Legal Review: Elements that can give rise to a Presumption of Marriage

The Elements that can give rise to a Presumption of Marriage are as follows; 

1. The parties must have lived together for a long period of time. 
2. The parties must have the legal right or capacity to marry. 
3. The parties must have intended to marry. 
4. There must be consent by both parties. 
5. The parties must have held themselves out to the outside world as being a married couple. 
6. The onus of proving the presumption is on the party who alleges it. 
7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive. 
8. The balance of proof is on a balance of probabilities. 

 

The Concept of Burden of Proof

The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.

Burden of Proof is used to mean an obligation to adduce evidence of a fact.  According to Phipson on the Law of Evidence, the term burden of proof has two distinct meanings
1. Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into ones way of thinking.  The persuasion would be to get the tribunal to believe whatever proposition the party is making.  That proposition of fact has to be a fact in issue.  One that will be critical to the party with the obligation.  The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if plaintiff they will not sustain a conviction and if defendant no relief.  There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.
2. The obligation to adduce sufficient evidence of a particular fact.  The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter.  This is the evidential burden of proof.  The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

Section 107 of Evidence Act
Defines Burden of Proof –
Of essence burden of proof is proving the matter in court.
(2) Refers to the legal burden of proof.

S. 109.   – Specifically exemplifies the Rule in S. 107 and it talks about proof of a particular fact.  It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence.  Whoever has the obligation to convince the court is the person said to bear the burden of proof.  If you do not discharge the burden of proof then you will not succeed in as far as that fact is concerned.
Cases that exemplify Burden of Proof
Ryde v. Bushell 
The defendant was seeking to rely on the defence of act of God and the court held that if a person wished to rely on defence of act of God one has to establish it through aid.

Omar Mohiddin V. Sikuthani 
 Where it is neither readily appreciated nor known that you are married to somebody the burden of proving that you are so married lies on you.  The total essence of proof is that the burden is on the one who wishes to prove that they are married
Hakam Bibi v. Mistry
Kimani v. Gikanga
The principle is that if you want to rely on personal law, you have to establish what that law is.  In Kimani a person sought to rely on customary law and if you are relying on customary law you have to establish what the law is. 

Commissioner of Income Tax v. Baku
The principle is the same as in Valabras Shamzi v. Commissioner of Income Tax  these two cases establish the principle that if you dispute tax on the basis that it is excessive, the burden of proof is on you.  It is not up to the Commissioner to establish that it is excessive but it is in your interest to adduce evidence before the case to determine to what extent it is excessive.
If you are the person with a legal obligation to establish a matter then the burden of proof is on you.

GENERAL RULE:
The general rule is that burden of proof is borne by the Plaintiff in Civil cases and by the Prosecution in Criminal Cases.

Joseph Mbithi Maula v. R
In this particular case the 1st Appellant was convicted for handling cows stolen by the 2nd Appellant.  The trial Magistrate said in the course of his judgment ‘None of the accused disputed the fact that the cows mentioned in the three counts belong to the Respondent owners and they had been stolen from their bomas during the material nights.  They did not dispute the identity and ownership of the cows therefore I find all this as facts.’  The High Court affirmed the conviction but the court of Appeal found that the statement of the trial magistrate was a mis-direction.  In the words of the Court of Appeal it was up to the prosecution to prove that the cows were stolen.  In criminal cases the burden of proof has to be beyond reasonable doubt, having doubt or suspicion is not enough.  In the words of the Court of Appeal, the mere fact that the accused kept quiet did not approve of the matters.
Alois Nyasinga v. R
In that case which was a murder trial, there was evidence that at the time that the appellant committed the offence he was drunk.  He had stabbed the deceased the deceased in the neck inflicting him with a fatal wound.  The trial judge directed himself and the assessors that it was for the appellant to prove that he was so inebriated as to be unable to form the intent to kill.

On appeal, the decision of the first court was reversed by the Court of Appeal who said that the trial court had misdirected itself and the assessors on the matter of intent.  The Judge should have explicitly told the assessors that it was not for the Appellant to prove that he was so drunk he could not form intent to kill or hurt the deceased.  It was the duty of the prosecution to prove that the Appellant was not so affected as to be incapable of forming intent.  even though if a person is trying to establish a defence and one wants the court to excuse them from having done something, say murder and you want to plead self defence, or insanity, while it is incumbent for you to bring the matter before the court, it does not discount the prosecution’s duty to establish the intent.

Woolmington v. DPP
The accused was charged with the murder of his wife. He gave evidence that he had accidentally shot her.  the trial court directed the jury that once it was proved that the accused shot his wife, he bore the burden of disproving malice aforethought (intention).  On Appeal to the House of Lords it was stated that the trial court direction was not appropriate, that it was a misdirection, and stated as follows: ‘throughout the web of English criminal law one golden thread is always to be seen. That is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exception.  He continues to say that no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the law of England and no attempt to whittle it down can be entertain.”

In Woolmington you will see intimations as exceptions to the general rule.

BURDEN OF PROOF IN CIVIL CASES
The principle is that burden of proof in civil cases rests with the plaintiff.

Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C 154
In this case the plaintiff; Charterers of a ship claimed damages from the owners for failure to load.  The defendants pleaded that the contract had been frustrated by destruction of the ship owing to an explosion the cause of which was unclear.  Such frustration would have concluded the case in favour of the defendants in the absence of any fault on their part.  The trial court held that the onus of proving or the burden of proving that frustration was induced by the defendant or by their default lay on the plaintiffs.  The Court of Appeal reversed this finding holding that it was up to the defendants to establish that the frustration was not induced by their default.  The case went to the House of Lords where the Appeal was allowed the House of Lords holding that the burden of proving that there was default on the part of the owners lay upon the plaintiffs.

What we are saying that burden of proof by and large in civil cases is going to lie on the plaintiff.

Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79
The defendants were guilty of unexplained loss of a Chinese carpet which had been delivered to them for cleaning and which belonged to the plaintiff.  A clause in the contract signed by the plaintiffs would have exempted the defendants from liability for negligence but not for any fundamental breach.  The plaintiff sued the cleaners for loss of carpet.  The trial court gave judgment against the cleaners.  They appealed and it was held on appeal that in a bailment contract when a bailee seeks to escape liability on the ground that he was not negligent, or that he was excused by an exception or limitation clause, then he must prove what happened to the goods.  Having failed to satisfactorily explain the circumstances surrounding the loss of the carpet, the carpet cleaner was liable.

Burden of proof is on plaintiff in civil cases.

EXCEPTIONS TO THE GENERAL RULE IN CIVIL CASES
What are the circumstances you have the burden of proof lying on the respondent?   These are provided for in S. 112 which relates to facts within the special knowledge of a party to the proceedings.
1. It is to the effect that if it is alleged that the facts are especially within the knowledge of a party, the burden of proving those will lie on such party.
 So it may happen that in the course of proceedings, there are certain facts that happen to be within the special knowledge of the respondent and the burden on prove will be on the respondent.

The second exception is contained in S. 115 of Evidence Act which relates to disproving apparent special relationship.  This section is to the effect that,
2. When there is an apparent relationship between 2 or 3 people, the burden of proving that there is no such relationship is on the person alleging that the relationship does not exist. 
For instance if the question is whether there is a party averring that that there is no relationship between for instance a landlord and tenant.
S. 116 this relates to disputing ownership.

3. This section is to the effect that when you are shown to be in possession of anything, the burden of proving that you are not the owner of that which you possess will be on the person alleging that you are not the owner.  This exception is explained away on the difficulty that one might visit on the people who would be under threat of people coming in and disputing ownership.
Section 117 which deals with prove of good faith
4. Where there is a question as to the good faith of a transaction between parties one of whom stands to the other in the position of active confidence, the burden of proving good faith of the transaction is on the person who stands in the position of active confidence in relation to the client.

EXCEPTIONS TO GENERAL RULE IN CRIMINAL CASES
The burden of proof lies in the prosecution
The constitution in S. 77 2 (a) provides that a person charged with any offence is presumed to be innocent unless he pleads guilty or is proved guilty by the prosecution.  This provision imposes burden of proof on the prosecution.  It is up to the prosecution to prove the guilt of the accused unless the accused pleads guilty.  Where one pleads guilty, there is no contestation.

To buttress this presumption is S. 77 (12) (a) nothing in any law shall be construed as being in conflict with S. 77 (2) (a) if the law in question imposes the burden of proof in specific parts on an accused person.  This section saves the statutory provisions that there might impose burden of proof on accused persons on specific facts.
What are the instances where specific facts require to be proved by an accused?
S. 111 (1) K. E.A.
1. If you are charged with an offence and you are in a position of claiming that you are exempted from liability for that kind of offence, it is your duty to bring the circumstances to the notice of the court.  It is incumbent upon you to prove a fact.  There is a derogation that the burden of proof in criminal cases lies on the prosecution.  For instance if you have diplomatic immunity you must bring it to the attention of the court for the exemption.

R. .v, Hunt (1987) 1 ALR 1
The accused was charged with unlawful possession of a prohibited drug.  The relevant statute provided that it would not apply to any preparation containing not more than 0.2% of the drug.  The defence submitted that there was no case to answer since the prosecution had not adduced evidence as to the percentage of the prohibited substance found on the accused.  The defence was overruled and on appeal the court of appeal dismissed the appeal but at the House of Lords it was stated that
1. A statute can place a burden of proof on an accused person and it can do this either explicitly or implicitly.
2. A statute may be construed as imposing the burden of proof on an accused person but such a construction depends on the particular legislation.
3. The statute however cannot be taken to impose the duty on an accused to prove his innocence in a criminal case.
4. Public policy in this particular case favoured the position that the burden of proof was on the accused person.

The Appeal was allowed.
2. S. 111 (2) (c) intoxication or insanity

2. The accused bears the burden of proof of intoxication or insanity if an accused person claims that he was so intoxicated as to be insane, he has to prove that but the duty of the accused only goes as far as proving that he was intoxicated and does not go to the level of proving that he could not form an intent.

Godiyana Barongo s/o Rugwire v. R
Defence of insanity through intoxication
The burden resting upon an accused person when attempting to rebut a natural presumption which must prevail until the contrary is proven will never be the same as that resting upon the prosecution to prove the facts which they have to establish.  It will not be higher than the burden which rests on a plaintiff in civil cases.   

Nyakite s/o Oyugi v. R[1959]
In this case the evidence of the defence and the prosecution showed that the accused was intoxicated but the accused did not raise intoxication as a defence.  The trial judge said that the burden of raising a defence of intoxication so as to negative intent was on the accused person.  On Appeal, it was held that this statement was a misdirection and that the onus of establishing a defence is not on an accused person, if there is evidence of intoxication the court must consider it and determine whether it negative intent.  The prosecution has to show that the intoxication was not as high as to negative intent.

Nyamweru s/o kinyaboya v. R. (1953)
The appellant was in an advanced state of intoxication when he killed his wife with a knife.  He was convicted of murder.  On Appeal it was held that whilst the plea of intoxication is a matter for the defence, there can be circumstances pointing to such a condition arising out of the prosecution case.  The use of a lethal weapon may indicate a malicious intent but it is not conclusive of an intent to murder.  It gave an example where the accused is so drunk that they are not able to form the intent not withstanding the use of a lethal weapon.

Malungu s/o Kieti v. R
Where the accused was convicted of murder and evidence established that the appellant was drunk by the time he killed.  The assessors were of the opinion that the appellant was incapable of forming the intent necessary to constitute the offence of murder but the trial judge took the view that the onus of rebutting the presumption that he was capable of forming the necessary intent to kill was on the appellant.  On Appeal it was held that the burden of proving that an accused is capable of forming the intent necessary to constitute the offence of murder always remains on the prosecution.  So even when the defence raises the defence of intoxication, the burden of prove is still on the prosecution.

R  v. Kamau s/o Njoroge
R v. Saidi Kabila Kiunga
There are other statutes apart from the Evidence Act that place burden of proof on the accused.
1. The Public Order Act which is to the effect that the burden of proving lawful or reasonable excuse or lawful authority is upon the person alleging the same.
2. The Prevention of Corruption Act Cap 65 which provides that any money paid or gift given to a public servant shall be deemed to have been paid or offered corruptly as an inducement or reward unless the contrary is proved.
3. The Immigration Act, which is to the effect that in any proceedings under the Immigration Act if the question in issue is
(i) whether a person is or is not a citizen of Kenya, or
(ii)  whether or not a person is a diplomat or wife of child of such or
(iii) whether or not any person has been issued or granted a passport, certificate, entry permit, pass, authority or consent under the Act or
(iv) whether or not any person is at any time entitled to any such issue of right the burden of proof will lie on the person contending that they are so entitled.
4. The Public Health Act, - every person while suffering from a venereal disease in any communicable form or continues in employment in or about any factory shop, hotel, restaurant, house or other place in any capacity entailing the care of children or handling of food of food utensils intended for use of consumption by any person shall be guilty of an offence unless he proves that he did not know or suspect or had no reasonable means of knowing or suspecting that he was so suffering.  It is an offence for any person to employ such a person, the defence would be for the employer to prove that they did not know that the employee was sick.
5. Stock and Produce Theft Act – any person who has in his possession any stock reasonably suspected of being stolen or unlawfully obtained shall if he fails to prove to the satisfaction of the court, that he came by the stock lawfully shall be guilty of an offence and liable to conviction.
6. Wildlife Conservation & Management Act – it is an offence to be found with or to be dealing with Game Trophies and the person charged under this Act has the burden of proving lawful possession for dealing with such gain.

Those are the exceptions to the general rule that he burden of proof lies on the prosecution.
Section 108 E.A incidence of the burden of proof.  It lies on that person who would fail if at all …

STANDARD OR DEGREE OF PROOF
The question is what level of cogency or conviction should evidence attain before the court can act in favour of the person who bears the burden of proof.
In criminal cases when the burden of proof is on the prosecution the standard of proof is beyond reasonable doubt.  The question has arisen as to what is reasonable doubt?
Miller v. Minister of Pensions [1947] 2 ALL ER
In this case Lord Denning tried to explain what reasonable doubt would mean he said ‘the degree is well settled.  It need not reach certainty, but it must carry a high degree of probability.  He continues ‘proof beyond reasonable doubt does not mean proof beyond a shadow of doubt the law would fail to protect the community if it admitted fanciful probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with a sentence ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt.’
Lord Denning continues “it must carry a reasonable degree of probability but not as high as is required in criminal cases.  If the tribunal can say ‘we think it more probable than not,’ the burden is discharged but if the probabilities are equal, the burden is not discharged.  Degree of cogency in burden of proof required is less than in criminal law.

Other people have said that reasonable doubt is the doubt of men of good sense not of imbeciles or fools.
In criminal cases where the accused bears the burden of proof, we have already stated that the standard of proof is on a balance of probability.

The burden of proof in civil matters is on a balance of probabilities.
Where you have cases of fraud for instance if the allegation involves criminal conduct, the degree required is going to be higher.  There is a spectrum level of degrees.

R.G. Patel v. Lalji Makanji [1957] E.A. 314
The court in this case stated that allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities.
In a matrimonial offence, there is a variation in the standard of proof.  If you are relying on adultery to get your divorce, the standard of proof is beyond reasonable doubt, you have to catch them flagrante delicto.
In Wangari Mathai v. Andrew Mathai it was stated that if  you are relying on the offence of adultery the court must prove guilt beyond reasonable doubt or so as to feel sure that the guilt had been proved.  The Appellant had argued that there was no direct evidence of adultery and on Appeal it was argued that the degree of adultery had not been proved but the decision was upheld.  The court relied on circumstantial evidence to find guilt.

Maherdavan v. Maherdavan [1964] p233 [1962] 3 ALL ER 617
A ceremony had been celebrated between the parties in Ceylon. Two of the requirements of the local law were solemnisation of the marriage by a registrar, either in his office or in another authorised place and, during the ceremony, an address by the registrar to the parties on the nature of the union.  The parties cohabited as if man and wife for a short period of time and the husband acknowledged the wife as such.  Seven years after the first ceremony, the husband went through another ceremony of marriage with another woman in England and the validity of the first marriage came into question.  According to the marriage certificate, the marriage had been solemnized by a registrar in his office, but the wife gave evidence that the marriage had taken place at her patents house and there was no evidence of the requisite address by the registrar of parties.  Rejecting as irrational legal chauvinism an argument of counsel for the husband that there was no presumption in favour of a foreign marriage the establishment of which would invalidate a subsequent English one, Sir, Jocelyn Simon P applied the presumption and held the foreign marriage to be formally valid. 
In 1980, T and M were married in London, UK.  In 1985, the couple returned to Kenya, whereafter a short stay, M proceeds to USA for post-graduate studies.  For 7 years, T does not hear from M.  In 1993, T gives up on waiting for Ms’ return.  She (T) meets with F and out of a desperate love they get immediately married.
Shortly thereafter, T meets with J, an old friend just returned from the USA.  J confirms to T that M is living in the US with an American lady.  In 1996, T sues F for divorce.  In his defence, F asserts that their marriage is a nullity because in 1993, T was still legally married to M.  Unfortunately F have been married previously to A in 1978 and that A is still alive.

Advice T and F.
The presumption of marriage will arise where there has been a ceremony of marriage which has been subsequently cohabitated.  If the parties had capacity to contract a marriage then the law presumes that they are validly married.  Presumption of marriage can also be established through ceremony and cohabitation.  The formal validity of a marriage depends upon the lex loci celebrationis i.e. the law of the place where one purports to have gotten married and failure to comply with the formal requirements of the local law may make a marriage void.  Once it is admitted that a marriage was celebrated between 2 persons who intended to marry then the formal validity is presumed to exist. 

On advice to T, beginning with the marriage of T and M, it will be presumed that T and M were validly married in London in 1980.   The presumption of marriage is a very strong presumption, rebuttable only by strong evidence that will go beyond a mere balance of probability.  For instance in the decided case of Piers V. Piers the couple got married in a private dwelling house while the law required as a prerequisite for the validity of such a marriage that a special licence be obtained.  The Pierses did not get that kind of licence and when the marriage turned sour, the validity of the marriage was questioned. It was held that the presumption of marriage in favour of the legality of marriage is not to be lightly repelled.  The evidence against it or evidence to rebut it must be strong, distinct, satisfactory and conclusive.  The presumption of marriage is not lightly repelled and requires evidence that can satisfy the court beyond reasonable doubt as was held in  Mahadervan V. Mahadervan  where was held that the court must be satisfied beyond reasonable doubt if a presumption of marriage is to be rebutted.
Evidence of a prior marriage may suffice to rebut a presumption of marriage and therefore if T is able to prove that M may have been married previously to A in 1978, this would nullify T’s marriage to M in London.  If M had been previously married to A it would mean that the marriage between T and M was a nullity and therefore F cannot assert that T had been legally married to M when they got married and F therefore has to consider giving M her divorce as it would mean that the marriage to M was void and whether M is alive or not, T was legally married to F and was thus entitled to a divorce. T has to have strong evidence of for instance a marriage certificate and corroborating evidence to prove that M had been previously married to A which would make her marriage to M void and her marriage to F legit thereby earning her a divorce from F. 
In Chard V. Chard (1956) 2 AER 259 parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds that the husband had been through a marriage ceremony in 1909.  The first wife in respect of whom there was no evidence of ill health or registration of death was last heard of in 1917 and would be aged 44 in 1933.  There were reasons which might have led her not to wish to be heard of by her husband or his family in that between 1917 and 1933 the husband was continually in prison.  The question was whether one could presume that she was dead and therefore hold this marriage of 1933 valid.  The court held that there was no evidence of a person who would have been likely to have heard of the first wife between 1917 and 1933 and consequently the presumption of death was inapplicable in which case the nullity would not go through but they would have to bring in more evidence.
In WANJIKU V. MACHARIA [1968] Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage certificate. The two had gotten married in 1963, stayed together as husband and wife until the relationship turned sour. She had testified on oath that she had been married to another man in 1953 or thereabouts.  The court held that they would not presume marriage because all that was required to rebut presumption of marriage by cohabitation was some evidence that leads the court to doubt the validity of marriage.  In the words of the court, Wanjiku had no validity of marriage.
F wants his marriage to  T declared a nullity on the fact that M who was validly married to T in London in 1978 is not dead since J claims to have seen him living with an American woman in America.
Section 118 (a) of The Evidence Act Cap 80 Laws of Kenya states that where it is proved that a person has not been heard of for seven years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.
For presumption of death to be established, the court will consider whether there are people who would be likely to have heard from the person presumed to be dead in over seven years, and whether they have actually heard from that person and whether all due inquiries have been made as appropriate in a given circumstance.
The next thing that the court will want to consider is whether M is still alive and whether he has had communications with people that he ought to be in touch with namely family and relatives or can M be presumed to have died since T had not heard from him in over 7 years.  The court will need prove that the people who could have heard from M have not heard or seen M in over 7 years.  The court will also need evidence that T has made all efforts to reach M and that M has not been heard from in over 7 years, and that all efforts to reach M have been fruitless. 
Is the evidence of J that he met M in United States living with another woman credible?  Can J be called to give evidence that M is alive and living in the United States with another woman?  If J can be found and agree to testify, the Judge may be convinced by J’s evidence not to presume that M is dead so it will depend on the trial Judge. 
F has to rebut the presumption that his marriage to T is valid with the argument that T was validly married to M who is not dead and who is living in the United States of America with an American woman.  To be able to rebut the presumption that M is still alive, F will have to find J who is the last known person to have seen M and who can rebut the presumption that M is dead.  The rebuttal must be cogent and has to be supported by evidence.  The court must be satisfied beyond reasonable doubt in order for the presumption to be rebutted.  Evidence that T had been married to M and that that marriage is still valid may suffice.  F has an uphill task of proving that M is still alive without the evidence of J and will have to look for J to give evidence that M is alive in the United States of America and living with an American woman to rebut the presumption that M can be presumed dead.

The outcome will depend on what kind of evidence T has that M could have been married to A before they met and if the evidence is cogent, the marriage between T and m will be nullified as this means that M was already married to A when he met T and the marriage in London to T is therefore invalid.   In the absence of evidence from T about M’s prior marriage to A, F will have to find J to give evidence to rebut the presumption of the death of M to prove that his marriage to T was void and therefore a divorce will not be necessary.

The Role of Advocate in the purchase of Property/Land

 

The role of the Firm/Advocate is to enable the client to make the right choices and deliberations regarding the intended property being purchased and get value for money. The Advocate plays the role of a manager in the entire transaction whereby all the talking/drafting is to be done by him/her on behalf of the client. The Law of Contract stipulates that all the contracts that relate to property ought to be in writing to ensure their enforceability, and this is possible through the advocate to cushion the client from dubious property deals.

The Advocate should in this case prepare the sale agreement, title documents, and approve the transfer. Some of the crucial details to be keen with include:

i. The details of any mortgage or charge of the property – if there is – the name of the lender and outstanding balance.

ii. The expected date of completion of payment especially in cases where the purchase is by installments.

iii. The procuring execution of the conveyance (transfer of property), attesting documents, receiving, and accounting for the proceeds of the sale to his/her client. Notably, the advocate for the buyer will require similar information and further advice on finances, legal costs, and possible future liability for taxes.

iv. As a purchaser, your advocate must be vigilant to cushion you from possible fraud lest he or she is wrapped for professional negligence.

v. The Advocate must carry out an official title search of the property at the Ministry of Lands towards ascertaining the legal owner.

vi. The Advocate should scrutinize the search certificate issued by the Ministry, approve the sale agreement, and prepare the transfer.

vii. The advocate will also stamp the legal documents and forward them for registration as required.

viii. The Advocate also has to obtain and pay the purchase money to the advocate representing the seller of the property.

ix. Further duties of the Advocate include obtaining a rates clearance certificate, land rent certificate, and consent of the Commissioner of Lands.

x. Others are obtaining consent from the land control board, town clerk and trustees, public corporation/authority where necessary.

It is worth noting that the procedure followed in purchasing property will depend on the type of property in question. The types of property include the purchase of a completed property (ready for occupation), vacant land, or off-plan property. The purchase of completed property or vacant land is quite straightforward compared to purchasing an off-plan property where one is required to consider the payment of installments to the vendor/developer.

Notably, the completion period for purchase of a completed property/vacant land is defined by the parties to the purchase agreement but most occasionally range from 90 days from the date that the agreement has been signed for the purchase and deposit paid. For the off-plan property purchase, the purchase price is payable in the form of installments as will be agreed between the parties, that is, the purchaser and the developer, until the project has been completed.

Further, that there are two regimes of land tenure in Kenya, the freehold property (that gives the owner of the title absolute ownership of the property and does not attract ground rent), and the Leasehold property (which confers to the owner a limited period of time to own the property which can be extended. The Kenyan constitution only allows leases of 99 years to non-citizen).

3.0 Legal Due Diligence

Before purchasing a property in Kenya, the buyer should conduct due diligence on the given property through the help of a qualified professional such as the advocate, surveyor, or architect. The potential buyer has to identify all the physical defects in the property which is only possible through the apparent help of qualified professionals.

The caveat emptor (buyer beware) rule imposes an obligation on any person intending to acquire an interest in the property to investigate the same. An official search should be conducted at the relevant Lands Registry to ascertain the legality of the title. An official search will show who the registered proprietor is and other material aspects like, restrictions and encumbrances (if any), and check for any land rates that may have accrued.

It is also advisable that the buyer ascertains that the property is not on a road reserve or riparian/wetland area. A look into the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (the Ndung’u Report) is also recommended to ascertain if the property is listed among those that were irregularly or illegally acquired.

It is also critical that a survey or physical inspection of the property is carried out by a qualified and licensed surveyor. This is important to identify the property beacons and boundaries to avoid disputes with owners of adjoining properties.

3.0 Contractual Stage/Sale Agreement

After parties have negotiated and agreed on the terms of the transaction like the purchase price, completion date among others, the terms are then crystallized in a written agreement. The Law of Contract Act (Chapter 23 of the Laws of Kenya) requires that a contract for disposition in the land should be in writing, signed by all the parties involved, and the signatures of the parties attested to by a competent witness. In most cases, the sale agreement will be prepared by the vendor's advocate. The Buyer should seek the services of an independent Advocate to ensure that his or her interests and rights are protected in the agreement.

In instances where either party is out of the country, the sale agreement can be signed by way of counterparts or by an attorney appointed by a duly constituted power of attorney to act on behalf of the party who is not present in the country.

4.0 Valuation

For purposes of stamp duty, an application for valuation must be made to the Government Valuer who then prepares a valuation report after making a site visit. The Government Valuer determines the true value of the property in the open market at the date of the transfer. The stamp duty payable is then calculated at a rate of 2% or 4 % depending on the nature of the property being acquired and the nature of the transaction.

5.0 Payment of Stamp Duty

The buyer is responsible for paying stamp duty, a tax levied by the Government based on the property value. Stamp duty is charged on the amount assessed by the Government Valuer after valuation or the purchase price, whichever is higher. The applicable rate of stamp duty is as follows depending on the nature of the property and its location:

· 4% for leasehold property mostly located in urban areas, municipalities, or cities.

· 2% for freehold land which is mostly agricultural land located in rural areas; and

· 1% for a property registered under a company and the transfer is by way of shares rather than title.

5.1 Commercial Property

For the purchase of a commercial property, the stamp duty/land tax is calculated as follows:

· 4% of the purchase price

· 1% if a property is registered as a company and transfer is by way of shares rather than the title

N/B- VAT is payable on the acquisition of trading commercial property. The current prevailing rate is 16% of the purchase price. This is in addition to paying the Stamp Duty.

6.0 Registration

Registration of the title is the last and most important stage when buying a property in Kenya. Registration is undertaken after completion. Completion will happen after the buyer pays the purchase price in full in exchange for the completion documents from the seller. The completion documents are then lodged at the Lands Registry for the transfer of ownership to be effected and a new title is issued thereafter. Once a buyer acquires a title of the property in their name, it is conclusive evidence of ownership. As for the Registration and disbursement fees, the Buyers are generally responsible for the cost of registration of titles in their name(s) together with other disbursement costs as may be advised by the seller’s advocate.

7.0 Agency fees

The agent is paid by the party who instructs them; either by the seller who instructs the agent to market their property or the buyer who instructs the agent for the property acquisition. The fee is on a scale capped at a maximum of 3% of the property’s value.

8.0 Legal fees

The seller and buyer each pay for the own legal fees as stipulated in the Advocates (Remuneration) (Amendment) Order of 2014. However, there is an exception where buyers pay legal fees for both parties when purchasing an apartment or property comprised in the development of many units. This is common practice informed by the fact that the seller's advocate registers the leases on behalf of the buyer.

8.0 Additional Information

Ownership of Property by Foreigners

Foreigners can own without any restrictions leasehold commercial and residential properties located within urban centers, municipalities, or cities. The Kenyan Constitution however limits foreigners to holding leasehold titles for a maximum of 99 years. Foreigners are however not allowed to own freehold properties including agricultural land.

Ask A Lawyer Series: What is the due diligence cheklist for the purchase of land?

✅ Land Purchase Due Diligence Checklist – Kenya

📄 Legal & Ownership

• Verify original title deed.

• Confirm seller is the registered owner (via land registry search).

• Ensure no encumbrances, disputes, caveats, or loans on the title.

📍 Location & Accessibility

• Assess proximity to main roads, schools, hospitals, and public transport.

• Check ease of access by vehicle or foot.

🌍 Topography & Environmental Factors

• Inspect terrain for slopes, flooding, or waterlogging.

• Test soil quality if for farming.

• Confirm land is not part of wetlands or environmentally restricted zones.

⚡ Utilities & Infrastructure

• Check availability of electricity and water connections.

• Confirm sewage and drainage systems are in place or feasible.

• Verify internet and mobile network coverage.

🏗️ Zoning & Land Use

• Confirm zoning designation (residential, commercial, agricultural).

• Check for building restrictions or upcoming government projects.

• Obtain approvals from county planning office if required.

💸 Pricing & Additional Costs

• Compare price with nearby similar plots.

• Budget for:

  • Stamp duty

  • Legal fees

  • Surveyor charges

  • Land control board consent (if applicable)

  • Development levy or taxes

📈 Growth & Appreciation Potential

• Investigate upcoming roads, developments, or infrastructure projects.

• Assess economic activity in the area for long-term viability.

🛡️ Security & Community

• Review local crime rates.

• Check for active residents’ or estate associations.

• Evaluate general safety and upkeep of the neighborhood.

📝 Contracts & Legal Process

• Draft formal offer and sale agreement through a licensed advocate.

• Confirm seller’s identity and conduct due diligence on their company (if applicable).

• File land transfer with relevant authorities.

📏 Survey & Documentation

• Engage a licensed surveyor to confirm plot boundaries.

• Verify land size matches the title.

• Collect:

  • Title deed

  • Survey plan/map

  • Encumbrance certificate

  • Zoning and planning approvals

Key Factors to Consider When Buying Land in Kenya

Buying land in Kenya—especially in urban areas like Nairobi—requires careful due diligence to avoid legal, financial, and development risks. Below are the critical considerations:

1. Title & Legal Ownership

Confirm the authenticity of the title deed and verify the seller’s ownership through a land registry search. Ensure the land is free of encumbrances, disputes, or caveats.

2. Location & Accessibility

Choose land near essential amenities (roads, schools, hospitals). Accessibility and transport options directly impact land value and development potential.

3. Topography, Soil & Environmental Factors

Assess the terrain for slope, flood risk, and suitability for construction or farming. Check for environmental restrictions or hazards such as wetlands or erosion-prone zones.

4. Utilities & Infrastructure

Check availability or cost of connecting to water, electricity, internet, and sewage. Well-serviced plots generally appreciate faster and are more viable for development.

5. Zoning & Land Use Regulations

Ensure the land’s zoning designation (residential, commercial, agricultural) aligns with your intended use. Consult county government records for restrictions or upcoming projects.

6. Price & Hidden Costs

Compare prices with similar properties in the area. Account for additional expenses like stamp duty, legal fees, surveyor costs, and development charges.

7. Future Growth & Appreciation

Research planned infrastructure projects or economic developments nearby. These often indicate areas with high growth and value appreciation potential.

8. Security & Neighborhood Profile

Consider the safety of the area, presence of security services, and general neighborhood reputation. Safe, organized communities offer better value retention.

9. Formal Agreements

Avoid verbal agreements. Engage a licensed advocate to prepare proper sale agreements and ensure compliance with all legal procedures.

10. Survey & Documentation

Hire a professional surveyor to confirm boundaries and size. Collect all necessary documents including the title deed, survey map, and zoning approvals.

#END 

Ask A Lawyer Series: Is manual registration is still in use at the Nairobi Land Registry in Kenya?

Yes, manual registration is still in use at the Nairobi Land Registry in Kenya, though its application is limited and increasingly rare due to the introduction of electronic systems.

Current Registration Landscape

The Ministry of Lands and Physical Planning launched the National Land Information Management System (NLIMS), also known as Ardhisasa, to digitize land transactions. This system was initially rolled out in Nairobi and the Central Registry, with plans to expand nationwide. However, as of recent reports, the system has faced significant challenges, including technical failures and incomplete data migration, leading to disruptions in land transactions .(wmoadvocates.com, agoadvocates.com, nation.africa)

Manual Registration Scenarios

Despite the push towards digitalization, manual registration remains a fallback option in certain circumstances:

• Incomplete Digital Records: Properties with unverified or missing records in the digital system may require manual processing.
• System Failures: Persistent issues with the electronic system may necessitate manual registration to avoid transaction delays.
• Specific Registries: Transactions involving properties under the Government Lands Registry (GLA) and Central Registry (RTA) are still processed manually .(wmoadvocates.com)
• Legal Instruments: In some cases, the Registrar may require the physical presentation of original documents for verification, even within the electronic system .(mman.co.ke)

Conclusion

While the Nairobi Land Registry has made strides towards digitization, manual registration remains a viable and sometimes necessary process, especially when digital systems are inoperative or incomplete. Stakeholders should be prepared for both scenarios and maintain flexibility in their approach to land transactions.

Ask A Lawyer Series: Why Conduct a Land Search?

Conducting a land search at the requisite land Registry or using Ardhisasa is essential for several reasons:

• Verifying Ownership: It helps confirm the rightful owner of a property, protecting you from potential fraudulent transactions.
• Identifying Encumbrances: Land searches can reveal any existing liens, mortgages, or easements that may affect the property’s value or use.
• Assessing Property Boundaries: The records at the Registry or Ardhisasa provides accurate information on property boundaries, preventing disputes and ensuring that you’re purchasing the correct land.
• Due Diligence: Before investing in a property, conducting a thorough land search is a crucial step in your due diligence process.