Conveyancing Law in Kenya

In Kenya law, conveyancing is the transfer of legaltitle of real property from one person to another, or the granting of an encumbrancesuch as a mortgage or a lien. A typical conveyancing transaction has two major phases: the exchange of contracts (whenequitable interests are created) and completion (also called settlement, when legal title passes and equitable rights merge with the legal title).

The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. It is a legal requirement in all jurisdictions that contracts for the sale of land be in writing. An exchange of contracts involves two copies of a contract of sale being signed, one copy of which is retained by each party. When the parties are together, both would usually sign both copies, one copy of which being retained by each party, sometimes with a formal handing over of a copy from one party to the other. However, it is usually sufficient that only the copy retained by each party be signed by the other party only — hence contracts are "exchanged". This rule enables contracts to be "exchanged" by mail. Both copies of the contract of sale become binding only after each party is in possession of a copy of the contract signed by the other party—ie., the exchange is said to be "complete". An exchange by electronic means is generally insufficient for an exchange, unless the laws of the jurisdiction expressly validate such signatures.

It is the responsibility of the buyer of real property to ensure that he or she obtains a good and marketable title to the land—ie., that the seller is the owner, has the right to sell the property, and there is no factor which would impede a mortgage or re-sale. Some jurisdictions have legislated some protections for the buyer, besides the ability for the buyer to do searches relating to the property.

A system of conveyancing is usually designed to ensure that the buyer secures title to the land together with all the rights that run with the land, and is notified of any restrictions in advance of purchase. Many jurisdictions have adopted a system of land registration to facilitate conveyancing and encourage reliance on public records and assure purchasers of land that they are taking good title.

Conveyancing searches

As part of property transactions, theconveyancer’s role is to carry out due diligence by submitting queries – known as searches – about the transacted property. These are designed to uncover factors theestate agent or surveyor may not know about, which could impact the buyer’s enjoyment of the property .

Property searches include:

Local authority searches – to reveal any charges or restrictions of use on the propertyChecking the ‘title register’ and ‘title plan’ atLand Registry - to confirm ownership and boundaryChecking flood risk – from coastal, river or surface water floodingWater authority searches – find out if any public drains on the property might affect extensions or building works.Chancel repair search – to ensure there are no potential leftover medieval liabilities on the property to help pay for church repairs.Environmental search – provides information about contaminated land at or around the property, landfill sites, former and current industry, detailed flooding predictions, radon gas hazard, ground stability issues, and other related information.Optional and location specific searches – sometimes extra searches are required or recommended depending on the location or type of property or due to particular concerns raised by the buyer.

Search providersEdit

Local authority searches, according to the Law Society [1], are a ‘vital part of the conveyancing process and give buyers important information about matters affecting a property that is registered or recorded with the local authority.^[14] However, over the years, delays with local authority searches ^[15] have prompted lawyers to order a ‘personal’ search, carried out by a third party or a search provider, who visits the council office and inspects and records the information kept by the local authority^[16] on behalf of the conveyancer or solicitor.

Private search companies and ordering platforms have been integrating Land Registry’s data to speed up the process of search ordering, improve accuracy and reduce the chances of human error. 

A common conveyance conveyancer usually takes 4 to 6 weeks. Most firms offer fixed price services which normally include costs for searches, legal advice and other outlays. In most cases a typical conveyance includes, but is not limited to, the following:
checking for encumbrances and restrictions on the property ensuring special conditions mentioned in the contract are met making sure rates,
land tax and water consumption charges are paid by the appropriate party arranging for the payment of fees and charges and government duties preparation of legal documents.for the purchaser,
liaising with the financiers of the purchaser to satisfy their requirements before settlement for the vendor, liaising with the financiers of the vendor to arrange settlement and obtain discharge of mortgages on the title arranging and attending final settlement

Searches tend to take up the bulk of the conveyance.
Most information is retrieved from state or local (council) authorities. 
Depending on the circumstances of each case, and depending on the jurisdiction, a title search may also involve:

registered plan search or building units/group titles plan
search company
 search contaminated land search council property
search full council inspection of records
search land tax 
search main roads search.