PAST PAPERS

2022

1a.) On the Completion Date, the Vendor’s Advocate provides all the completion documents listed
in clause (b) above. The Purchaser’s Advocate quickly realises that the LCB Consent is missing. He
raises the issue with the Vendor’s Advocate who retorts that it was not under the list of items
under clause (b). The two advocates descend into an argument. As an intern at one of the law
firms involved advise the advocates on the proper position and which party is obliged to procure
the LCB Consent in light of the Sale Agreement clauses shared (20 marks).

● The Land Control Board Consent requirement is found in the Land Control Act Cap 302. The
act, under section 6 regulates the development, use and subdivision of agricultural land
within the land control areas. Land control areas have been defined to means an area to
which the Minister has applied the Act. Section 3 of the act stipulates that the Minister may,
by notice in the Gazette, apply the Act to any area, if he considers it expedient to do so.
Therefore, only agricultural land within land control area would require a consent of land
control board. The above agreement does not stipulate the given land as a control area
hence a land control board consent is not needed.

● In addition, the agreement above stipulates that where such inconsistency occurs the
provisions of this Agreement shall prevail. Therefore since the LCB Consent was not part of
the required documents within the agreement,…….

1b.) Discuss the relevance of the Spousal Consent and Rates & Rent Clearance Certificates as
completion documents

Spousal Consent

● Spousal consent was previously provided under S.93 of the Land Registration Act. The
amended S 93 deems property acquired during the subsistence of a marriage as
matrimonial property. Specific spousal consent is required under S.79(3) of the Land Act
which states that ‘A charge of a matrimonial home, shall be valid only if any document or
form used in applying for such a charge, or used to grant the charge, is executed by the
chargor and any spouse of the chargor living in that matrimonial home, or there is
evidence from the document that it has been assented to by all such persons’. ‘Spouse’ is
defined under s.2 of the Marriage Act 2014 as a husband or wife. Consent of both
spouses is also required under section 12 (1) of the Matrimonial Properties Act in the
case of any alienation of matrimonial property (whether by way of sale, gift, lease,
charge or otherwise) during the subsistence of a monogamous marriage.
Rates

● Rates are payable under the provisions of the Rating Act, Cap 267 on each parcel of land.
Whereas it is not mandatory to produce the rates clearance certificate at the point of
registration, certain Land Registries still insist on its production and must be availed at
the time of registration. The person liable to pay the rates is the owner/proprietor of the
land and must make an application to the relevant county at a fee. Although no rates
clearance certificate is required for charges.
Rent clearance
 ● It is issued by the Land Commission after payment of Land Rent and applies only to
leasehold properties. A rent clearance certificate must be produced when transferring
or creating an interest in land unless the rent is a peppercorn

2. (i) The certificate of title as a document of title is indefeasible and can only be annulled by a
court of competent jurisdiction. With the aid of case laws, explain two instances where the
certificate of title can be annulled (10 marks).

● Section 26(1) of the Land Registration Act states that ‘…the title of that proprietor shall not
be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party;
or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a
corrupt scheme.”

● In addition, Registration Land Act first titles are indefeasible. Section 43(1) of Registered
Land Act (CAP 300) Laws of Kenya (repealed) states that “Subject to subsection (2), the court
may order rectification of the register by directing that any registration be cancelled or
amended where it is satisfied that any registration (other than a first registration) has been
obtained, made or omitted by fraud or mistake”. This was also held in the case of Opiyo vs
Obiero.

(ii) Discuss the allotment letter as an analogous instrument to the certificate of title (5 marks).

● There are 6 methods of allocation of public land as provided in Section 3 of the Land
(Allocation of Public Land) Regulations 2017. These methods include public auction,
application confined to a target group of persons/groups, public notice of tenders,
public drawing of lots, public requests for proposals and public land exchange of equal
value. An allotment letter is a document issued by the National Lands Commission
pursuant to allocation of public land to an individual. See Form LA 5. Allotment of public
land come conditionally, which conditions ought to be fulfilled by allottees in order to
obtain title to land. An allotment letter is not a certificate of title.

3. (a) Due diligence on property is comprised of various actions intended to confirm the
veracity of (i) ownership (ii) existence, status and condition of the property and (iii)
location and acreage of the property, among others. Discuss each way in which you would
undertake due diligence to confirm items (i), (ii) and (iii) (9 marks).

To carry out due diligence involves searches, correspondence and survey file perusals, an
inspection of property/site visits, perusal of land reports, authentication of titles and identity
documents.
Searches – I would undertake an official search at the land registry and the companies registry
on the documents required, amount payable and duration.
● Correspondence and survey file perusals
- Inspection and perusal of correspondence file at land office
- Request for greencard – record of all entries on the land/lessor
 - Request for white card – record of all entries on the leasehold
- Request for adjudication record – record of land adjudication on parcel
- Inspection and perusal of survey file – RIM/Deed Plans

● Inspection of property/site visits

- Physical inspection of the property
- Identification of patent defects- identifiable from a reasonable examination of
the property
- Establishing beacons
- Conversation with neighbours and local administration
● Due diligence out of an abundance of caution
- Litigation history
- Ndungu land report
- NLC Reports
- Gazette Notices
- Conversation with local conveyancing advocates and clerks
- Information conversation with officials at lands registry
- The doctrine of bona fide purchaser for value without notice and due diligence
(b) Discuss two ways in which you can undertake a desktop due diligence on a piece of
property (6 marks).

4. (i) Discuss any two unique duties of an Advocate of the Bank in a financed purchase of property
where the Bank is providing the financing to a third-party Purchaser (10 marks).

(ii) Explain a Power of Attorney and discuss its use where Banks finance purchase of properties (5
marks).

5. (i) Explain the implication of a succession suits to conveyancing transactions bringing out at
what point the transfer can take place (5 marks).

(ii) Explain the role of the Vendor’s and Purchaser’s advocates with respect to property the subject
of an ongoing succession suit until successful transfer to the Purchaser (10 marks).