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KENYA SCHOOL OF LAW

CONVEYANCING 2014
ELEMENT III
EXECUTION & ATTESTATION

Execution is the signing of documents the purpose of which is to authenticate and acknowledge
the same. Signature on the other hand is the “writing or otherwise affixing a persons name or a
mark to represent his name by himself or by his authority with the intention of authenticating a
document as being that of, or as binding on the person whose mark or name is so written or
affixed”. Initials, thumb prints (left thumb for men, right for women) are deemed to be signatures
but the mere typing of a name is not (See: Lord Denning in Goodman Vs J. Eban 1954 1QB 550,
see also First Post Homes Ltd –vs- Johnson [1995] 4 All. E. R. 355, Section 3(6) of the Law of
Contract Act (Cap 23) Laws of Kenya as well as Section 44 LRA). Both the ITPA and RLA provided
for execution of documents with the latter being explicit that all parties to the document must
execute the same unless the District Land Registrar deems it necessary to dispense with a party’s
signature (S. 109). Section 44 of the LRA however now demands that execution be by all parties
consenting to the instrument [Reflection: where one wears two hats e.g. a trustee who is both a
Vendor and Purchaser, must he sign twice in both capacities or need he only state his capacities in
the testimonium? Is it practically possible to get all parties consenting to a Transfer to execute the
same considering the various consents which any given transaction may require?]. Natural
persons can sign by themselves or by their duly constituted Attorney(s). Companies and other
juristic persons will execute the document as per the provisions of their respective constitutions,
memoranda, charter or the constituting statute as necessary. Such juristic persons may also execute
documents through their duly constituted Attorneys. A close perusal of these constituting or
establishing documents or statutes is thus important [Reflection: See Nyamu J in Labelle
International Limited –vs- Fidelity Bank Limited 2003 2 E. A. 541 on execution by a company]

Whilst the actual conveyancing instruments must be signed by the proprietor or his duly
constituted Attorney, a Sale Agreement may be signed by he who has “apparent or ostensible
authority” and not necessarily actual authority. [ Reflection: In the recent case of Shem Obondi Vs
Seemford Holdings Limited, the Court of Appeal seems to have suggested that apparent or
ostensible authority has no place in modern day commerce. Do you agree?]

Documents will be signed at the signature block which appears at the very end of the conveyancing
document. It is however prudent that to achieve the aim of execution and also to guard against
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unscrupulous practitioners, parties be encouraged to initial or sign every page of the document.
[Can you draft a signature block for a natural person? And, a juristic body corporate?]

Attestation is the proper witnessing of a signature or execution. It simply means to bear witness
to a fact. The person witnessing the execution must be present as the executant ascribes his mark.
The object is to help guard against fraud and thus a party to a deed cannot attest to its execution.
A Vendor ought not witness the Purchaser’s signature and vice versa. So seriously is the issue of
attestation taken that the Court of Appeal in Lamchand Fulchand Shah –vs- I & M Bank Limited
C. A. C. Appl. No. 165 of 2000 decreed that where there is a question of proper or improper
attestation then the Advocate who purportedly witnessed the execution must be made a party to
the suit. The conveyancer must thus take care and ensure the document has been executed in his
presence. [Reflection: who should attest the execution? See Sections 44 & 45 of the LRA and Section
38 of the LA]. A document executed by a company must now as a legal requirement be attested .
Section 44 (3) of the LRA has “overruled” previous case law which stated that there was no need
for attestation where the a document was executed by a limited liability company: see Coast Brick
–vs- Premchand Raichand 1966 E. A. and Eccon Construction & Engineers –vs- Giro Commercial
Bank [2003] 2. E A LR 426.

VERIFICATION
It can be argued that up till 2005, verification as a conveyancing process was unique to the RLA
regime only. Effectively, it was the equivalent of attestation. It is however more than just
witnessing. The RLA prescribes particular persons mandated to undertake verification. Section
110 requires the signatory to appear before a Registrar for the Registrar to satisfy himself as to the
signatory’s identity and voluntary nature of execution. Judges, Magistrates, Advocates, Bank
Officials, Notary Public are also allowed by the RLA (Schedule IV) to verify the execution of RLA
documents. Section 45 of the LRA has now made it a mandatory requirement in conveyancing
unless the Registrar deems it fit to dispense with the requirement

Legal Notices 146-153 of 2005 (requirements as to passport size photos, PIN and ID numbers), it
can be argued, extended verification to the RTA, GLA and LTA regimes as well. One can only
authenticate a photo by actually and physically seeing the person to confirm the true likeness. So
like Section 110, the signatory must appear before you before you can authenticate the execution
process. Legal Notices 146-153 have now been assimilated in Section 44(5) of the LRA.

POWER OF ATTORNEYS
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This is an authority in writing by which one person (donor) enables another (attorney in fact or
donee) to act for him. The authority could be general or special (specific). It authorizes the donee
to do some lawful act for and in the stead of the donor. The authority is contained in a Letter of
Attorney and could be irrevocable or revocable. Ordinarily it is irrevocable when there is some
interest conveyed or granted to the donee. The donee can use the authority to do only what he is
authorized under the Letter of Attorney to do and no more. The LRA prescribes a non-mandatory
approach unless there is disposition of land effected by the Power of Attorney in which case the
provisions of Section 43 of the LRA will apply. The Form to be used in donating the authority
must be executed and the execution verified as provided for under the said Statutes before it is
stamped and registered otherwise the Power of Attorney will be null and void: Mayfair Holdings
Limited-vs- Ahmed 1990 E. A. 340

STAMP DUTY
As part of conveyancing and taxation, stamp duty is basically revenue raised by the Government
by requiring stamps sold by the Government to be affixed to designated documents. The stamps
are affixed or embossed or impressed by means of a red dye or franking or adhesive revenue
stamps. The Stamp Duty Act (Cap 480) Laws of Kenya designates various conveyancing
instruments to be stamped. Section 5 of the said Act demands that every instrument relating to
property in Kenya if specified in the Schedule to the said Act do fetch stamp duty as prescribed.
The duty is to be paid within 30 days of execution of the document or of its receipt if it is executed
outside Kenya (Section 6). [Reflection: when do you date the conveyancing instrument? Who
authorizes payment of duty when there is a delay beyond the statutory time and what is the
penalty?].

Failure to pay duty is equivalent to evasion of tax and is a criminal offence under Section 113 of
the Act. Section 111 of the RLA supplements the Stamp Duty Act and under the Section no
document is acceptable for registration if the stamp duty required to be paid has not been duly
paid and documents properly stamped [Reflection: what is proper stamping: revenue stamps, or
franking]. Duty on conveyancing instrument is paid on the ad valorem value at the statutory rate.
The rates currently are : Transfers – 4% for properties situate within cities municipalities and 2%
of the value for properties outside municipalities/cities; charges and Mortgages – 0.1% of the
amount secured; Discharges/Reconveyances -0.05% of the amount secured and Leases 1% of the
annual rent for a Lease of less than 3 years and 2% of the averaged rent for a Lease of 3 years or
more. Long term Leases or subleases are deemed to be Transfers and fetch duty as if they were
Transfers.
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Currently stamp duty fees is collected directly by the Kenya Revenue Authority by payment being
made to the Authority’s account in commercial banks. The document together with the stamp
duty assessment form and the banking pay-in slip is then delivered for stamping by the Collector
of Stamp Duty. The Collector has powers to adjudicate and decide whether a document should
fetch duty [Reflection: How wide is the Collector of Stamp Duty’s discretion under Section 17 of
the Stamp Duty Act? Contrast and compare this Section with Sections 96/97 of the same Act].

Exemption from payment of duty is however the recluse of the Minister of Finance after receiving
the appropriate recommendation from the Minister of Lands [see Section 106]. Relief and or
exemption will be granted to charitable organizations as well as religious organizations or
institutions. Certain institutions are also duty-exempt. These include educational institutions,
government departments (e.g. Central Bank of Kenya) and the Export Processing Zone Companies.
[Reflection: what possible reforms would you recommend to the Stamp Duty regime? E-stamping,
first-time home owners be duty exempt, beneficiaries of deceased estates to pay file duty, base duty
on the theory of “from each according to his means”.]

It is important that in a conveyancer’s brief; the Stamp Duty Assessment Form obtained from the
Collector of Stamp Duty is completed in a legible manner, the payment is re-checked to have been
fully made to match the amount assessed, all receipts are available copied and properly filed and
any certificates for purposes of relief or exemption required are obtained in time.
Process:
 Applicant presents document for assessment by collector. Fills Form SD1
 Assessor confirms if duty is payable, counterchecks info on the form and document,
ascertains amount and endorses both Form and document
 Applicant pays amount in designated bank
 Returns document with proof of payment to Collector of Stamp duty
 Collector of Stamp Duty reconciles records and stamps document by franking
 Audited by Government accountant and dispatched
[ What instances of stamp duty relief or exemption come to your mind?]

RATES & RENT CLEARANCE CERTIFICATES

Rates are levies payable to the Government through the local authorities under the Rating Act (Cap
267) Laws of Kenya. It is simply a form of taxation and conveyancing helps in a way towards its
collection. Upon full payment of rates due on any parcel of land, the local authority’s Clerk issues
the owner of the parcel with a Rates Clearance Certificate. It is prima facie evidence that the rates
due and any interest accrued thereon have been fully paid. Sections 38 of the LRA requires that
prior to the Registrar accepting any document intended to transfer or vest any interest in land for
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registration there must be also produced a valid Certificate or Statement showing that the rates
have been cleared or paid up. Rates will be levied on all parcels of land, freehold or leaseholds.

Land Rent, too, is a source of income for the Government as Landlord. Land Rent will be levied
only on leasehold parcels where the annual rent has been reserved at the time of the Grant being
issued. [Reflection: what is a peppercorn?] Sections 39 and 55 of the LRA help to assist the
Government in collection of rent as both Sections require that before any transaction on a leasehold
property is registered the parties must produce to the Land Registrar a valid Rent Clearance
Certificate. It is always the duty of the registered proprietor to pay and obtain the Rates and or
Rent Clearance Certificate, unless agreed otherwise. [Reflection: What is the process of obtaining
either a Rent Clearance Certificate or a Land Rates Clearance Certificate? What are the challenges
met by ordinary practitioners?]

CONSENTS
There are quite a number of consents in conveyancing to ensure the success of the transaction.
Different transactions however require different consents and occasionally some will over-lap.
[Reflection: what is the rational behind the various consent?]

1. Commissioner of Land’s Consent (now the National Land Commission’s consent)

This is issued by the Commissioner of Lands upon satisfaction that the proprietor has
complied with and satisfied all the terms of the Grant. This includes paying all outstanding
land rent. It will be applicable only to leasehold properties and not freeholds. The
Government through the Commissioner of Lands would wish to satisfy itself that all the
terms and covenants for example as to user, planning, development, payment of rent
reserved have been satisfied. This consent should be applied for through prescribed forms
and obtained by the registered proprietor. The applicant must pay a non-refundable
amount of Kshs 1000/=.

2. Land Control Board Consent

This applies to all land designated as “agricultural land” under Section 2 of the Land
Control Act (Cap 302) Laws of Kenya [Reflection: what is “agricultural land”?] and is
required for all transactions touching on and concerning such land. The particular
transactions are outlined in Section 6 of the Land Control Act. The consent is granted by
the local Land Control Board on application by both parties to the transaction. The
application is made in a prescribed form and consent also issued in a prescribed form.
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User of both forms is mandatory. Transactions touching on and concerning agricultural

land will be exempt from the Land Control Board Consent if the President so directs or if
it is a transmission or if the Government is a party. The application to the Board must be
made within six (6) months from the date of the transaction otherwise the transaction is
null and void: Simiyu –vs- Watambamala 1985 KLR 252, Karuri –vs- Gituru 1981 KLR
247, Jacob Minjire –vs- AFC, Njamunyu –vs- Nyaga 1983 KLR 282.

3. Other consents include:

Consent of the Railways Corporation (for land adjacent/adjoining railway lines),
Consent of Kenya Airports Authority (for land adjacent/adjoining the airports or flight
paths), consent of mortgage or chargee (see Section 69(h) and Section 70 RLA), Consent of
Lessor/Landlord, Presidential Consent (for first row beach properties at the Kenya
Coastline).
[Reflection: Whose responsibility is it to obtain the requisite consent? Which consent(s) may you
require to transfer a free hold property? And an Apartment under a Sub-Lease? What are the
consequences of not obtaining a requisite consent or clearance certificate?]

Unless otherwise agreed it is the responsibility of the person who intends to dispose of the interest
to obtain the consent.

JLO- 2014
jlonguto@ksl.ac.ke