INTRODUCTION TO

CONVEYANCING LAW
Conveyancing Law
E.Mulwa
Lecture 1
INTRODUCTION
• Conveyancing is the area of an Advocate’s business that deals with
the alienation of an interest in land from one person to another by
means of an appropriate instrument or document.
• It can also be described as the act of drafting and preparing legal
instruments especially those that transfer an interest in real
property.
• Conveyance is an instrument transferring an interest in land from
one person to another. Examples of conveyances are:
• Mortgage or Charge
• Transfer
• Lease
Introduction continued

• Conveyancing relates to land or an interest in land only and there are two
parties to the transaction, the transferor and the transferee.
• The main work of a conveyancer is to draft, to construct and utilize the
instruments for creating and transferring interests in land and to ensure that
the person who makes the transfer has a marketable title, making enquiries and
searches, confirm the completion of the transaction.
• “Conveyance” describes the document used to effect the conveyancing, and
“Conveyancer” describes the qualified professional or specialist lawyer retained
by the parties to a transaction to deal with the paper work and finances. His
role is to represent the buyer or seller or the mortgagor. He must however be
qualified in line with the decision of the Court of Appeal in the unreported case
of National bank of Kenya Ltd Vs Wilson Ndolo Ayah & Another (eKLR 2009).
• In this suit the respondent prayed for, among other relief’s, a declaration that
a charge and Deed of Guarantee, both in favour of the appellant, dated 23rd
July 1990 and 17th October, 1990, respectively were null and void ab initio, and
that the sums of money they purportedly secured were irrecoverable.
Introduction Cont

• Both documents were executed by the respondent for the benefit of a company
known as Bungu Investments Ltd, and were drawn by one V. Nyamodi, advocate. At
the trial, the Court found as a fact that on the respective dates the two documents
were drawn, V. Nyamodi did not hold a current Advocates Practicing Certificate, and
was therefore not qualified to draw those documents in view of the provisions of
section 34 of the Advocates Act, Cap 16 of the Laws of Kenya which provides that No
unqualified person shall, either directly or indirectly, take instructions or draw or
prepare any document or instrument.
• Following the trial court’s findings as aforesaid, the court concluded that the
instrument of charge and deed of Guarantee aforesaid were null and void ab initio,
with the result that the money they secured which had grown from the initial figure
at Kshs. 10 million to Kshs. 57,308,137/50 was irrecoverable. The court gave
judgement in terms and thus provoked an appeal.
• Mrs. V.Nyamodi did not hold a practicing certificate as at the date she drew the two
documents. She was qualified as an advocate having successfully gone through law
School. However, qualifying as an advocate is quite different from qualifying to
practice as an advocate.
Introduction Cont

• The three critical ingredients are thus the process, the legal title and
the transfer or modification. Conveyancing is the generic term used to
sum up the procedures used in disposal and/or acquisition of interest in
real property.
• The process is what is basically referred to as Conveyancing practice or
protocol – which refers to the branch of advocacy in real property
transactions or the procedural side of the coin of which the law of
property is the substantive side.
• The legal title or interest to be transferred or modified must be legal in
the strictest sense of the word. The transferee must be seized of a legal
title. Consequently, protocol or process will demand that a Conveyancer
investigates and ascertains that the title to be transferred or modified is
legal.
Relationship to other Branches of Law
• 1. Land Law
• It is right to say that Conveyancing overlaps with land law. Land law gives
us the principles that define rights and interests in land and has been
referred to as “Law at Rest”. Conveyancing on the other hand deals with
procedure or the practical legal mechanisms by which those rights and
interests are transferred from one person to another. It is “Law in Motion”
• 2. Law of Contract
• Conveyancing law and the law of contract: interests in land give rise to
contractual obligations e.g. a lease, mortgage or charge.
• 3. Company Law
• Knowledge of company law is equally important in dealing with companies
involved in Conveyance transactions.
Relationships cont.
• 4. Law of Equity
• The law of equity is also relevant to Conveyancing law and practice in so far as equitable
rights and remedies are concerned. The remedies include specific performance,
injunctions, rectification and rescission. If one has made an error in an instrument and
that instrument has been registered, in order to rectify the error, rectification is needed
to remedy the error. It becomes necessary to have the instrument of rectification.
• Specific performance applies where there is a seller who has entered in agreement with a
person to sell land to that one person and then goes and signs another agreement with
another purchaser for more money. If the first purchaser discovers, he can go to court to
seek an order for specific performance, asking the court to compel the seller to transfer
the land to the first purchaser under the agreement for sale.
• 5. Succession Law
• Some understanding of the law of succession is also necessary in dealing with transactions
involving personal representatives. The law operates to make it possible to transfer land
(transmission) to the beneficiaries. Conveyancing specifies the exact documents that we
need to draft in order to vest the interests of the deceased to the beneficiaries.
Scope of Conveyancing

• The scope of Conveyancing covers the various procedures for certain

land transactions. It deals with practical issues such as how one
negotiates and concludes a lease, mortgage, charge, transfer or other
transaction and how the relationship between the parties to the
transaction is determined. Conveyancing therefore deals with the
various stages of a transaction.
• The scope of Conveyancing then is: -
• Preliminaries
• Investigation of title e.g. searches and examination of documents of
title
• Drafting – Documentation which is the legal framing of documents. It is
the art of legal drafting.
Scope Cont

• Contractual stage – this stage involves negotiation of terms

• Completion stage involving also registration- this is the stage where
documentation is complete and what remains is to take the documents for
registration. If it is a transfer for example the seller’s advocate should now give
all the documents signed to enable the buyer’s advocates to go and register the
documents, the buyer’s advocate should now pay the buyer’s purchase price.
• The construction or interpretation of documents
• Conveyancing also involves the construction or interpretation of documents. For
example in a lease keeping the premises in good state of repair may mean
painting the house, replace locks and so on. This is part of the covenant to
repair. It is about construing the covenant to repair.
• Conveyancing may also involve litigation for example where a transaction fails
and parties resort to the court process for determination and enforcement of
their rights.
Types of Conveyancing

• There are two types of conveyancing;

• a. Registered conveyancing
• b. Unregistered conveyancing.

• Registered conveyancing.
• It arises where the land in question has been registered. The title or interest in
land is proved by an entry in the official register. Ordinarily, the entry in the
official register is considered to be conclusive proof of title.
• Unregistered conveyancing
• It arises where the land in question or interest in land are not registered. Title
to land in unregistered conveyancing is usually proved by tracing through the
title deeds disposing of the property or interest in land. It is necessary for one
to establish the root of the title and title documents should not be taken as
conclusive proof of title.
Duties of a Conveyancer

• Generally Conveyancer’s duties are wide and varied and are not limited to
merely drafting the conveyance and registering the same.
• The duties include:
• Ø Advising clients on buying and selling process + effect of transferring an interest
in land
• Ø Investigating title
• Ø Drafting the documents with sale details, offers, leases, transfer
• Ø Liaising with lenders, estate agents, Advocates, etc.
• Ø Paying taxes e.g. Stamp duty, land rent, VAT, CGT, Rates
• Ø Keeping records of payments and finally preparing a completion statement
• Ø Perfecting the documentation including proper execution, completion and
registration
History of Conveyancing

• Conveyancing law in Kenya, like other branches of law has drawn its history
mainly from English Law. Up till 1535 the English medium of transferring an
interest in land was vide the primitive method of surrendering to the Lord of
Manor the subject parcel of land and his Lordship in turn granted the same to
the transferee’s nominee.
• The earliest and most important form of conveyance however was the
feoffment. This involved no formalities save in the form of a ceremony known
as delivery of seisin (delivery of possession).
• The feoffment was an assurance note made by the feoffor (owner of land) that
he had given his right over an estate to the feofee. The assurance note was
accompanied with a formal public delivery of possession in the presence of
witnesses mainly feudal lords. The law then also recognized facts of leases,
assignments, exchanges and partitions.
History Cont

• After 1535, the first statute relevant to conveyancing was enacted. Before this you
could partition property or swap property.
• In 1535, the Statute of Uses was enacted by Henry the VIII. The purpose of this
statute was to mitigate and stall losses that the Crown was incurring because the
feudal lords decided they could also trade on the property.
• Prior to 1535 the land would be owned by the Lords and produce owned by the
state. The Statute of Uses introduced the principle that any property owned was to
be transferred “ unto the use of the transferee and subject to the right of the
crown.” This ensured that any transfer had to be drawn in a particular way.
• In 1536, the Statute of Enrolment was enacted with the purpose of keeping the
feudal system. It endorsed the regulation that each conveyance had to be sealed by
the Crown and enrolled within six months with the Chief Lords.
• In 1677, the Statute of Frauds was enacted. It required that all conveyancing
documents had to be by way of deed and in writing, sealed by the party
transferring the property before three or more credible witnesses. This has
continued to date.
History Cont

• The Real Property Act 1845 and the Vendor & Purchasers Act of 1874 introduced
the regulation for the transfer of property by way of prescribed forms .
• In 1925, the Law of Property Act (later the RLA in Kenya ) was enacted for the
purpose of simplifying conveyancing/transfer and dealings in land. It abolished
particular forms of conveyancing in land simple basic and straightforward forms
introduced. It also abolished various forms of interests and estates in land and
kept only freehold and leaseholds. All land was to be conveyed by way of grant.
• The first relevant conveyancing statute enacted in Kenya was the 1901
Registration of Documents Act (RDA). Section 4 of the Act requires/d that
documents conferring property interest be registered within the month of its
making to ensure its availability in evidence. Registration of a transaction under
the RDA guarantees no title but is merely evidence of the occurrence of a
transaction. Under the RDA certain conveyancing documents are still registered
to give efficacy to some conveyancing transactions. These documents include;
Trust Deeds, Powers of Attorney and Building Plans.
History Cont

• Next was the Land Titles Act 1908 (LTA) which was intended to help deal with the
haphazard “deserted” parcels at the Coastal strip of the country. The LTA also
guarantees no title.
• In 1915 the Government Lands Act (GLA) was enacted to deal with conveyancing and
land titles in the interior hinterland. It introduced a more systematic approach to
registration and provided for Deed Plans for all parcels of land to the registered.
The title under the GLA was usually the last Indenture of Conveyance
(Freeholds) or Assignment (Leaseholds).
• In 1920 the Registration of Titles Act (RTA) was enacted. It provided for registration
of and guarantee of titles. It attempted to make conveyancing simple by introducing
statutory conveyancing form albeit not mandatory. The title document under the
RTA is either a Grant or Certificate of Title or a Lease.
• The Registered Land Act (RLA) enacted in 1963 tried to “modernize” conveyancing.
The Act borrowed heavily from the 1925 English Law of Property Act. Unlike the RTA,
the RLA made the use of statutory conveyancing forms mandatory(S.108).
History Cont

• The title document under the RLA was a Title Deed/Land

Certificate (for absolute proprietorship) or Certificate of Lease
(for leaseholds) or a Certificate of Sectional Property if it is a
property under the Sectional Properties Act. Both were issued at
the request of the registered proprietor and upon payment of the
requisite fees.
• The Land Registration Act of 2012 was later enacted to repeal the
RLA, LTA, RTA, GLA and ITPA. It is modeled on the registration
provisions of the RLA.
NEXT WEEK
FORMALITIES OF DISPOSITION