SEMINARS ONE AND TWO

THE MEANING OF CONVEYANCING

Conveyancing is the area of an Advocate’s business that deals with the alienation of an interest in land
from one person to another. To convey is the act of alienation of an interest by means of an appropriate
instrument or document. Conveyance is an instrument transferring an interest in land from one person to
another. Examples of conveyances include mortgage or charge, transfer, lease etc.

Conveyancing has been defined as the process by which legal title to property is transferred. The
Council of Licensed Conveyancers in England and Wales on the other hand define Conveyancing as ‘the
legal process of transferring a house or flat, commercial property or piece of land from one owner to
another.’ Both definitions may however be limiting as conveyancing involves more than just drafting
and registering documents. Conveyancing may also involve a simple modification of title or even an
involuntary transfer of an interest eg sale by a mortgagee. It may thus be more appropriate to define
conveyancing as the art or science of conveying or effecting the transfer of legal property or modifying
interest in relation to property by means of a (written) document. The three critical ingredients are thus
the process, the legal title and the transfer or modification. It is the generic term used to sum up the
procedures used in disposal and/or acquisition of interest in real property. The process is what is
basically referred to as Conveyancing practice or protocol – which refers to the branch of advocacy in
real property transactions or the procedural side of the coin of which the law of property is the
substantive side. The legal title or interest to be transferred or modified must be legal in the strictest
sense of the word. The transferee must be seized of a legal title. Consequently, protocol or process will
demand that a Conveyancer investigates and ascertains that the title to be transferred or modified is
legal. ‘Conveyance’ describes the document used to effect the conveyancing, and ‘Conveyancer’
describes the qualified professional or specialist lawyer retained by the parties to a transaction to deal
with the paper work and finances. His role is to represent the buyer or seller or the mortgagor. Generally
a Conveyancers duties are wide and varied and are not limited to merely drafting the conveyance and
registering the same. The duties include:
-Advising clients on buying and selling process and effect of transferring an interest in land;
-Investigating title;
-Drafting the conveyance with sale details, offers, leases, mortgages, transfer ;

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-Liasing with mortgagees, lenders, estate agents, Advocates etc;
-Paying taxes eg Stamp duty, land rent,VAT, Rates etc;
-Keeping records of payments and finally preparing a completion statement;
-Perfecting the documentation including proper execution, completion and registration;

The process of transfer or modification of interest must be by way of a written document. This is a
statutory requirement as the transfer or modification is deemed only to be complete once registration has
been effected as demanded by the relevant statute. It is noteworthy that the transfer or modification can
be to oneself.

RELATIONSHIP BETWEEN CONVEYANCING AND OTHER BRANCHES OF LAW

Conveyancing Law and Land Law: it is right to say that conveyancing overlaps with land law. Land
law gives us the principles that define rights and interests in land and has been referred to as ‘Law at
Rest.’ Conveyancing on the other hand deals with procedure or the practical legal mechanisms by
which those rights and interests are transferred from one person to another. It is ‘Law in Motion.’

Conveyancing Law and the Law of Contract: interests in land give rise to contractual obligations e.g.
a lease, mortgage or charge.

Conveyancing Law and the Law of Equity: The law of equity is also relevant to Conveyancing Law
and Practice in so far as equitable rights and remedies are concerned. The remedies include specific
performance, injunctions, rectification and rescission. If one has made an error in an instrument and that
instrument has been registered, in order to rectify the error, rectification is needed to remedy the error. It
becomes necessary to have the instrument of rectification. Specific performance applies where there is a
seller who has entered in agreement with a person to sell land to one person and then goes and signs
another agreement with another purchaser for more money. If the first purchaser discovers, he can go to
court to seek an order for specific performance, asking the court to compel the seller to transfer the land
to the first purchaser under the agreement for sale.

Conveyancing Law and Succession Law: Some understanding of the law of succession is also
necessary in dealing with transactions involving personal representatives. The law operates to make it

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possible to transfer land (transmission) to the beneficiaries. Conveyancing tells us what documents we
need to draft in order to vest the interests of the deceased to the beneficiaries.

Conveyancing Law and Company Law: Knowledge of Company Law is equally important in dealing
with companies involved in conveyancing transactions.

SCOPE OF CONVEYANCING
The scope of conveyancing covers the various procedures for certain land transactions. It deals with
practical issues such as how one negotiates and concludes a lease, mortgage, charge, transfer or other
transaction and how the relationship between the parties to the transaction is determined.

Conveyancing therefore deals with the various stages of a transaction. These include:
 Preliminaries;
 Investigation of title e.g. searches and examination of documents of title;
 Documentation- this is the legal framing of documents. It is the art of drafting;
 Contractual stage – this stage involves negotiation of terms;
 Completion stage - this is the stage where documentation is complete and what remains is to
take the documents for registration. If it is a transfer for example the seller’s advocate should
now give all the documents signed to enable the buyer’s advocates to go and register the
documents, the buyer’s advocate should now pay the buyer’s purchase price.

Some of the important phrases to define some of the activities in the above procedures include:
execution, attestation, stamping and registration of documents.

Conveyancing also involves the construction or interpretation of documents. For example in a lease
keeping the premises in good state of repair may mean painting the house, replace locks and so on. This
is part of the covenant to repair. It is about construing the covenant to repair.

Conveyancing may also involve litigation, e.g. where a transaction fails and parties resort to the court
process for determination and enforcement of their rights.

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CONVEYANCING TERMINOLOGY
As in all professions, words and phrases are used that are meaningless to a lay person, particularly when
an abbreviation is used. The following is a list of the most commonly used terms and general
requirements in conveyancing.
ALLOTMENT : An allocation of land by the Commissioner of Lands to a person by way of a letter of
allocation.
ASSENT : Describes the document under the terms of which an executor or administrator vests title to a
property in a beneficiary under the will or on the intestacy of a deceased. Applicable
to properties registered under the GLA, LTA & RTA.
ASSIGN : The act of transferring leasehold title.
ASSIGNMENT : Describes the transferring leasehold title under GLA and LTA.
ATTESTATION : To witness the execution of a Conveyance.
CHARGEE : Holder of a Charge.
CHARGOR : Person creating a Charge in favour of a Chargee.
CHARGE : Species of security that confers no interest in land but gives property charged as security.
CONVEY : The act of transferring a freehold title.
CONVEYANCE : Describes the deed transferring a freehold title under GLA and LTA.
CONTROLLED TRANSACTION : A transaction falling under the Land Control Act.
DEED : A document executed under seal.
DEMISE : A noun to describe a lease and as a verb to describe the act of leasing
DISPOSITION : Transfer of interest in land.
FEE SIMPLE : A freehold interest.
HEREDITAMENT : A parcel of freehold land.
LEASE : Interest in land for a fixed term or period.
LESSOR : Person giving a lease.
LICENSE : Permission granted to occupy ones land personally
PARCEL : A separately identified plot of land either by reason of its
boundaries or it having a separate or distinct title.
MORTGAGEE : Holder of a Mortgage.
MORTGAGE : Disposition of interest in land as security for a debt.

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MORTGAGOR : Person creating a Mortgage in favour of the Lender.
DISCHARGE : Release of security under RLA/RTA
RECONVEYANCE : Release of freehold mortgage under LTA/GLA
REASSIGNMENT : Release of leasehold mortgage under LTA/GLA
VENDOR (SELLER) : Person selling or intending to sell or transfer land or lease.
PURCHASER (BUYER) : Person buying land or lease.

TITLE DOCUMENTS
Title Deeds - Title Document under the Government Lands Act (GLA)
Conveyance - Title Document under the GLA
Certificate of Ownership - Title Document under the Land Titles Act (LTA)
Grant - Title Document under the Registration of Titles Act (RTA)
Certificate of Title - Title Document under the RTA
Lease - Title Document under the RTA
Land Certificate - Title Document under the Registered Land Act (RLA)
Certificate of Lease - Title Document under the RLA
Title Deed - Title Document under the RLA
Certificate of Title – Title Document for freehold under the LRA of 2012
Certificate of Lease – Title Document for leasehold under the LRA of 2012

AMENDMENT AND CONSOLIDATION OF PREVIOUS LAWS ON REGISTRATION UNDER

THE LRA OF 2012
Section 109 of the Land Registration Act of 2012 repeals the laws set out in the schedule, which are:
The Indian Transfer of Property Act of 1882
The Government Lands Act, (Cap 280)
The Registration of Titles Act, (Cap 281)
The Land Titles Act, (Chapter 282)
The Registered Land Act, (Cap. 300)

AMENDMENT AND CONSOLIDATION OF OTHER PREVIOUS LAWS ON REGISTRATION

UNDER THE LAND ACT
Section 161 of the Land Act of 2012 repeals the laws set out in the Schedule, which are:

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- The Wayleaves Act (Cap. 292)
- The Land Acquisition Act (Cap. 295)

REGISTRARS
Registrar of Documents - RDA
Registrar of Titles - RTA
District Lands Registrar - RLA
Government Lands Registrar – GLA
The LRA introduces the concept of Land Registration Units at the County level

HISTORY OF CONVEYANCING IN KENYA

Conveyancing law in Kenya, like other branches of law has drawn its history mainly from English Law.
Until 1535 the English medium of transferring an interest in land was vide the primitive method of
surrendering to the Lord of Manor the subject parcel of land and his Lordship in turn granted the same to
the transferee’s nominee. The earliest and most important form of conveyance however was the
feoffment. This involved no formalities save in the form of a ceremony known as livery of seisin
(delivery of possession). The feoffment was an assurance note made by the feoffor (owner of land) that
he had given his right over an estate to the feofee. The assurance note was accompanied with a formal
public delivery of possession in the presence of witnesses mainly feudal lords. The law then also
recognized facts of leases, assignments, exchanges and partitions. [Note the enactments of 1535 Statute
of Uses and 1536 Statute of Enrolments, the 1677 Statute of Frauds which introduced the requirements
of writing, execution and attestation, the Real Property Act 1845, Land Transfer Act 1875, Vendors &
Purchasers Act 1874 and finally the most important of them all the 1925 Law of Property Act which like
the Registered Land Act Cap 300 Laws of Kenya was intended to simplify conveyancing. The 1925
statute established a formal register and also introduced state indemnity to those deprived of their land or
title .]

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The history of conveyancing in Kenya can be traced to the turn of the 19 Century. Like most laws, the
relevant statutes were also transplanted the last being the Registered Land Act in 1963 which is an even
imitation of the Law of Property Act 1925 (UK).

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The first relevant conveyancing statute enacted in Kenya was the 1901 Registration of Documents Act
(RDA). Section 4 of the Act requires/d that documents conferring property interest be registered within
the month of its making to ensure its availability in evidence. It is noteworthy that registration of a
transaction under the RDA guarantees no title but is merely evidence of the occurrence of a transaction.
Next was the Land Titles Act 1908 (LTA) which was intended to help deal with the haphazard
“deserted” parcels at the Coastal strip of the country. The LTA also guarantees no title but unlike the
RDA was not defunct vis-à-vis conveyancing until amendment by the LRA of 2012. Titles registered
under the LTA are not government grants. In 1915 the Government Lands Act (GLA) was enacted to
deal with conveyancing and land titles in the interior hinterland. It introduced a more systematic
approach to registration and provided for Deed Plans for all parcels of land to the registered. The title
under the GLA is usually the last Indenture of Conveyance (Freeholds) or Assignment (Leaseholds). In
1920 the Registration of Titles Act (RTA) was enacted. It was based on the Australian Torrens system as
to systematic certainty of title. It provides for registration of and guarantee of titles. It attempted to make
conveyancing simple by introducing statutory conveyancing form albeit not mandatory. The title
document under the RTA is either a Grant or Certificate of Title or a Lease.

The Registered Land Act (RLA) enacted in 1963 tried to ‘modernize’ conveyancing. It was intended not
only for a further and better provision for registration of title to land but also the simplification of
conveyancing and facilitation of a cheapened mode of transfer of interest in land. The said Act borrowed
heavily from the 1925 English Law of Property Act. Unlike the RTA, the RLA made the use of statutory
conveyancing forms mandatory (S.108) The title document under the RLA is a Title Deed/Land
Certificate (for absolute proprietorship) or Certificate of Lease (for leaseholds) or a Certificate of
Sectional Property if it is a property under the Sectional Properties Act . Both are issued at the request of
the registered proprietor and upon payment of the requisite fees. The form of the Register under the
RLA is found in the First Schedule of the said Act. For purposes of identification of the land parcel, the
RLA got rid of Deed Plans and in their stead introduced Registry Index Maps (RIMs) which was
presumably simpler and straight forward. The difference between a Registry Index Map and a Survey
Deed Plan - the survey deed plan shows only for a given piece of land and Registry Index Map shows
the entire district.

The RLA was intended to consolidate all land registrations under it. Note however that it is no
compulsory to convert land registered under the RTA, GLA or LTA to the RLA unless one intends to
bring the same under the Sectional Properties Act,1987.
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The LRA of 2012 repeals the ITPA, GLA, RTA, LTA and RLA as provided in Section 109 of the Act
and the annexed Schedule. The LRA employs language that is similar to the repealed Registered Land
Act in the context of a free hold interest, although such form of estate was referred to as absolute
proprietorship under the repealed RLA. Section 24 of LRA deals with the effect of registration of land
under the Act. It provides that ‘the registration of a person as the proprietor of land shall vest in that
person the absolute ownership of that land together with all rights and privileges’ that are incidental to
that land. It also has provisions relating to the registration of a leasehold interest, and states that ‘the
registration of a person as the proprietor of a lease shall vest in that person the leasehold interest
described in the lease, together with all implied and expressed rights and privileges belonging or
appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the
lease.’

Section 25 of the LRA defines the rights of a proprietor that on first registration or subsequently for
valuable consideration or by an order of court, shall not be liable to be defeated except as provided in the
Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging
thereto, free from all other interests and claims whatsoever, but subject to:
- the leases, charges, encumbrances, conditions and restrictions shown in the register;
- overriding rights and interests enumerated in Section 28 of the LRA that do not to require noting on the
register, unless the contrary is expressed in the register;
- A registered proprietor is also not exempted from any obligation to which the person is subject to as a
trustee. This provision reaffirms the fact that a registered proprietor may be registered as a trustee, in
addition to the noting of customary trusts as an overriding interest under Section 28 of the Act.

Under Section 26 of the LRA, a certificate of title (a concept of registration of titles system) is prima
facie evidence of proprietorship. However, there seems to be a drafting error in Section 26 as both the
phrases ‘conclusive evidence’ (the title to that Section of the LRA) and ‘prima facie evidence’
(substantive provisions of the Section) are used. Nevertheless, by looking at the overall objectives and
principles of the LRA, it seems what is meant is prima facie evidence. The certificate of title issued by
the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the
proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the
land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and

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conditions contained in the certificate, and the title of that proprietor shall not be subject to challenge,
except:
- on the ground of fraud or misrepresentation to which the person is proved to be a party;
- where the certificate of title has been acquired illegally, unprocedurally or through a corrupt
scheme.
Section 30 of the LRA introduces the concept of certificates of title and lease, and therefore replaces
other names that documents evidencing ownership to land had before the entry into force the Act in May
2012. Therefore, the registration system shifts to the registration of titles and the system of registration
of documents and deeds is done away with (the system of registration of titles and that of
documents/deeds to be examined briefly later).