KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME (ATP)

CLASS A, FIRM 12

ATP 107- CONVEYANCING PROJECT

WORK FOR
ACADEMIC YEAR 2021/2022

PRESENTED TO: Mr. STEPHEN AYIERA

Tuesday, 26th October 2021

FIRM 12, CLASS A MEMBERS (Firm Twelve & Tens Company Advocates) DECLARATION

1| P a g e
 The undersigned are Firm 12, Class A Members also known as Firm Twelve & Tens Company
Advocates for the purpose of this project. We declare that this project is our original work and a
collective effort by the firm members listed below, in fulfilment of the requirements for the
Conveyancing course unit of the Advocates Training Program and that this research project has not
been published and or submitted for any other award to any other university or college before.

NO STUDENT NAME REGISTRATION NO. SIGNATURE

1 NYAKWEBA WENDY MAGOMA 20210235

(Chairperson)
2 OMBEWA TRIZAH (Secretary) 20210288
3 KIPKEMBOI VICTOR 20211523
4 WANGO ERIC 20211272
5 WAMBOI JULIUS 20210584
6 MUSINGO LENA 20211329
7 KAHIGA LYDIA 20211082
9 CAREN UNITY 20211344
10 NYAGAKA HESBON 20211600
11 MITEI KIPKORIR 20210294
12 MURUNGA VERAH 20211638 DEFERRED

TABLE OF CONTENTS
FIRM 12, CLASS A MEMBERS (Firm Twelve & Tens Company Advocates) DECLARATION i
1 | Page
ACKNOWLEDGEMENT iv
LIST OF LAWS v
THE ROLE OF ADVOCATE FOR THE VENDOR AND PURCHASER IN A SALE OF LAND
TRANSACTION 1
A. Duties of Mr. Money Bags Advocate 1
i. Client Interview 1
ii. Conducting searches and due diligence 1
iii. Drafting the Sale agreement 2
iv. Drafting of completion Notice 3
v. Procure Execution 3
vi. Issuing of completion notice 3
vii. Obtain and Account for any Proceed of the Sale to the Vendor 3
B. Duties of Express Purchasers Limited’s Advocate 4
i. Conducting Client Interview 4
ii. Investigating of title and scrutinizing the documents 4
iii. Approving of sale agreement 4
iv. Preparing transfer documents 4
v. Obtaining and paying for the purchase price 5
vi. Registration of transfer 5
2. SALE AGREEMENT 6
1. Definitions and Interpretation 6
2. Agreements for sale and purchase 7
3. Purchase Price 7
4. Completion Arrangements 7
5. Default 8
6. Possession 8
7. General matters subject to which the Property is sold 8
9. Costs 9
10. The Law Society Conditions 9
12. Waiver 9
13. Amendment 9
14. Alternative Dispute Resolution 9
15. Notice 10
2 | Page
PROFESSIONAL UNDERTAKING 12
PART 2: ADVICE MR. MONEY BAGS OF HIS RIGHTS AND LIABILITIES AS RELATES
TO THIS TRANSACTION. 14
A. Brief Facts 14
B. Issues Arising 14
C. Analysis of the Issues 14
I. Whether Mr. Money Bag Can Rescind the Agreement and the Steps to be taken before the
Rescission 14
II. Whether Estate Agents Have the Right to Commission 15
III. Whether the Witnessing of Sale Agreement by a Lawyer Who Does Not Have a Current
Practicing Certificate Invalidates the Whole Transaction 15
IV. Whether There Was a Professional Undertaking and Whether It Is Possible To Enforce It 16
V. Remedies Available to the Vendor 17
i. Specific performance 18
ii. The right of re-entry into the property. 18
SAMPLE OF COMPLETION DOCUMENTS 20
Annexure 1: PIN Certificate 20
Annexure 2: Colored passport size photo 21
Annexure 3: Copy of Identification Card (ID) 21
Annexure 4 : Certificate of Title 22
Annexure 5: Copy of Title deed 23
Annexure 6: Land Rate Clearance Certificate 24
Annexure 7: Spousal Consent to Transfer 25
Annexure 8: Certificate of Official Search 26
Annexure 9: Duly Executed Transfer form 27
Annexure 10: Completion Notice 28

ACKNOWLEDGEMENT

We thank the Almighty God for the gift of health and for overseeing us through the firm meetings and
group discussions to complete the project work.

3 | Page
We appreciate the course instructor Mr. Stephen Ayiera for instilling in us with knowledge required to
complete this Conveyancing project work.

We also extend gratitude to the firm twelve members (Twelve & Tens Advocates) for the effort and
dedication in doing this project work.

LIST OF LAWS

1. Constitution of Kenya 2010

2. Advocates Act, Act No. 18 of 1989
3. Public Officer Ethics Act, Act No. 4 of 2003
4 | Page
4. The Law Society Conditions of Sale 2015
5. The Estate Agents Act, Act No. 17 of 1984
6. Land Act, Act No of 2012
7. Land Registration Act

5 | Page
THE ROLE OF ADVOCATE FOR THE VENDOR AND PURCHASER IN A SALE OF LAND
TRANSACTION

Sale of land is the process by which an interest in land is exchanged for a valuable consideration
between the purchaser and the vendor on agreed terms. 1 The transaction process begins when the buyer
identifies the land they would like to acquire. It is advisable that the buyer procures the services of an
advocate through the buying processes such as determination of the validity of the land by conducting
prerequisite searches at relevant registries after obtaining the copy of the land title. 2 The Advocates Act
defines an advocate as a person whose name is duly entered upon the Roll of Advocates or upon the
Roll of Advocates having the rank of senior counsel. 3 In the case scenario the client Mr. Money Bag
instructs the advocate to represent him in the sale of land transaction registered as LR No 007/021. The
advocates of the parties in this transaction have the following duties:-

A. Duties of Mr. Money Bags Advocate

i. Client Interview
Mr. Money bags advocates should conduct a client interview to confirm the full name of the parties
who will be involved, details of the property and who is going to be the financier. The opportunity
would allow the advocate to fully understand and identify the interest of their client. The advocate also
has a duty to confirm whether there is a conflict of interest to avoid being in a position where his
personal interest conflicts his official duties.4 The advocate should inform the client of the payment of
the legal fees and remind them to pay the capital gain tax to be paid to the Kenya Revenue Authority. 5
The advocate ensures to obtain details of the client including their capacity and names. The details of
the particular land of interest, the size, location, fixtures on it among other information regarding the
land.

INVESTIGATION OF TITLE

ii. Conducting searches and due diligence

The advocate obtains the original copy of the title from the vendor and is obligated to conduct searches
at the land registry. The search is to confirm whether there exist any encumbrances among other details
of the property such as the size. Using a copy of the vendor’s Identification Card, the advocate

1 Haron Makhanu, “Conceptualization:The role of Advocates in land Transaction” (academia.edu 2019).

2 Stephen Njihia Mbugua v Stephen Kihara Muchui & 2 others [2015] eKLR (Civil Appeal 279 of 2012).
3 Advocates Act 1989(Rev 2017), s 2.
4 Public Officer Ethics Act 2003, s 12.
5 Kenya Revenue Authority.
1| P a g e
confirms the identity of the client and where it is a company a certificate of incorporation is used to
ascertain the authenticity of the ownership by the company.6

PRE- CONTRACTUAL STAGE

After the vendor’s advocate is satisfied with the result of the search the advocate drafts an appointment
letter informing all parties involved in the transaction that they will be acting on behalf of the particular
vendor in this case Mr. Money bag. The advocate advises their client to negotiate for the purchase
price. The parties to the land transaction agree on the purchase price of the land in question. The
purchaser can therefore ask pre-contractual questions if any on latent defects.7

iii. Drafting the Sale agreement

The vendor’s advocate drafts a sale of land agreement outlining the terms for the contract. The
particulars entailed will include the details of the parties, the agreed purchase price, mode of payment,
agreed completion date and list of other relevant documents needed for the completion of the
transaction .Once the parties to the contract agree on the terms, they sign the sale agreement before the
advocate who attests the same.

The vendor’s advocate will obtain and send copies of the relevant documents including the Vendor’s
Identification card and a copy of the title deed to purchaser’s advocate to conduct a search. 8 The
vendor’s advocate will then answer any questions strictly on the title deed. 9 The advocate receives an
executed sale agreement from the purchaser’s advocate together with the deposit. 10 The vendor’s
advocate shall remind their vendor that they owe a duty of care to the purchaser since payment of the
deposit signifies commitment.

The advocate will obtain completion documents from the vendor. The documents include: Original title
deed,11 copy of the vendor’s identification card,12the Kenya Revenue Authority pin,13 rates clearance

6 The Law Society Conditions of Sale 2015, Condition 6.1.4.

7 The Law Society Conditions of Sale 2015, Condition 6.1.5.
8 The Law Society Conditions of Sale 2015, Condition 6.1.1.
9 The Law Society Conditions of Sale 2015, Condition 6.2.2.
10 The Law Society Conditions of Sale 2015, Condition 5.3.1.
11 The Law Society Conditions of Sale 2015, Condition 8.4.1(a).
12 The Law Society Conditions of Sale 2015, Condition 8.4.1(f).
13 The Law Society Conditions of Sale 2015, Condition 8.4.1(g).
2 | Page
certificate,14 rent clearance certificate,15 three passport sized photos,16 stamp duty evaluation form
and consent if required17 e.g. spousal consent.

iv. Drafting of completion Notice

The vendor’s advocate will have their client execute the agreement before sending it to the purchaser’s
advocate. The vendor’s advocate will then receive a transfer document from the purchaser’s advocate.
The advocate goes through it, stamps and sends it back to the purchaser’s advocate. The advocate then
drafts the completion notice informing the purchaser that the completion documents are ready and that
they can complete the transaction.18

v. Procure Execution
The vendor’s advocate hosts the parties in his office for completion of the process. 19 The purchaser
should pay the purchase price and bring a copy of proof of payment e.g. bank slip. The advocate will
ask their client to sign the transfer document and give the completion documents to the purchaser’s
advocate.20

COMPLETION STAGE

vi. Issuing of completion notice

The purchaser’s advocate shall prepare a completion notice informing the vendor’s advocate that the
purchaser is ready to complete the transaction.21

vii. Obtain and Account for any Proceed of the Sale to the Vendor
The Advocate with the vendor consents pays any money due to the transaction e.g. values. Lastly, the
advocate ensures to get his pay himself and gives the balance to the vendor and reminds them to pay
capital gain tax which is 5% of the profit made from the sale of the property.

14 The Law Society Conditions of Sale 2015, Condition 8.4.1(c).

15 The Law Society Conditions of Sale 2015, Condition 8.4.1(d).
16 The Law Society Conditions of Sale 2015, Condition 8.4.1(j).
17 The Law Society Conditions of Sale 2015, Condition 8.4.1(l).
18 The Law Society Conditions of Sale 2015, Condition 7.1.1.
19 The Law Society Conditions of Sale 2015, Condition 8.2.2.
20 The Law Society Conditions of Sale 2015, Condition 8.4.1.
21 The Law Society Conditions of Sale 2015, Condition 7.5.1.
3 | Page
 B. Duties of Express Purchasers Limited’s Advocate
i. Conducting Client Interview
Client interview is conducted by the purchaser advocate to confirm all the details of the purchaser, the
property and the financier of the transaction. The purchaser's advocate ascertains whether they have
acted for the client before to avoid conflict of interest by ensuring they have no personal interest with
regard to the particular transaction.22 The advocate has a duty to inform their client to pay 4% stamp
duty of the purchase price since the land is in Langata which is within the Municipality of Nairobi
County.23 The advocate will draft a notice of appointment and inform Mr. Money Bags, his advocate
and all persons involved in the transaction that you will be representing Express Purchaser Limited.

ii. Investigating of title and scrutinizing the documents

Express purchaser limited advocate shall conduct a search after Mr. Money bags advocate’s sends a
copy of the title deed to confirm and whether there are any encumbrances, and the size of land, the with
the copy of Mr. Money bags Identification card conduct a search to see whether they are who they
claim to be.

iii. Approving of sale agreement

The purchaser’s advocate draft requisitions will only be based on the findings of the search of the title
deed.24 Once the advocate is satisfied with the results of the search conducted and has explained the
Sale Agreement clauses, he approves and asks the client to sign and pay the deposit.25
The purchaser's advocate then sends the signed documents and the copy of the proof of payment e.g.
bank slip to the vendor’s advocate’s chambers.26

iv. Preparing transfer documents

The purchaser's advocate will draft a transfer document and send it to the vendor’s advocate. The
vendor's advocate will peruses the transfer, stamp it and send it back to the purchaser's advocate
accompanied with a stamped Agreement of sale.

v. Obtaining and paying for the purchase price

During the completion day the purchaser’s advocate shall deposit the balance of the purchase price and
take the proof of payment e.g. the bank slip to the vendor's advocate chambers. 27 The vendor’s

22 Public Officer Ethics Act 2003, s 12.

23 The Law Society Conditions of Sale 2015, Condition 23.
24 The Law Society Conditions of Sale 2015, Condition 6.2 and S 6.3.
25 The Law Society Conditions of Sale 2015, Condition 5.3.1.
26 The Law Society Conditions of Sale 2015, Condition 5.3.2.
27 The Law Society Conditions of Sale 2015, Condition 8.3.1.
4 | Page
advocate upon receiving the deposit slip shall provide the purchaser with the completion documents
with a signed transfer documents signed by the vendor.28

REGISTRATION STAGE

vi. Registration of transfer

Finally, the purchaser’s advocate registers the transfer,29 pays the stamp duty 30and the registration fee
payable on the transfer.31 The purchaser’s advocate submits to the registrar the completion documents
to facilitate the registration of the transfer. The purchaser’s advocate will receive his payment 32 and
conduct a search 4 weeks later to confirm whether the land has been registered under the client’s name.

2. SALE AGREEMENT

REPUBLIC OF KENYA
MONEY BAGS of ID 129808817
AND

28 The Law Society Conditions of Sale 2015, Condition 8.4.1.

29 The Law Society Conditions of Sale 2015, Condition 8.5.1.
30 The Law Society Conditions of Sale 2015, Condition 8.5.2.
31 The Law Society Conditions of Sale 2015, Condition 8.5.3.
32 The Law Society Conditions of Sale 2015, Condition 26.
5 | Page
 EXPRESS PURCHASERS LIMITED of REGISTRATION NO 20202020
SALE AGREEMENT
-In respect of-
LAND REGISTRATION NUMBER 007/021, LANGATA NAIROBI (Bond Street)
(3 Hectares)
THIS AGREEMENT is made on the …13th… Day of…October…2021 BETWEEN MONEY BAG
of Post Office Box Number 209-20100 Nairobi, in the Republic of Kenya (hereinafter called the
“Vendor”), and EXPRESS PURCHASERS LIMITED of Post Office Box Number 19567-20100,
Nairobi in the Republic of Kenya (hereinafter called the “Purchaser”)
WHEREAS:
a) The Vendor is the registered proprietor of ALL THAT parcel of land known as LR NO
007/021 situated in Bond street, Langata Nairobi County to which the Vendor hold Absolute
Proprietary interest, free from all encumbrances (hereinafter called the “Property”).
b) The Vendor has agreed to sell and the Purchaser has agreed to purchase 3 Hectares of land to be
excised from LR No. (007/021) situated in Langata Nairobi County.

THEREFORE in consideration of mutual promise, the parties agree to be bound by the following
terms and conditions:-

1. Definitions and Interpretation

1.1 Unless the contrary intention appears, the following definitions apply:-
a) “Completion Date” means 90 days from the time of signing of the agreement.
b) “Completion Documents” means documents listed under clause 4.1.3
c) “Property” means All That 3 hectare piece or parcel of land to be excised from LR No.
(007/021) situated in Langata Nairobi county and registered in the Nairobi Land Registry
d) “Purchase Price” means the sum of Kenya Thirty Million shillings Only (Kshs.
30,000,000/=)
e) “Parties’ Means “Vendor” and the “Purchaser” whose expressions includes the respective
personal representatives
f) “Personal representatives” shall mean parties “Advocates”
g) “The transfer” means transfer of vendors rights, title and interest in the sale property to the
purchaser

1.2 The advocates for the Vendor are FIRM TWELVE & TENS COMPANY ADVOCATES,

6 | Page
Class A Building, 12th Floor, KSL Road, P.O BOX 1210-00100 NAIROBI.
The Advocate for the Purchaser WAKILI INVESTMENTS LIMITED LIABILITY
PARTNERSHIP Tash Mall, 2nd FLOOR, P.O. BOX 1222-20100, NAIROBI.

2. Agreements for sale and purchase

2.1 The Vendor has agreed to sell and the Purchaser has agreed to purchase the property at the agreed
price.
2.2 The interest in the Property to be sold is Absolute.

3. Purchase Price
3.1 The Purchase Price for the Property shall be the sum of Kenya Shillings Thirty Million, (Kshs.30,
000,000/=). This notwithstanding the applicable capital gains tax which shall be at the cost of the
vendor.
3.2 The Purchase Price shall be payable to the Vendor as follows:-
a) A deposit of Kenya Shillings Three Million (Kshs.3, 000,000/=) which constitutes ten percent
(10%) of the Purchase price shall be payable upon the execution of this agreement.
b) The balance of purchase price in the sum of Kenya Shillings Twenty Seven million (Kshs.27,
000,000/=) shall be payable to the vendor within 90days from the date of the execution of this
agreement
c) All payments in respect of the Purchase Price shall be paid directly to the Vendor’s Advocates’
bank account whose particulars are:- Account Name: Firm 12 Law Advocates LLP
Bank:Wazito Bank Limited Account No: 00130561 Branch: KSL Branch.
4. Completion Arrangements
4.1 Upon the completion date the Vendor shall give to the Purchaser Vacant Possession of the said
Property, which is immediate.
4.2 The Vendor undertakes to sign all documents, attend all places that would be required of him.
4.3 The vendor upon payment by the purchaser shall forward the completion documents which
include:
a) Copies of Identity Card/Passport together with PIN Certificate of the Vendor
b) Three colored passport size photographs of the vendor.
c) Copy of Registration certificate for the limited liability company
d) Company Resolution
e) Land clearance certificate
f) Transfer in triplicate duly executed by the Vendors in the favor of the Purchaser

7 | Page
 g) The Original Title
h) Consent for Transfer from the Land Control Board
i) Any other documents pertaining to the Property and necessary to transfer the same

5. Default
5.1 IF the purchaser fails to pay the purchase price in accordance with clause 3 above or if the sale
shall not be completed due to the purchaser's fault then the vendor shall give the purchaser 21 days’
notice in writing specifying the default and demanding payment. If the purchaser fails to make payment
in full upon expiration of notice the vendor shall rescind the agreement.

5.2 A defaulting party shall pay 10% of the purchase price to the other party to the contract.

6. Possession
6.1 The Property is sold with vacant possession to be given to the Purchaser upon execution of this
Agreement and payment of the full amount.

7. General matters subject to which the Property is sold

7.1 The land herein is sold free from any encumbrances.
7.2 The Interest sold is free hold.
7.2 The Vendor shall be required to point out to the Purchaser the beacons of the Property, or to
replace any beacons that are missing or misplaced.

8. Warranties
8.1 The Vendor hereby warrants and undertakes that the title to the property is good and hereby
agrees to indemnify the Purchaser against any loss, demands and claims whatsoever against him or his
nominees, in respect of the property.
8.2 Further, the Vendor warrant to the Purchaser that:-
(a) There is no adverse claim on the property or any dispute regarding ownership or any other such
matters.
(b) He has the necessary capacity to enter into this Sale Agreement with the Purchaser and shall
indemnify the Purchaser where there is a breach of any of these conditions.
(c) Has not given any overriding interest to any third party and has no intention of doing so.
(d) Has to the best of his knowledge disclosed to the Purchaser all material information relating to the
Property.

8 | Page
9. Costs
9.1 The Purchaser shall be responsible for payment of the stamp duty and registration fees payable
on the transfer as well as the Advocates costs for drawing and completing this agreement for sale and
the transfer while the Vendor shall be responsible for rates or any taxes due on the property up to the
completion date.

10. The Law Society Conditions

10.1 The Law Society Conditions of Sale (2015 Edition) shall apply to this agreement.

11. Time is of Essence

11.1 For purposes of this agreement time shall be of the essence.

12. Waiver
12.1 No failure or delay by the Vendor or the Purchaser in exercising any claim, remedy, right, power
or privilege under this Agreement shall operate as a waiver.
12.2 No single or partial exercise of any claim, remedy, right, power or privilege preclude any further
exercise thereof, or the exercise of any other claim, right or power.

13. Amendment
13.1 No amendment to this Agreement shall be effective unless it is signed by both parties in the
same manner as this Agreement.

14. Alternative Dispute Resolution

14.1 Where a dispute arises between the Parties with regard to the interpretation, rights, and
obligations and or implementation of any provision of this Agreement, the Parties shall in the first
instance attempt to resolve such dispute by amicable negotiation.
14.2 Should such negotiations fail to achieve a resolution within Fifteen (15) days, either Party may
declare a dispute by written notification to the other, whereupon such dispute shall be referred to
arbitration under the following terms:-
a) The Tribunal shall consist of one Arbitrator to be agreed upon between the Parties, failure to
which such Arbitrator shall be appointed by the Chairman for the time being of The Chartered
Institute of Arbitrators (Kenyan Chapter) upon the application of either Party;
b) The place and seat of arbitration shall be Nairobi and the language of arbitration shall be
English;

9 | Page
 c) The award of the arbitration shall be final and binding upon the parties to the extent permitted
by law;
d) The award shall be registered in a Court of competent jurisdiction and shall be enforceable as
an order of the court;
e) Notwithstanding the provisions of this clause, a party is entitled to seek preliminary injunctive
relief or interim or conservatory measures from any court of competent jurisdiction pending the
final decision or award of the arbitrator.
15. Notice
15.1 Any notice under this Agreement shall be in writing and shall be deemed to be duly served
upon hand delivery to a party, or to be served by registered post to the Party’s address set out above.
IN WITNESS WHEREOF this agreement has been duly executed by the Vendor and the Purchaser
hereto on the day and the year first hereinabove written.

SIGNED by the said Vendor:-

MONEY BAGS …………………………… ………………………….

ID /Passport Number Signature
In the presence of:
Name of Attesting Witness:
KAHIGA KIPKEMBOI
Address of Attesting Witness:
P.O BOX 1345, NAIROBI
Occupation of Attesting Witness:
CLINICAL OFFICER
…………………………..

ADVOCATE
I CERTIFY that the above named ……………………………………….appeared before me on
the…………day of…….………… 20……., and being known to me/identified by……………….
……..of……………… acknowledged the above signature to be his and that he had freely and
voluntarily executed this Agreement and understood its contents and the financial legal and economic
implications thereof.
………………………………
ADVOCATE
SEALED with the Common Seal of
the Purchaser in the presence of:-

NYAKWEBA NYAGAKA ……………………………. ……………………

10 | Page
(Executive Director Express ID /Passport Number Signature
Purchasers Limited)

UNITY OMBEWA .…………………………… ……………………

(Deputy Director Express ID /Passport Number Signature
Purchasers Limited )
Advocate

I CERTIFY that the above named DIRECTOR appeared before me on the ……………. day of ……..
….. 2011, and being known to me/identified by ………….. of ……………..……………
acknowledged the above signatures or marks to be theirs respectively and that they have
freely and voluntarily executed this Agreement and understood its contents and the
financial, legal and economic implications thereof.
…………………………………….………
ADVOCATE

DRAWN BY;
Twelve & Tens Company Advocates,
Class A Building, 12th Floor,
KSL Road,
P.O BOX 1210-00100,
NAIROBI.

11 | Page
 WAKILI INVESTMENTS LLP
Ushindi Avenue. Tel:02120120120
Tash Mall, Ground floor. Mobile:077120110
Po. Box 1222-20100. Email: wakilis@gmail.com
Nairobi. Kenya.
OUR REF: T/10/12 YOUR REF: TBA DATE………………..

PROFESSIONAL UNDERTAKING

Twelve & Tens Company Advocates,

Class A Building, 12th Floor,
KSL Road
P.O. Box 1210-00100,
NAIROBI
Email: twelve&tens@gmail.co

Attention: Mr. Kipkemboi of Twelve & Tens Co. Advocates

Dear Sir,

RE: SALE AND PURCHASE OF PROPERTY TITLE NUMBER LR No. 007/21 Bond
Street/ Langata Nairobi County BETWEEN Mr. Money Bags (VENDOR) & Express
Purchasers Limited (PURCHASER)
We act for Express Purchasers Limited (“the purchaser”) in this transaction for the sale and purchase
of property by (“vendor”). On the instructions of the purchaser, we hereby irrevocably, undertake;
i. To confirm that the title documents received from you are as listed below:
a) Original certificate of title.
b) Duly executed transfer in favor of the purchaser.
c) Original valid rates clearance certificate for the property
d) Original land rents clearance certificate for the property
e) Copy of the vendor’s identity card.
f) Copy of the vendor's pin certificate.
g) Three colored passport size photographs of the vendor.
h) Consent of transfer of the property.

12 | Page
 ii. To hold the Title documents in trust to facilitate simultaneous registration of the Transfer of the
property and which shall be returnable on demand and;
iii. Not to release the documents to any person whatsoever for any purpose, except for the lands
registry in favor of the purchaser or your written consent and;
iv. Not use the documents for any other purpose than for registering of the Transfer in favor of the
purchaser.
v. That we will immediately upon receipt of the Transfer duly registered, notify you of such
registration and endeavor to complete the registration process expeditiously
vi. That we shall ensure to complete payment of the balance in due time and, immediately upon
registration of the Transfer, facilitate remittance to your client the sum of up to a maximum sum
of Kenya Shillings twenty-seven million (Kshs. 27,000,000 /=) being the balance of the
purchase price.
vii. That by receipt and making use of the title Documents, we shall be deemed to have agreed to the
terms of this undertaking and accepted sole liability for the compliance of this undertaking.
viii. That, upon failure to pay the balance of the purchase price we shall, without delay surrender all
the documents in a similar condition as they were when handed to us, and shall forfeit 10% of the
purchase price.
ix. That this undertaking shall be governed by the Law Society of Kenya Conditions of Sale and all
other applicable Laws of Kenya.

Yours faithfully
…..………………….
Mr. Wakili
WAKILI INVESTMENT LLP ADVOCATES.

3. Samples of Completion Documents Attached At the End of this Project

13 | Page
PART 2: ADVICE MR. MONEY BAGS OF HIS RIGHTS AND LIABILITIES AS RELATES
TO THIS TRANSACTION.

A. Brief Facts
Mr. Money bags, our client, seeks to sell property therefore he entered into a verbal agreement with
Karatasi Estate Agents who are not registered to whom they will be paid a commission of 3% after the
conclusion of the transaction. The Estate Agents wrote a letter of offer which was duly executed by
both the vendor and the purchaser on the said terms of the sale of land. Once all the documents have
been executed the purchaser's advocate informs us that they are unable to pay the balance of the
purchase price, the reason being that the bank they deposited the money with is under receivership. Mr.
Money bags instructs us to rescind the agreement. Upon conducting due diligence we discovered that
the Vendor's Lawyer that witnessed the Sale agreement did not have a practicing certificate. As that is
not enough, Karatasi Estate Agents are not yet registered and are hounding our clients for their
commission.

B. Issues Arising
I. Whether Mr. money bag can rescind the agreement and the steps taken before the rescission
II. Whether estate agents have the right to commission
III. Whether the witnessing of sale agreement by a lawyer who does not have a current practicing
certificate invalidates the whole transaction
IV. Whether there was a professional undertaking and whether it is possible to enforce it
V. Whether there are any remedies available to the vendor

14 | Page
 C. Analysis of the Issues
I. Whether Mr. Money Bag Can Rescind the Agreement and the Steps to be taken before the
Rescission
The Law Society of Kenya Conditions of sale provides that when a purchaser fails to complete a
purchase the Vendor Advocate is required to serve the Purchaser or Purchaser’s advocate a completion
notice.33 The Purchaser is unable to complete the sale therefore Mr. Money Bags suffers loss as a result
instructs us to rescind the agreement. In case the purchaser complies with the notice, (Annexure 1-
completion notice served to the purchaser) he will be required to pay the purchase price as well as the
compensation for late completion.34

If the Purchaser fails to complete the purchase after the completion notice has been served, the Vendor
may rescind the agreement and without prejudice to his rights in law and equity: declare the property
forfeited and keep the deposit of 10% of the purchase price, sell the property and any contents to the
third party, and/or claim damages from purchaser.35

Additionally, the purchaser will be required to return the certificate of title and documents in his
possession that belong to the Vendor and at his own expense procure the cancellation of any entry
relating to the Agreement in any register.36

II. Whether Estate Agents Have the Right to Commission

After conducting our due diligence we discovered that the estate agents were not registered. The Estate
Agents Act states that no agent shall practice without being registered and it would be an offense to do
so. It further states that for an estate agent to earn a commission then they have to be registered. 37 The
court was also in agreement with this position in the case of Mapis Investment (K) Limited vs. Kenya
Railways Corporation.38

Consequently, Karatasi Estate Agents shall not receive their commission since they are unregistered
and the transaction is incomplete.

33 LSK Conditions of Sale 2015, Condition 13.4.1

34 LSK Conditions of Sale 2015, Condition 13.2.1.
35 LSK Conditions of Sale 2015, Condition 13.4.1.
36 LSK Conditions of Sale 2015, Condition 13.4.1.
37 The Estate Agents Act, s 18.
38 [2005]eKLR.
15 | Page
 III. Whether the Witnessing of Sale Agreement by a Lawyer Who Does Not Have a Current
Practicing Certificate Invalidates the Whole Transaction
On conducting due diligence our Firm discovers that the lawyer who witnessed the sale agreement for
Express Purchasers Limited does not have a current practicing certificate. The Advocates Act states
that no unqualified person is to take instructions, draw or prepare any document or instrument relating
to conveyancing.39 Further, executions of all documents should be effected in the presence of an
Advocate.40

In the National Bank of Kenya Ltd v Wilson Ndolo Ayah conveyance documents were prepared by an
unqualified person. The Court of Appeal invalidated the legal documents stating that they were not
register-able in accordance with S.34 of the Advocates and s.19 of the Stamping Duty Act. Therefore
they declared the charge and deed of guarantee invalid.41

However, in National Bank of Kenya Limited v Anaj Warehousing Limited, 42 the Supreme Court
went against the decision of the Court of Appeal. The Court stated that the Act was worded
“unqualified persons” were ambiguous and uncertain. It may mean someone without a practice
certificate who is not an advocate within the terms of Sections 2, 12, and 13 of the Advocates Act.
Further, it held that section 34 of the Advocates Act was silent as to the effect of documents prepared
by advocates not holding current practicing certificates. Therefore, this means that section 34 of the
Advocates Act does not invalidate an instrument or document of conveyance prepared by an advocate
who, at the time, did not hold a practicing certificate. However, documents prepared by other
categories of unqualified persons shall be void for all purposes and intent.

Following the judgement of the Supreme Court, stating that provisions of Section 34 were vague,
parliament amended the Advocates Act by inserting Section 34B which states that the validity of the
document is not affected even if the Advocate did not have a valid practicing certificate.43

In the case in question, the lawyer for Express Purchasers Limited did not draft the agreement. He only
witnessed the agreement. That notwithstanding, the witnessing of the sale agreement by the Advocate
without a valid practicing certificate did not invalidate the sale agreement though it was not completed.

39 Advocates Act, s 9 & 34

40 Land Registration Act, s 44
41 [2009] eKLR.
42 [2015] eKLR.
43 Advocates Act, s.34B.
16 | Page
 IV. Whether There Was a Professional Undertaking and Whether It Is Possible To Enforce It
The professional undertaking was issued by the purchaser’s Advocate and they agreed with all the
terms. The purchaser’s advocate despite issuing a professional undertaking has failed to fulfill their
obligations. On further inquiry, it was discovered that the purchaser's balance was in the bank which
was under receivership. The LSK Code of Standards of Professional Practice and Ethical Conduct
provides that a Professional Undertaking is enforceable against the Advocate personally therefore it is
upon the said advocate to ensure that he exercises care when issuing out a professional undertaking. 44
The court in Harit Sheth t/a Harit Sheth Advocate v K. H. Osmond t/a K. H. Osmond Advocate 45 also
affirmed this position and went further to state that when an advocate is issuing out a professional
undertaking then they have the funds in their clients' account. That notwithstanding, it would not be an
excuse for an advocate to claim that the client did not place the funds in his account, he would be held
liable as it was done in Kenya Re-insurance Corporation v. V.E. Muguku Muriu.46

The process of enforcing a professional undertaking was captured in Nelson Andayi Havi t/a Havi &
Company Advocates v. Jane Muthoni Njage t/a J.M Njage & Company Advocates that the first step is
to apply to the court for an order of the defaulting advocate to honour the undertaking and when he
fails one to seek an order for enforcement. 47 This provision is also provided for in the Civil Procedure
Rules Order 52 rule 7.

This right does not in any way touch on Mr. Money bags since professional undertakings are between
Advocates as it was held in David Karanja Thuo vs. Njage Waweru.48 On the other hand, the
purchasers can claim that the contract was frustrated by the Bank going into receivership. The House of
Lords defined frustration in National Carriers Ltd v Panalpina (Northern)Ltd49 as the supervening
event that occurs which is not the fault of either party or provided for in the contract of sale which
considerably changes the current contractual right and obligations from what the parties had intended at
the time of executing that contract. Therefore it would be unfair to hold them to the literal sense of this
stipulation. When such a case happens both parties are to be discharged from the contract. In the case
in question, the contract for sale has been frustrated by the Bank going into receivership, accordingly,
the parties will be discharged from further performance of the contract.

44 LSK Code of Standards of Professional Practice and Ethical Conduct, Principle 9.

45 [2011] eKLR.
46 [1996] eKLR.
47[2015] eKLR
48[2008] eKLR
49 [1981] A.C. 675, 700.
17 | Page
 V. Remedies Available to the Vendor
The LSK conditions of sale also provide that the Vendor shall retain his rights and remedies 50 which
may include:

i. Specific performance
If the vendor is the wronged party he can take an action for a specific performance However, if the
vendor goes for specific performance he is precluded from forfeiting the deposit.51

Specific performance is an equitable remedy and depends on the discretion of the court; it will not be
available to the vendor who has been guilty of unfairness or where it would cause hardship to the
purchaser.52

If the vendor decides against specific performance he may opt for any of the different remedies
(a) He can forfeit the deposit
(b) He can rescind the contract and claim the expenses he incurred.
(c) He may treat the contract as repudiated, resell the property and recover his expenses and any loss of
the resale but if he adopts this method, he must allow for the deposit paid by the purchaser.
(d) Lastly he may treat the contract as repudiated and sue the purchaser for damages for breach of
contract. The extent of the damages will be the difference between the contract price and the market
price but again he must give credit for the deposit.53

ii. The right of re-entry into the property.

If Express Purchasers have entered into the property then the vendor has the right to re-enter into the
property by assuming possession of the peaceably or obtaining an order of the court. 54 The vendor
however has to serve a notice to the purchaser stating:
a. nature and extent of the breach complained of
b. Whether the breach can be remedied by paying the amount owing in the contract,
c. The period in which the purchaser shall remedy the breach if the vendor considers the breach
can be remedied,
d. The consequences where the purchaser fails to remedy the breach.

50 LSK Conditions of Sale 2015, Condition 13.4.2.

51 Tom Ojienda, ‘The Principles of Conveyancing: A Practical Approach’ (May 2007).
52 Anne Murambi v John Munyao Nyamu & another [2018] eKLR.
53 Anne Murambi v John Munyao Nyamu & another [2018] eKLR.
54 Land Act s.39
18 | Page
If the vendor considers that the breach cannot be remedied the vendor will seek an order from the court
to possess the land and rescind the agreement. 55 The vendor can also apply to court after re-entry on to
land for relief against rescission of the contract either in proceeding for an order for possession or
proceedings brought by the purchaser.

iii. Seek damages for breach of Contract

The vendor may claim damages and mesne profits for the breach of contract for sale entered between
the purchaser and the vendor.56

55 Land Act s.41

56 Land Act s.40.
19 | Page
SAMPLE OF COMPLETION DOCUMENTS

Annexure 1: PIN Certificate

20 | Page
Annexure 2: Colored passport size photo

Annexure 3: Copy of Identification Card (ID)

21 | Page
Annexure 4 : Certificate of Title

22 | Page
Annexure 5: Copy of Title deed

23 | Page
Annexure 6: Land Rate Clearance Certificate

24 | Page
Annexure 7: Spousal Consent to Transfer

SPOUSAL CONSENT TO TRANSFER

(Under Sections 28 and 44 of the Land Registration Act, No.3 of 2012

and the Land Act, No.6 of 2012)

I, Money bag of care of Post Office Box Number ……

123456………………., Nairobi aforesaid being the husband of the Transferor the said LYDIA MITEI
hereby confirm that I am cognizant of the provisions of the Land Act (No. 6 of 2012), the Land
Registration Act (No.3 of 2012) and the regulations regarding disposition of Matrimonial Properties
and HEREBY CONSENT for the transfer of the Property as aforesaid such consent to remain valid
until the said Transfer is fully registered.

I further confirm that neither the Transferor nor the Transferee or any other person have used any
compulsion or threat or exercised undue influence on me to induce me to execute this consent.

SIGNED by the Spouse the said )

) *............................................... Signature

in the presence of: )

Advocate )

25 | Page
Annexure 8: Certificate of Official Search

26 | Page
 Annexure 9: Duly Executed Transfer form

Annexure 10: Completion Notice

27 | Page
NOTICE TO COMPLETE PURCHASE OF TITLE NUMBER 007/21 BOND
STREET/LANGATA NAIROBI COUNTY

TO: EXPRESS PURCHASERS LIMITED

KRA PIN A01259874563
P.O Box 1256-00100
NAIROBI

WE, TWELVE AND TEN ADVOCATES, as advocates for and on behalf of Money Bags of ID
Number 563658 and of care of P.0. Box Number 563-00100, Nairobi [the “Vendor") hereby give you
notice pursuant to the Agreement for Sale between the Vendor and Purchaser therein (the
"Agreement"), and Clause …..(Please fill with the relevant clause) as follows:

1. THAT the Vendor, in accordance with the provisions of the Agreement, is ready able and willing to
complete the sale of ALL THAT piece of land known as Title number 007/21 Bond street/ Langata
Nairobi County [hereinafter the "Property").

2. THAT you have made default in complying with your obligations under the Agreement in that:
2.1 You have failed to provide the Vendor with the Balance of the Purchase Price in the sum of
Kenya Shillings Twenty Seven Million [Kshs.27, 000,000/-).

3. THAT you are hereby required to make good such default by completing the purchase of the
Property, in accordance with the provisions of the Agreement, before the expiration of Twenty One
[21) days from the date of service of this notice and that if you fail to comply with this notice within
the time aforesaid the Purchaser shall be entitled to enforce the rights powers and remedies conferred
upon them by law.

DATED the 6th September 2021

MEETING MINUTES

28 | Page
MINUTES OF CLASS A FIRM 12 HELD ON 30TH JULY 2021 VIA MICROSOFT TEAMS AT
2:00 PM

Members Present

(Microsoft Teams Generated Attendance Attached)

Agenda

1. Preliminaries
2. Read and Discuss the Conveyancing Project Question
3. Coming up with an Research Outline
4. A.O.B
5. Adjournment

Preliminaries

The meeting started off with a prayer from Lydia Kahiga. The firm leader Nyakweba Wendy thanked
members for attending the meeting and being punctual despite the technical challenges of using
Microsoft Teams. This being the first meeting we were holding in regards to the conveyancing project,
there were no previous minutes to be read for confirmation, therefore the meeting began directly with
its Agendas.

Trizah Ombewa was tasked to write the minutes of the meeting as she was voted the Subject
Coordinator for Conveyancing. She projected the question on our Microsoft teams Platform for
discussion

Min 1 : 30/07/09/21: Read and Discuss the Conveyancing Project Question

Lydia Kahiga lead in reading the questions before members picked out the main issue to be addressed
in the project work as follows:

I. Role of advocates for the vendor and purchaser

II. Professional undertaking required to by the advocates
III. Sale agreement drafting
IV. Completion date for the contract

29 | Page
 V. Implication of an advocate without a practicing certificate
VI. Members agreed to start by discussing the first part of the question by focusing on
understanding the role of advocates in a conveyancing transaction.

Min 2 : 30/07/09/21 :Research outline

I. Role of Advocates in a conveyancing transaction

II. Wakili Investments
III. Firm twelve and tens Company advocates
IV. Drafting a sale agreement
V. The professional undertaking
VI. Samples of completion documents

Min 3 : 30/07/09/21: Role of Advocates

Hesbon Nyagaka and Mitei Kipkorir asked members to refer to the law society guideline on the
roles of advocates for members to refer to some of the roles discussed in the meeting as identified from
the question included;

I. Taking instruction from the vendor

II. Drafting the sale agreement
III. Receiving the purchase price and deposit
IV. Investigating the title of the land
V. Obtain any information for any encumbrances
VI. Obtaining full details of the parties

Caren Unity then raised the question of how many searches an advocate should conduct in a
conveyancing transaction.

Julius Wamboi explained that it is important to conduct a search as an advocate for purposes of
carrying out due diligence. The advocates should conduct their own searches to ascertain the validity,
ownership and existence of the land in question.

Erick Wango explained that a search at the register of persons was important because there have been
many cases of people impersonating themselves and pausing as vendors or purchasers of the land.
While an advocate may look at the identification cards it doesn’t cause any harm to further confirm the
right identification.

30 | Page
Lena Musingo suggested that members break the role of advocates in the following sections

1. Pre contractual
2. Contractual
3. Post contractual

Members went on to discuss the process of a conveyancing transaction

Wendy Nyakweba started by saying both the vendors and the purchasers Advocates have the duty to
obtain information from their client. The information included:

1. The full legal names of the clients

2. The particulars of the land being sold or being bought
3. The buying or selling price
4. The general financial cost to be incurred such as that of stamp duty among others
5. The condition of the land at the time of the transaction in regard to the rent and rates clearance
as well as encumbrances.

Trizah Ombewa added that there is a distinct role between the vendors and purchasers advocate,
Lydia Kahiga added that the vendors advocate has the duty to draft the sale agreement while the
purchasers advocates has the duty to approved the sale agreements as well as scrutinized and
investigate titles and completion documents obtained and sent from the other party’s advocate .

Members discuss the role of the vendor advocate to approve the transfer of the title of the particular
land while the purchaser's advocate has to engross and ensure the transfer is registered .Victor
Kipkemboi then added that advocates have a critical role to be accountable to the clients, the advocate
has the duty to ensure they account for any money received from or for their client.

The accountability came in where the advocate for the vendor receives the proceeds of the sale of land
on behalf of the client while the purchaser's advocate receives or obtains money from the purchaser
which is used to pay for purchase price as consideration in the transaction. Members in the discussion
agreed that putting in writing every document as part of the formality and the importance of execution
and witnessing of the signing of documents.

Members briefly went through the LSK conditions of sale led by Kipkorir Mitei. Trizah Ombewa
raised concern in regard to a case scenario where a transaction involves a company.Wendy Nyakweba
explained one would treat it the same as an artificial individual in the transaction .Kipkorir Mitei

31 | Page
added that there is a register of companies where one can do a search to confirm legality and
existence.Hesbon Nyagaka added that in the case of a company where it’s not clearly stated in their
bylaws or memorandum that there are companies representatives then the members of the company
passes a resolution indicating that particular persons act on behalf of the company .The authority given
must be writing and with consent of all shareholders or as guided by the companies framework.

Min 4 : 30/07/09/21: AOB

Erick Wango sought to engage members on how many people were willing to have physical meetings
and who was within Nairobi.

Members had a discussion on the same and agreed that they would meet through the next week four
times to finish the conveyancing work.

Trizah Ombewa explained she will put together her notes for the meeting minutes.

Wendy Nyakweba asked members to research on professional undertaking which was the next part of
the project question .Members agreed the meetings would be taking two hours and should include
extensive discussion beyond the limits of the question.

Min 5 : 30/07/09/21: Adjournment

The meeting ended at 5:14 pm

The next meeting was scheduled for Monday 2nd August 2021 at 2:30pm a Kenya school of law

.................................

Trizah Ombewa

Secretary

…………………….

Nyakweba Wendy Magoma

32 | Page
Chairperson

33 | Page
MINUTES OF CLASS A FIRM 12 HELD ON 2nd AUGUST 2021 AT KENYA SCHOOL OF
LAW AT 2:30 PM

Members Present
1. WENDY NYAKWEBA ………………………….
2. KIPKORIR MITEI ………………………….
3. ERIC WANGO ………………………….
4. JULIUS WAMBOI ………………………….
5. LENA MUSINGO ………………………….
6. LYDIA KAHIGA ………………………….
7. TRIZAH OMBEWA ………………………….
8. CAREN UNITY ………………………….
9. HESBON NYAGAKA ………………………….
10. VICTOR KIPKEMBOI ………………………….

Member Absent Without Apology

1. VERAH MURUNGA (Deferred)

Agenda

1. Preliminaries
2. Reading and confirmation of minutes
3. Matters arising
4. Professional undertaking
5. A.O.B
6. Adjournment

Preliminaries
The firm leader Nyakweba Wendy prayed and welcomed members to the meeting .This being the
first Physical meeting members introduced themselves again before previous minutes were read and
confirmed.

Min 1 02/08/21: Reading and confirmation of minutes

The unit coordinator Trizah Ombewa read the previous meeting minutes.

34 | Page
Min 2 02/08/21: Matters arising

Julius Wamboi asked whether it was important to have it expressly written in the minutes as discussed
that an advocate should have both a client and personal account.In response with added explanation
from Lydia Kahiga members agreed it may be difficult to have in the minutes everything discussed
word for word but it would be good to have the same captured in the submission of the project work
itself .

Min 3 02/08/21: Professional undertaking

Hesbon Nyakweba tried to explain what professional undertaking is a promise given by or on behalf
an advocate to do or procure something on behalf of the client .The client being money bag it was
professional for money bag to give money to be held by the advocate for the purpose of the sale .Then
the advocate could not issue an undertaking from the other party that at the completion date we are
going to pay this much which have at hold .The promise cannot be given by an advocate if they are not
having a hold of the money f the client .Assure them that you have the money if you give the assurance
and you don’t have the money it would be immaterial and one will be forced to pay the money.

Erick Wango explained that a professional undertaking is formed on the basis of a mutual trust
between the parties .Julius Wamboi added that there are sanctions an advocate would be held
accountable for failure to fulfill any of the professional undertaking promised .He will be held
responsible for professional misconduct. Members discussed examples of instances where professional
undertaking can be taken for settlements of arrangements such as in discharging an obligation, in
instances where a loan is involved

Mitei Kipkorir added that professional undertaking is between the advocate and the client where they
are held accountable for failure to fulfill a part of their contract. Victor Kipkemboi agreed to share a
sample of a professional undertaking on the firm's Whatsapp group, before explaining that a
professional undertaking basically outlines what the advocate will do under what conditions as well as
what will be required .

Trizah Ombewa added that it was important to ensure that a professional undertaking that one is
giving as an advocate can be implemented therefore important to consider practicality and possibility
of it being pursued.

35 | Page
 Wendy Nyakweba pointed out that there are principles of professional undertaking which members
agreed included the following:
A professional undertaking is required to be honored between the giver and the recipient of the same.
It is a legal obligation for advocates to any professional undertaking, Caren Unity added that failure to
which a disciplinary action or measure may be taken against the person who gives the undertaking.
Lena Musingo asked what actions can be taken against an advocate for failing to honour an
undertaking Lydia Kahiga explained that the Court may at any time on application of the recipient
enforce the PU. Hesbon Nyagaka added the Law Society of Kenya may also take disciplinary action
against an advocate because the failure to honor a PU may be termed a professional misconduct
Victor Kipkemboi explained where the PU given is not clear but ambiguous it is generally presumed
and held in favor of the recipient
Lydia Kahiga stated that In the case where an advocate is in a partnership such as a firm and given an
undertaking all the other partners are held responsible for and to ensure the undertaking is performed.

Min 4/13/09/21: AOB

Members were reminded the next part of the question involved the drafting of a sale agreement and
could take longer time in the discussion .Erick Wango urged members to read sale agreement samples
as this would help members quickly go through the discussion in a short time .Hesbon Nyagaka then
requested members to come with samples of a sale agreement for reference. It was suggested that
members meet in the morning on Wednesday since there was no morning class

Min 5/13/09/21: Adjournment

The meeting ended at 5:37PM

The next meeting was scheduled for Wednesday 4th August 2021 at 8.30 am on Microsoft teams

.................................
Trizah Ombewa
Secretary

36 | Page
…………………….
Nyakweba Wendy Magoma
Chairperson

37 | Page
MINUTES OF CLASS A FIRM 12 HELD ON 4TH AUGUST 2021 VIA MICROSOFT TEAMS
AT 2:30 AM

Members Present
(Microsoft Teams Generated Attendance Attached)

Agenda

1. Preliminaries
2. Read and confirmations of previous minutes
3. Matters arising
4. Sale agreement
5. A.O.B
6. Adjournment

Preliminaries

The meeting started off with a prayer from Caren Unity. The firm leader Nyakweba Wendy
welcomed members to the meeting. Trizah Ombewa reminded Wendy Nyakweba to record the
session before projecting minutes on the screen

Min 1: 4/8//21: Reading and confirmation of previous meeting minutes

Mitei Kipkorir assisted in the reading of minutes that were projected on the screen

Min 2: 4/8//21: Matters arising

Victor Kipkorir confirmed whether everyone received a sample of the professional understating he
was to share via the app group. Erick Wango asked to share a sample of sale agreement for Trizah
Ombewa to project for discussion of the sale agreement question .

Min 3: 4/8//21: Sale Agreement

Caren Unity pointed that we cannot draw a sale agreement unless we know the content. Julius said
that the LSK rules of sale have on what should be contained in a sale agreement. The firm then
discussed some of elements that must be in a sale agreement

38 | Page
 ● In line with the question and the LSK sale rules the agreement must contain the parties names
for the vendor and the purchaser
● The property identification
● Definition section
● Consideration
● Mode of payment
● Bank details of the vendor
● Completion date which is 90 days
● Intentions of both parties
● The purchase price and the agreement of the purchase price
● Alternative dispute resolution
● Special and general conditions Such as inspection of the property and the general condition
whether the purchase price has been paid

Erick Wango joined in that the identification section has to capture particulars of their parties
including their residence. The definition part was agreed to include things such as what we mean by
completion date, transfer among others. Wendy Nyakweba then pointed out that the conflict resolution
clause was important to be part of the sale agreement .whether alternative dispute resolution or court,
such as the agreement will be guided by the laws of Kenya where the courts of Kenya shall have
exclusive jurisdiction over the matter.

Hesbon Nyagaka deferred explaining that it was not must to have the definition part but one could add
at the end that the sale agreement can be pointed. Lydia Kahiga interjected explaining the governing
law must be clearly stated quoting the teacher referring to the Legal Notice No 278 on defining words
such as completion date.

Trizah Ombewa then led the discussion group to the next step of drafting a sale agreement discussing
the most important components of a sale of agreement such as ;

● Dates
● The details of the land and how much can be sold
● Details of parties and their addressed and ID number
● Definitions and interpretations
● Dispute resolution section
● The description of parties

39 | Page
 ● Purchase price
● Statement of the agreement to sell and agreement to buy
● Default :Statement expressing how to go about breach
● Remedies for a breach

Question raised in regard to the parties to the agreement as express limited was a company hence a
needed someone to act on it behalf by the agreement to have a director on behalf of express
purchasers .Lydia Kahiga expressed that we should have a pin number or registration number of the
company as part of the company details .Julius Wamboi added Law Society Conditions of Sale
definitions should be part of the definition sections.

Mitei Kipkorir explained that the completion date should be at the end of 90 days from the time the
contract .Erick Wamboi expressed that it’s important to include the bond street detail for precise
identification of the land The purchase price was agreed on to be at 30 million with a deposit of
10percent .Lena Musingo raised a concern in regard to the 3percent commission of the purchase
praise given to be the agents karatasi agents .Victor Kipkemboi expressed that it should be in a
clause on its own .

Members reached a conclusion that amendments should be effective unless signed by the parties

Alternative Dispute Resolution was discussed as to assist where conflict arise and guides how to go
about it and if any negotiation agreement that come could be adopted by the court as long as they are in
line with the law

Erick Wango then brought in the issue of attachment of the resolution of the company that the
director would act on behalf of the company .Trizah Ombewa then added that it’s important to have
an attachment of the resolution from the company as part of the annexures .Mitei Kipkorir then
opposed asking that they are being represented by the advocate the copy of the resolution is not needed.

Lydia Kahiga referred to civil ligation class where resolution was needed where a person wants to sue
a company or vice versa, explaining that she believed it would be applicable in this question where the
company is involved in a buying of property transaction .However she differed on suggestion of having
a special resolution

Members ended up agreeing that it was not necessary to have a special resolution as part of the
annexures. The group discussed how the execution part would appear before ending the meeting.

40 | Page
Min 4: 4/8//21 : AOB

Members agreed since everyone was available in Nairobi they could meet physically the next day.
Having that there was a requirement to have samples of completion documents Julius Wamboi and
Erick Wango agreed to come with sample of the documents for members to go through as it was
important.

Adjournment

The meeting ended at 10.32 am

The next meeting was scheduled for Thursday 5th August 2021 at 2.30 pm at Kenya School of Law

.................................
Trizah Ombewa
Secretary

…………………….
Nyakweba Wendy Magoma
Chairperson

MINUTES OF CLASS A FIRM 12 HELD ON 5TH AUGUST 2021 AT KENYA SCHOOL OF

LAW FROM 2:30 PM

Members Present
1. WENDY NYAKWEBA ………………………….
2. KIPKORIR MITEI ………………………….
3. ERIC WANGO ………………………….
4. JULIUS WAMBOI ………………………….
5. LENA MUSINGO ………………………….
41 | Page
 6. LYDIA KAHIGA ………………………….
7. TRIZAH OMBEWA ………………………….
8. CAREN UNITY ………………………….
9. HESBON NYAGAKA ………………………….
10. VICTOR KIPKEMBOI ………………………….
Member Absent
1. VERAH MURUNGA (DEFERRED)

Agenda

1. Preliminaries
2. Reading and confirmation of previous meeting minutes
3. Matters arising
4. Completion documents
5. A.O.B
6. Adjournment

Preliminaries

Trizah Ombewa opened the discussion with a word of prayer before welcoming members to the
meeting

Min 1 5/08/21: Reading and confirmation of previous meeting minutes

Trizah Ombewa read the previous meeting minutes

Min 2 5/08/21: Matters arising

Julius Wamboi and Victor Kipkemboi have confirmed to have carried the sample documents with
them.

Min 3 5/08/21: Completion documents

Trizah Ombewa made reference to the LSK Conditions of Sale 2015 explaining that completion
meant the act of completing the sale of the property which in this case was the land. The completion
included the process of transferring the interest the vendor has on the land to the purchaser. This meant
that they grant the person buying the property all legal possession.

42 | Page
Completion in the transaction then takes place when the vendor surrenders the necessary registrable
documents while the purchaser gives the balance of the purchase price to the vendor.

Members went on to discuss the following :

1. The date of completion

2. The venue of completion
3. The completion documents
4. Obligation of parties at completion
5. Completion notice

Completion date

Members agreed that the completion date should be set at the mark of 90 days from the time of signing
of the contract . Julius Wamboi explained it was important to have a completion date specified in the
sale agreement but can be extended mutually. In the case where time is very essential the specified
dates must be strictly adhered to.

The venue of completion

Lydia Kahiga led the group to discuss the general rule that the completion venue should be at the
vendors' advocates offices unless otherwise agreed mutually by the parties. Caren Unity Referred to
the LSK conditions of sale explaining that where the agreement states the venue and time then the
completion must take place in the specified place. Trizah Ombewa pointed out that in case it’s not
specified then the completion is done at the vendor’s advocates office.

Obligation of parties at completion

Lena Musingo explained parties have duties to fulfill to ensure that the contract is complete .The
vendor exchanges the completion documents and receives the purchase price from the purchaser.Caren
Unity added that the title is transferred upon registration this comes later after parties have completed
the settlement of the transaction

Julius Wamboi asked the members whether they understood what “Force majeure” is Victor
Kipkemboi Stepped in and explained it entailed things like fire, earthquakes and other acts of God
which may be beyond the a person’s ability and may hinder fulfillment of one's part of the
contract .Failure to perform part of the contract due to “Force majure” they cannot be held liable.
Lydia Kahiga asked that the concept be explained further which Julius broke down that where a party
43 | Page
to a contract is hindered from fulfilling his part due to reasons beyond human capacity such as
earthquake then the party cannot be held liable .

The inclusion of Karatasi Estate Agent became a contentious issue on where exactly they fall in the
whole transaction of the sale agreement. Julius Wamboi pointed out that the Karatasi agent should
not be ignored because they affect the transaction cost for the sale .Since it was agreed that they would
take three percent of the purchase price .Wendy Nyakweba agreed they shouldn’t be part of the sale
agreement since it was a verbal agreement hence she did not see how they could be included.

Lydia Kahiga however asked that it would be right to include them as an agent in exact clear language
since they were given the duty to look for the property. However the team failed to agree on the
exclusive inclusion of the agents in the sale agreement.

Completion documents

Members agreed that the completion documents in the particular case scenario included :

1. Certificate of Title
2. Duly executed transfer
3. Original Valid rent clearance certificate
4. Original valid land rates clearance
5. Copies of latest utility bills,
6. Vendors ID /Passport
7. Coloured passport size photos
8. Spousal consent
9. Pin Certificate
10. Title deed

Julius Wamboi pointed out that it would also be fit to have an affidavit in place of a spousal consent
in the case where a party is not married .

Trizah Ombewa responded to the question on the consent by land board explaining that consent is
needed where it’s an agricultural land, which is not the case in consideration with where the land is
located

Members concluded and agreed to have some form filled in from the Land Act .

Min4 5/08/21: AOB

44 | Page
Members agreed to finish the final question of the project work the next day to allow the next week for
discussion of other units.

Adjournment

The meeting ended at 4.45 pm

The next meeting was scheduled for Friday 6th August 2021 at 2:00 PM at Kenya School of Law

.................................
Trizah Ombewa
Secretary
…………………….
Nyakweba Wendy Magoma
Chairperson
MINUTES OF CLASS A FIRM 12 HELD ON 6th AUGUST 2021 AT KENYA SCHOOL OF
LAW FROM 2:00PM

Members Present
1. WENDY NYAKWEBA ………………………….
2. KIPKORIR MITEI ………………………….
3. ERIC WANGO ………………………….
4. JULIUS WAMBOI ………………………….
5. LENA MUSINGO ………………………….
6. LYDIA KAHIGA ………………………….
7. TRIZAH OMBEWA ………………………….
8. CAREN UNITY ………………………….
9. HESBON NYAGAKA ………………………….
10. VICTOR KIPKEMBOI ………………………….
Members Absent

1. VERAH MURUNGA (Deferred)

Agenda
45 | Page
 1. Preliminaries
2. Reading and confirmation of previous meeting minutes
3. Matters arising
4. Implication Of An Advocate Without A Practicing Certificate
5. A.O.B
6. Adjournment

Preliminaries

Erick Wango opened the discussion with a word of prayer

Min 1 6/8/21: Reading and confirmation of minutes

Mitei Kipkorir read the minutes for the previous minutes

Min 2 6/8/21: Matters arising

There were no matters arising

Min 3 6/8/2 : Advise Mr. Money Bags of his rights and liabilities as relates to this transaction.

Members met to discuss the rights and liabilities that arose in the case scenario and reached a
consensus to discuss the following liabilities and rights.
1. Whether Mr. Money Bag can rescind the agreement and the steps taken before the rescission
2. Whether there was a professional undertaking and whether it is possible to enforce it
3. Whether Estate Agents have the right to commission
4. Whether the witnessing of sale agreement by a lawyer who does not have a current practicing
certificate invalidates the whole transaction?
5. Whether there was a professional undertaking and whether it is possible to enforce it
Members agreed where the Purchaser is unable or fails to complete the purchase after the completion
notice has been served, the Vendor may rescind the agreement and without prejudice to his rights in
law and equity. Lena Musingo asked whether the money paid at first is returned Victor Kipkemboi
explained that the paid deposit is kept by the vendor and the vendor could declare the property
forfeited.

There are no limitations once the owner declared the property forfeited and can sell the property to
another third party, and/or claim damages from purchaser

46 | Page
Julius Wamboi added that the purchaser returns the completion documents in his possession that
belong to the Vendor and at his own expense procure the cancellation of any entry relating to the
Agreement in any register

There was a bit of disagreement on whether the fact that the advocate drafting the transactions
document did not have a valid practicing certificate made the documents invalid.
The group referred to two landmark cases: Rajdip Housing Development Civil appeal no 4 of 1991 and
the Supreme Court ruling on Anaj Warehousing v The National Bank of Kenya.
Having that the lawyer who witnessed the sale agreement for Express Purchasers Limited did not have
a current practicing certificate members reached an agreement based on Section 34B explaining that
validity of the document was not affected by the fact that the Advocate did not have a valid practicing
certificate. The Advocate without a valid practicing certificate did not invalidate the sale agreement
though it was not completed.
In regard to the payment of Karatasi Estate Agents members agreed that they could not be paid
commission since they are unregistered and the transaction is incomplete.
Wendy Nyakweba asked members to discuss the remedies available to the Vendor. Members agreed
the remedies in the case scenario included;

I. Specific performance
II. The right of re-entry into the property
III. Seek damages for breach of Contract
Lydia Kahiga and Trizah Ombewa discussed the availability of the right to claim damages where
there is a breach for the breach of contract for sale entered between the purchaser and the vendor.
Hesbon Nyagaka explained that performance is an equitable remedy and depends on the discretion of
the court.

Group members then split the different subtopics for discussion among the firm members for
compilation

Sale agreement –Trizah Ombewa and Wendy Nyakweba

Professional undertaking –Mitei Kipkorir and Caren Unity

The role of advocates -Lena Musingo and Julius Wamboi

Sample documents - Erick Wango

47 | Page
The rights and liabilities of the advocates in the transaction -Lydia Kahiga and Victor Kipkemboi

Min 4 6/8/2: AOB

The Firm Leader thanked the members for making time to attend the meeting .There being no other
business, members agreed to discuss on the whatsapp group on the next agreeable date and time to
meet and go through the entire work.Members agreed to meet after a week to discuss the progress of
the compiled work.

Min 5 6/8/2: Adjournment

The meeting ended at 4:10 pm

The next meeting was scheduled for Friday 13th August 2021 at 8.00 pm on Microsoft teams

.................................
Trizah Ombewa
Secretary

…………………….
Nyakweba Wendy Magoma
Chairperson

48 | Page
MINUTES OF CLASS A FIRM 12 HELD ON 13th August 2021 VIA MICROSOFT TEAMS
AT 8:00 PM

Members Present
(Microsoft Teams Generated Attendance Attached)

Agenda

1. Preliminaries
2. Reading and confirmation of previous meeting minutes
3. Sale agreement
4. Professional undertaking
5. The role of advocates
6. Sample documents
7. The rights and liabilities
8. A.O.B
9. Adjournment

Preliminaries

The meeting started off with a prayer from Julius Wamboi . The firm leader Nyakweba Wendy
thanked members for attending the meeting and being punctual despite the technical challenges of
using Microsoft Teams. She projected the question on our Microsoft teams Platform for discussion

Min 1 13/09/21: Reading and confirmation of previous meeting minutes

Lena Musingo read the previous minutes

Min 2 13/09/21: Matters arising

There were no matters arising

Min 3 13/09/21: Sale agreement

Members went through the draft of the the sale agreement compiled by Trizah Ombewa and Wendy
Nyakweba .However the members raised concerns with the part of execution and asked that it be
aligned

49 | Page
Members also agreed the deputy director should also be part of the execution

Julius Wamboi also added that the time is of essence clause which members agreed with Lydia
Kahiga also pointed out the importance of having a distinct clause on cost incurred by parties such as
for stamp duty Caren Unity and Erick Wamboi pointed out that there was need to add the sanctions
for default in regard to the provisions of law.

Min 4 13/09/21: Professional undertaking

Hesbon Nyagaka and Trizah Ombewa raised issues with the set of the draft as it was written by the
vendors advocate instead of the purchasers advocate .Members had a brief discussion and
recommended the following changes;

● To interchange the addresses

● To have the whole draft of the undertaking restructured and written as if it was coming
from the purchaser's advocate
Min 5 13/09/21: The role of advocates

Members went through the draft and recommended the role of both advocates should be addressed
under divided subtopics to allow the flow in reading and understanding.

Mitei Kipkorir also added that it would be good to have the role of advocates looked into as per the
different stages of the transactions chronologically

Min 6 13/09/21: Sample documents

Erick Wango presented the sample documents needed in the said transaction however there were
challenges with getting a copy of a transfer of title and copies of coloured passports and identification
card .Victor Kipkemboi volunteered to share copies of the same in the whatsapp group firm platform

Min 7 13/09/21: The rights and liabilities of the advocates in the transaction

Lydia Kahiga and Victor Kipkemboi shared on the rights and liabilities of the advocates. The work
was inclusive however members agreed to reduce a few words to avoid going beyond the page limits.

Min8 13/09/21: AOB

Members agreed to submit all drafts to Trizah Ombewa by 8th October 2021 and the final compilation
be sent to the group for printing by 20th of October.

50 | Page
Adjournment

The meeting ended at 10.40pm

.................................
Trizah Ombewa
Secretary

…………………….
Nyakweba Wendy Magoma
Chairperson

51 | Page