Land Laws in Kenya have seen a great deal of reforms in the last several years. They are now aligned with the values envisioned in the Constitution of Kenya and alive to developments made since independence. However the conveyance process is still an arduous task with a great deal of paperwork and elaborate rules. Each transaction must be handled carefully to ensure that good Title is passed.
That’s why we wrote this article – to help you with all the ‘fiddly details’ of executing a conveyance instrument.
- Attestation – is the signing of a document by a qualified witness. Attestation is required for any instrument or contract.
- Conveyance – is the process of transferring an interest in land from one person to another.
- Disposition – means giving some or all of your interest in land to another, for payment or not. This includes almost any means of transferring land, including Easement, Charge, Lease, Partition, Grant, Transfer, Mortgage or Sale.
- Execution – is when legal documents are signed and all other requirements are met (such as Attestation), the documents are deemed to have been executed, and go into effect.
- Instruments – are legal documents for conveyance e.g. Transfers, Leases, charges etc.
- Verification – is making sure the people executing the instruments are who they really claim to be.
2. Execution and Attestation
Execution and Attestation almost always takes place at the same time, as the Attesting witness needs to be present when the instruments are signed by the parties.
Instruments for conveyancing are contracts. If any of the parties fail to fulfill any of their obligations under the contract the innocent party may seek recourse through the courts.
In Kenya, Section 3(3) of the Law of Contract, Section 44 of the Land Registration Act and Section 38 of the Land Act together define exactly when you can sue on a contract for disposition of land. Essentially, you cannot sue unless:
- The contract is in writing;
- Every Instrument that is part of the conveyance is executed by all parties, by signature or thumb print; and
- The parties’ signatures are attested to by an independent witness who is present when the instrument is signed.
These provisions highlight the vital role execution and attestation plays in a successful conveyance.
It is also worthwhile to note, that under Section 34 of the Advocates Act, only a qualified Advocate can draw conveyance instruments such as a Charge, Transfer of Land, Lease etc., otherwise the Registrar shall decline to register them.
a) Exceptions to the requirement for a contract for disposition of land to be in writing executed and attested;
- Contracts made in the course of a public auction.
- Creation/operation of a constructive trust – this occurs where a court issues an order in favor of a party that has been wrongfully deprived of its rights in a conveyance due to unjust enrichment or interference. The Court order is deemed an instrument of transfer (Conveyance).
b) How instruments are signed and attested by different persons/entities
- Individuals – by appending a signature, affixing a thumbprint or other mark as evidence of personal acceptance of the agreement by the parties and attestation by a witness present when the parties signed.
- Partnerships – signed by the partners or by a person appointed by the Partners and attested to by a witness.
- Companies – Instruments by companies are usually executed in the following ways;
- Execution in accordance to the articles – usually by affixing the seal in the presence of a director(s) and or company secretary
- Execution by authorized signatory(s) or by an Attorney (s) appointed by the Directors under resolution or under seal and witnessed by an Advocate, Judge, Magistrate or Notary Public.
iv. Statutory Corporations, offices and institutions – in accordance with the mandate prescribed under the enabling statute.
v. Societies, Associations, clubs and self-help groups – usually by the authorized officials of the institution in accordance with the establishing constitution.
Section 45(2) of the Land Registration Act requires parties to a conveyance to appear before a Registrar, Public officer or other prescribed person for purposes of identification and ascertainment that they executed the instrument freely and voluntarily.
a) Officers prescribed under the Act for purposes of verification of instruments
For instruments executed in Kenya;
- Judge or Magistrate.
- Registrar & Deputy Registrar of the High Court.
- The Registrar General and/or the Deputy or Assistant Registrar General.
- Administrative Officer.
- Superintendent of Prisons.
- Bank official
- For instruments executed in a foreign country – A Notary Public
b) How is Verification done
Verification is usually done by the officer in the form of a certificate in the instrument after execution and attestation. It contains the following information:
- The names of the parties to the conveyance;
- The date the parties appeared before the certifying officer;
- Whether the certifying officer knows the parties or if an identification document was produced and
- Confirmation that the parties voluntarily executed the instrument understood its contents and acknowledge the signatures or the marks on the instrument to be theirs.
By definition execution, attestation and verification sound simple. However there is a plethora of law and authorities on this subject alone, and it is more serious than it looks. The effect of an improperly executed, attested or verified instrument is that it will be rejected for registration. The conveyance process is incomplete without registration.
As you carry out Land transactions it is advisable to seek guidance from a qualified lawyer, specializing in the subject.
The law is meant to protect you and your property. We will help you interpret it. If you have any questions, email us.