your ownership against old, undisclosed claims.

After Purchase:

It is good practice to immediately build a permanent structure (of your choice) on the land right after purchase. Doing so demonstrates active possession and care of the property hence reducing any risk of encroachment/grabbing.

Currently, we are still moving to a new digital platform called Ardhi Sasa where you can conduct digital search, provide survey documents, pay land and stamp duty and many more tasks.

This is an improvement of the older manual system of physical records and had cases where land registrars acting in collusion land grabbers  created duplicate land records, resulting in a single parcel appearing to belong to two different people. They new system has eliminated a bigger probability of it but extreme remote parts of the country might still be vulnerable. Should you be a victim, you are likely to still be protected provided:

  • You acquired your title procedurally.
  • You can prove that you have provided better care to the land as aforementioned.
  • You paid and still actively paying all relevant charges i.e stamp duty, land rates, land rent.

In conclusion,  always insist on conducting your own due diligence instead of relying solely on information provided by the seller. Additionally, engage all aforementioned  professionals and keep copies of every document, receipt and payment record, as they may become critical evidence should ownership ever be challenged.

You can have a physical title deed that passes all these checks and also serving as general of ownership but still revoked. This is because, it was acquired through an un-procedural process.

For more information, reach out to us via info@rickfes.co.ke

At Rickfes Construction Ltd, we help investors, developers and property owners acquire land with confidence where the intention is to develop. From due diligence and acquisition support to feasibility studies, design and project management. If you’re planning to develop and stuck with acquiring land, let’s help you get it right from the very first step. Contact us today.