Briefly explain the roles and obligations of Wetu and partner’s advocates in the transaction

to your clients.

In conveyancing, the vendor’s advocates should obtain the full names of the parties involved in
the conveyance, the full particulars and the price of the property that is subject to the
conveyance, the deposit required, the details of any encumbrances, whether the property is
vacant and the expected date of completion. The vendor’s advocate is also obligated to prepare
the sales agreement, to obtain the original title document from vendor, to approve the transfer or
conveyance, to receive and account for the proceeds of sale to the vendor, to obtain rates, rent
clearances, to discharge of charge or reconveyance as well as to obtain consent where it’s
required.

Obligation to check for conflict of interest.

Conflict of interest arises where an advocate acts for both parties in a transaction.1 A conflict of
interest may be described in three ways; as a conflict of duties, conflict between interests and
conflict between interests and duties.2 It was observed in the matter of Serve in Love Africa(Sila)
V David Kipsang Kipyego and others that an advocate is considered to be acting in conflict of
interest when serving or attempting to serve two or more interests which cannot be served
consistently or where an advocate attempts to honour two or more duties that cannot be honoured
compatibly and therefore fails to observe the fiduciary duties owed to clients.3

Obligation to obtain title deeds from seller and other documents necessary for the sale.

The parties to conveyancing sign the conveyance and the vendor, represented by his advocate is
subsequently mandated to deliver the completion documents. The Condition for Sales requires
the vendor’s advocate to deliver the purchaser either the title deeds or copies of the title deeds, or
any abstracts of the title to the property within 14 days since the date of the contract.4 The
vendor’s advocate is also required to produce the purchaser copies of any title deeds or deed
plans that are necessary to complete the vendor’s title to the property after a receipt of a Notice
in writing from the purchaser.5

1
Serve in Love Africa(Sila) Trust V David Kipsang Kipyego case
2
Ibid
3
Ibid
4
Section 9(1), Law Society of Kenya Condition for Sale
5
Section 9(3) Law Society of Kenya Condition for Sale
Upon registration of conveyance, the vendor’s advocate has an obligation to give title deeds to
the property and conveyance to the purchaser or his purchaser’s mortgagee.6

The vendor’s advocate in circumstances where the purchaser has issued him with a written notice
of any objections or requisitions on the title or evidence of title, the objections as to the
description of property, the objections as to abstract or matters not specifically provided for, is
mandated to answer all objections and requisitions within 14 days after receipt, and if not
answered, they are deemed to be correct.7

Obligation to host and arrange for completion meetings

The advocate of the vendor is tasked to host the completion meetings unless it is otherwise
agreed in writing between the parties or their advocates. The vendor may at least 5 days prior to
the completion dates also require the completion meetings be held at the office of the vendor’s
mortgagee or his advocate.8

Obligation to receive the proceeds of the sale from the purchaser

The purchaser upon or after entering into the contract should pay the vendor’s advocate 10% of
the purchase money as deposit. In an event that the cheque used for payment is dishonoured, the
vendor’s advocate upon presentation prior to the completion date has a mandate to notice the
purchaser in writing his intent to treat the dishonour as a repudiation of the contract by the
purchaser.9 The Conditions for Sale requires that upon completion, the purchaser should pay the
purchase money to the vendor’s advocate who is to consequently hold the same as a stakeholder
till the registration of the conveyance. In situations where the registration of the conveyance is
not effected within 30 days of completion, the vendor, through his advocate, may without
prejudice and in addition to other rights and remedies give notice to purchaser requiring him to
effect the registration of the conveyance within a period specified in the notice.10

Where the vendor has agreed that the whole or part of purchase money shall not be paid upon
completion but be secured by an undertaking from the purchaser’s advocate, the undertaking, if

6
Section 4(2)(e), Law Society of Kenya Condition for Sale
7
Section 10, Law Society of Kenya Conditions for Sale
8
Section 4(1), Law Society of Kenya Conditions for Sale
9
Section 3, Law Society of Kenya Conditions for Sale
10
Section 4(2)(a), Law Society of Kenya Conditions for Sale
in form and substance is satisfactory to the vendor, is to be delivered to the vendor’s advocate
upon completion together with unsecured balance of purchase money.11

Obligation to produce duly executed conveyance, discharges, encumbrances, consent and a

clearance certificate

The vendor’s advocate is mandated to deliver or produce for inspection to the purchaser’s
advocate against payment or delivery of payment, and if required by the purchaser, delivery to
the purchaser’s advocate’s mortgagee the duly executed conveyance and all necessary
discharges, encumbrances, consent and clearance certificate together with a duly completed
Stamp Duty Valuation Form.12

In situations where completion is delayed by an act of the vendor, the vendor, through his
advocate may offer to allow the purchaser possession before completion.13 Also, the vendor,
through his advocate is mandated to allow the purchaser upon completion, such out of pocket
expenses or reasonable proportions, considering the extent of the delay and the nature of the
expense claimed or any other circumstances affecting the claim.14

Obligations under leaseholds and underleases

In leaseholds where the interest sold is created by underlease, the vendor is obligated to supply a
copy of a certified copy of the immediately superior lease to the purchaser at the purchaser’s
expense.15 Where a lease or a sublease is subject to restriction against assignment without
consent immediately after signing the contract, the vendor is mandated to apply to obtain
necessary consent at their own cost.16

The Conditions for Sale requires the vendor’s advocate to point out to the purchaser, at the
purchaser’s request, the survey beacons delimiting the property.17 Incase any beacon is misplaced
or found missing upon inspection shall be replaced at the expense of the vendor.18 Before the
contract, the vendor through his advocate must disclose to the purchaser the existence of all
11
Section 4(2)(b) , Law Society of Kenya Conditions for Sale
12
Section 4(2)(d), Law Society of Kenya Conditions for Sale
13
Section 8, Law Society of Kenya Conditions for Sale
14
Section 8(e), Law Society of Kenya Conditions for sale
15
Section 12(3), Law Society of Kenya Conditions for Sale
16
Section 12(5), Law Society of Kenya Conditions for Sale
17
Section 14(1), Law Society of Kenya Condition for Sale
18
Section 12(1), Law Society of Kenya Conditions for Sale
rights, privileges, latents, easements or other liabilities which are known to him that are likely to
affect the property and all present and contingent liabilities in respect of roads and sewerage
charges in respect of which liability may be borne by the purchaser.19

The vendor’s advocate is responsible for obtaining all consent, and the purchaser joins in making
any applications where necessary. The vendor’s advocate is responsible for obtaining the
discharge of any encumbrances to which the property is not sold subject.20

Where the sale requires the subdivision of any property, immediately on signing of the contract,
the vendor’s advocate as a representative of the vendor shall apply for approval of subdivision,21
cause a survey to be carried out and deed plans to be issued by the director of surveys.22 Where
title is registered under Registered Land Act, the Vendor’s advocate has a mandate to cause
mutilation or subdivision forms to be prepared and a separate register for the property to be
opened in accordance with section 25(2) of the Registered Land Act.23

Obligations with regards to local and public authorities

Before the date of the contract, where the vendor had any notice of any requirements, proposals
or requests made by or on behalf of any local or public authorities, compliance would involve
spending money on property, the vendor through the vendor’s advocate is obligated to indemnify
the purchaser against liability. If liability is outstanding upon completion, the vendor through his
advocate shall covenant for indemnity in conveyance.24

In situations where notice of such requirements, proposals or requests are given to the vendor
after the date of the contract, the vendor through his advocate shall give notice in writing to the
purchaser.25

Suppose a property has been affected by any laws or proceedings taken under the laws limiting
or controlling the rent or other terms of any tenancy of property, the vendor’s advocate, within
14 days of being given such notice in writing by the purchaser, shall give the purchaser all

19
Section 15, Law Society of Kenya Conditions for Sale
20
Section 16(1) , Law Society of Kenya Conditions for Sale
21
Section 17(1), Law Society of Kenya Conditions for Sale
22
Section 17(2), Law Society of Kenya Conditions for Sale
23
Section 17(3), Law Society of Kenya Conditions for Sale
24
Section 19(1), Law Society of Kenya Conditions for Sale
25
Section 19(2), Law Society of Kenya Conditions for Sale
information the vendor has concerning the recoverable rent of property and concerning
compliance with any obligations imposed on the such laws or by the proceedings taken and
affecting the property.26 The vendor through his advocate is mandated to indemnify the purchaser
against claims arising out of any tenancy in respect to the period after the completion date.27

Under the request of the purchaser, the vendor through the vendor’s advocate shall supply the
vendor with all the information in the vendor’s possession and any other information required for
the purpose of claiming any tax relief allowance or for ascertaining the purchaser’s liability to
tax in respect of money spent on the property by the vendor, 28the government or other grant
received by the vendor in title,29 any tax allowance made to or balancing the charge raised
against the vendor 30and the previous ownership of property.31

Obligation to ensure the property remains in good condition

The vendor’s advocate has a duty to advise the vendor of his continuing duty of care towards the
property and should take reasonable care to ensure the property remains in the state in which it
was at the date of the contract.32 The Law Society Conditions for Sale gives the vendor a duty to
keep the property insured against damage or destruction until completion or until possession is
given to the purchaser before completion.33

The obligation to execute proper conveyance, to deliver rates clearance certificate and land rent
certificate, the obligation to peruse and approve of conveyance and the obligation to engross
conveyance

The vendor through his advocate, within 14 days is responsible for perusal and approval of
conveyance prepared by the purchaser.34 The vendor’s advocate has a responsibility for
engrossing conveyance for execution.35 In situations where the sale is to be carried out by a lease
or underlease the vendor’s advocate may furnish a form of lease or underlease from which the

26
Section 21(1), Law Society of Kenya Conditions for Sale
27
Section 21(2), Law Society of Kenya Conditions for Sale
28
Section 21(1), Law Society of Kenya Conditions for Sale
29
Section 22(2), Law Society of Kenya Conditions for Sale
30
Section 22(3), Law Society of Kenya Conditions for Sale
31
Section 22(4), Law Society of Kenya Conditions for sale
32

33
Section 23(1), Law Society of Kenya Conditions for Sale
34
Section 24(1) Law Society of Kenya Conditions for Sale
35
Section 24(2), Law Society of Kenya Conditions for Sale
draft conveyance can be prepared.36 The vendor’s advocate is expected to execute proper
conveyance of the property to the purchaser upon payment of purchase money as well as a
clearance certificate, and where applicable a land rent certificate in respect of the property valid
for a period expiring not earlier than the completion date.37

The vendor through his advocate is required to convey the property to the purchaser at any time
upon the purchaser executing a legal mortgage in favour of the vendor securing payment of the
balance of the purchase money or interest.38

Where a vendor is unable to comply with requisition of the purchaser on reasonable grounds of
difficulty, delay or unreasonable expense, the vendor through his advocate may give the
purchaser a written notice referring to this condition, specifying his grounds and requesting
withdrawal of the objection within a period not less than 7 days.39 The vendor’s advocate by
notice to writing to purchaser may rescind the contract if the purchaser fails to withdraw the
objection.40 Upon rescission, the vendor through his advocate is to repay purchaser his deposit
and any payments of purchase price.41

36
Section 24(4), Law Society of Kenya Conditions for Sale
37
Section 24 (5), Law Society of Kenya Conditions for Sale
38
Section 26(4), Law Society of Kenya Conditions for Sale
39
Section 11(1), Law Society of Kenya Conditions for Sale
40
Section 11(2), Law Society of Kenya Conditions for Sale
41
Section 11(3), Law Society of Kenya Conditions for Sale