LEGAL REQUIREMENTS FOR SELLING PROPERTY IN KENYA – A DETAILED GUIDE

Selling property in Kenya involves several legal processes to ensure that the transaction is valid, protects both parties, and is compliant with the country’s land laws. Below is a detailed breakdown of the legal requirements a seller must fulfill before transferring ownership to a buyer.

1. Proof of Ownership – Title Deed Verification

Before listing a property for sale, the seller must ensure they possess a valid title deed registered under their name. A potential buyer will conduct a title search at the Ministry of Lands to verify ownership and check for any encumbrances, such as:

• Existing loans or charges (e.g., if the land is used as collateral for a mortgage).
• Legal disputes or caveats that may prevent a transfer.
• Government reservations (e.g., compulsory acquisitions or zoning restrictions).

According to the ruling in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, when the registered proprietor’s title is under challenge, they must prove the legality of the title beyond merely presenting the instrument.

How to Conduct a Title Search:

1. Visit the Ministry of Lands or eCitizen platform.
2. Provide a copy of the title deed.
3. Pay the required search fee (usually Ksh 500).
4. Obtain an official search report confirming ownership details.

2. Land Control Board (LCB) Consent (For Agricultural Land Sales)

For agricultural land, the Land Control Board must approve the transaction to prevent fraudulent sales and protect public interest.

Steps to Obtain LCB Consent:

• Submit an application to the local LCB office.
• Attend a meeting with the buyer.
• Pay the application fee.
• Receive an LCB Consent Letter allowing the sale.

3. Drafting and Signing a Sale Agreement

A sale agreement is a crucial legal document outlining the property sale terms. It should be prepared by a qualified lawyer.

Key Contents of the Sale Agreement:

• Property description (size, location, title number).
• Selling price and payment terms.
• Deposit amount (typically 10-30%).
• Responsibilities for tax and legal fees.
• Completion timeline and possession terms.

4. Tax Compliance and Stamp Duty

Sellers must pay Capital Gains Tax (CGT) while buyers cover stamp duty.

5. Final Transfer and Issuance of New Title Deed

After fulfilling all legal requirements, the ownership is transferred, and a new title deed is issued to the buyer.