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Why due diligence is critical before buying land in Kenya. 

• Credit to “Onyango & Tarus Advocates”
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Land is a very valuable asset because of its finiteness. There is only so much land that is available on this earth.

Humans not only live on but also perform all economic activities on land. This coupled with the fact the world population is ever-increasing, land everywhere keeps on appreciating in value consequently attracting an upsurge in demand.

Because land is constantly appreciating in value, it is deemed an excellent investment by many. Hence the reason why land transactions are fraught with fraud.  Therefore, as a buyer, you need to know pitfalls to avoid and safeguards to take when purchasing land lest you find yourself deep in endless court battles or having lost your hard-earned money to swindlers or your million shillings investment being demolished because it is built at the wrong place such as a riparian reserve.

The following are 11 things that you need to do to avoid becoming a victim of land fraud:

• Proposed use of the land

Land in Kenya is categorized as agricultural, residential, commercial, industrial, recreational, riparian reserves, forest land, national parks and reserves, wildlife corridor, gazetted historical sites, flight paths, among others. The categorization of land is referred to as zoning. You should therefore enquire from both the National and County Governments whether the land in question is available for use, registered, and suitable for the purpose for which you want to buy it.

You should go to the relevant authorities if the land sits next to a major road or highway, an airport, a river, a national park or reserve, a forest, a historical site, etc. to find out from the authority if the land is theirs or not.

• Valuation

This is important as it protects you from possible exploitation from the seller and/or brokers. Valuation will provide an estimate of the market value of the land. Engaging a reputable registered valuer will be prudent.

• Meet the Seller in person

 Before you pay for the land, have a physical meeting with the seller. Whereas online or remote transactions are growing popular and very convenient today, they are susceptible to fraud by fraudsters who may take advantage of you.

Request them for copies of their National ID cards, and PIN Certificates. If the seller is a company, request copies of their National ID cards, and PIN Certificates of the directors.

• Ask neighbours questions about the seller or history of the land

Neighbours of the land you are interested in, are better placed to provide you with information regarding the real owner of the land, the history of the land ownership as well as whether there are disputes over the land. A neighbour may inform you of family squabbles, boundary issues, how the land came about, whether it was a settlement scheme, community land, other buyers (multiple owners), set aside for public utilities such as sewerage plants, cemeteries and other very valuable information.

Show the neighbours the photos of the sellers or the directors as they appear on the copies of their National ID cards, and ask them to confirm whether indeed the persons whose photos are on the IDs are indeed the real owner of the land. If the seller is not the real owner and had forged the ID of the owner by replacing the real owner’s photo with the photo of the fraudster-seller, the neighbour will identify the deception, for instance where the real owner is an old lady or young lady and the photo on the ID shows a young woman or old lady respectively.

• Physical visit

Believe what you see and not what you hear or read online. Only pay after you have confirmed that the land meets your expectations, has a clean title, and is owned by the person purporting to sell it. You can be promised an elephant and be given a rat. You should also conduct a physical inspection of the boundaries.

If possible, wait for the rains if you want to be sure of the drainage and soil type. The case of the upmarket Green-Park Estate in Athi River which flooded in March, 2018 after Stoni Athi River bursts its banks, should be a reminder of the perils of purchasing and constructing on land that sits on flood-prone areas.

• Survey

To ascertain your boundary, get a licenced land surveyor to survey the land and confirm the availability and integrity of the beacons and the boundaries. Request the surveyor to obtain the land’s survey map from the Survey’s office and check whether the land and its title number actually exist on the survey map. Survey maps are not easy to forge unlike title deeds, searches and other documents.

• Investigation of the title

Conduct a search at the relevant land registry. If you are buying land from a company, also conduct a search on the company’s directors and shareholders at the Companies’ Registry.

Why do a search:

1. You will know the true owner of the land.
2. You will know who are the true directors of the company if the seller is a company.
3. You will know if the land has an encumbrance (such as a bank charge, a caution, a caveat, a restriction).
4. You get compensation for a mistake that arises out of an official search.
5. You will know the exact size of the land as captured in the land records.
6. You will know the history of the land, whether it belongs ultimately to the National Government or the County Government or a governmental authority such as the Export Processing Zones (in case of Leases), the number of years remaining on the Lease, or it belongs to the seller (in case of Freehold land).
7. You will know the rent payable to the National Government if there is any.

• Check the authenticity of documents

Cases of falsified Wills, Letters of Administration of a deceased estate, and Letters of Allotment are rampant. Sale Agreements, Land Transfer documents, Title Deeds, Green Card and Share Certificates where the property was acquired through a land-buying company are known to be forged by cartels and con-artists. In the case of agricultural lands in both urban and rural areas, the fraudsters have been known to forge Minutes of Land Control Boards (“LCB”), the Transfer Consent Letter from the LCB, and the Sub-division Consent Letter.

Things to do:

1. Request the court registry to confirm the authenticity of the Letters of Administration or Letters of Probate (if the owner had died and the “family” is selling the land to you), the seal and stamp of the court and the judge’s signature.
2. Request to peruse the court file for the succession matter to check the records there.
3. Request the County Government to confirm the authenticity of the Letters of Allotment, and if possible ask for copies of the Minutes of the county meeting that approved the allotments.
4. If possible, check and confirm with the advocate whose name and address is on the documents, whose stamp appears on the documents to confirm whether he/she indeed prepared and witnessed the documents. Bonafide advocates can easily be traced using Law Society of Kenya’s search engine at: https://online.lsk.or.ke/
5. Confirm the validity of the PIN Number of the seller and his/her name using the KRA PIN Checker at: https://itax.kra.go.ke/KRA-Portal/pinChecker.htm
6. Visit the particular LCB offices and confirm the authenticity of these documents and their signature.

Are a few hours of time more important than losing millions of your hard-earned money that took you years and sweat to raise?

• Land rates and land rent

Using copies of the title deed you have been given by the seller, check the outstanding land renton the land by logging in on your eCitizen account and navigating on to the Ministry of Lands section, or visiting Ardhi House in Nairobi if the land number cannot be found on the platform or visit the local land registry where the land is located. Check also with the relevant County Government the land rates outstanding. Land rent is paid to the National Government for GLA (Government Lands Act) and RTA (Registered Titles Act) lands while land rates are paid to the County Governments for all lands.

Some landowners do not pay the yearly land rent and land rates, thus accruing huge penalties. If you do not check and demand that the owner settle all the rent and rates arrears on the land before selling to you, you will have a very hard time getting them to pay after you have bought the land or have to settle them yourself. Also, the arrears and penalties might stall the transaction for a long time since land registries will not complete the transfer until the amounts are settled and the seller provides Rent and Rates Clearance Certificates from the National and County Governments.

• Sale Agreement

Only after you have gone through the preceding steps and are satisfied that you are dealing with a genuine owner, can you proceed to sign a sale contract. Ensure the Sale Agreement with the seller is in writing, signed by both of you, and witnessed. It is important that you engage a lawyer to help you with due diligence, the land and company searches, the preparation of the Sale Agreement, and transfer of land.

• Fence the land

Once you have signed the Sale Agreement and paid the 10% deposit while awaiting the completion of the registration of the transfer of the land to your name by the land registry and issuance of a new title in your name, fence it the land or truck building stone blocks and sand.

Fencing will do two critical things: (i) it will restrict encroachment; and (ii) it will help unearth any cases of multiple buyers. If the seller is dishonest and had sold the land to other persons, or is a swindler who is selling land that does not belong to them, the other buyers or the real owner will be informed by neighbours or their lookouts that a stranger is fencing their land and will rush to find out what is going on.

This way, you will discover the truth and instead of losing 100% of your purchase money, you may lose only the 10% deposit and your precious time, a better outcome.

What you should avoid!

1. Buying land belonging to a deceased person before succession formalities have been completed.
2. Buying land near rivers, lakes, roads, forests, schools, and other public bodies before you are sure about the boundaries.
3. Developing land before obtaining the necessary approvals from the County Government, NLC, and relevant statutory authorities.
4. Purchasing leasehold land that has a few years remaining before the lease expires.
5. Paying booking fee or commitment fee.
6. Paying any amount even a deposit without signing a Sale Agreement. Agreements for the sale of land are required by law to be in writing to be enforceable. Only pay the deposit after you and the seller have signed a Sale Agreement.
7. Paying deposits that exceed 10% of the purchase price of the land. Only pay 100% after the land has been transferred into your name and the title deed has been issued in your name by the land registry.