Frequently asked questions

a) Freehold: It is the greatest interest a person can have on land as it gives the holder absolute ownership of the land for life.

This means descendants can succeed the owner for as long as the family lineage exists. A freehold title deed generally has no restrictions as to the use or occupation. However, there are conditional freeholds, which restrict the use of the land, for instance, for agricultural purposes or ranching only.

A freehold interest is also known as fee sample or absolute proprietorship.

b) Leasehold: This is the interest in land for a specific period subject to payment of a fee or rent to the grantor. Payment of rates is made to the respective county governments for services rendered.

Leases are granted by the Government for public land, local authority for trust land and individuals with freeholds.

The maximum term of government leases is 99 years.

A leaseholder can also apply for a renewal or extension of the lease more particularly if he or she wants to re-develop the property and the lease period is
about to expire or the remaining period is not enough to recoup the investments.

This is a signed plan by the Director of Surveys showing the precise particulars of a surveyed piece of land.

It shows the details such as the shape of the plot, the distances and bearings all-round the plot, scale of plotting, Deed plan number, land reference number, size of the plot in hectares, signature of the Director of Surveys, the date of authentication by the Director of Surveys and above all, it shows if the plot is a New Grant or an extension of lease.

This in practice is under the provisions of Registration of Titles Act (RTA).

The Deed Plan once duly prepared is attached to a certificate defining the current owner and any endorsements by the relevant Registrar in the event the property has changed hands or there are encumbrances therein whatsoever relating to the plot.

The word Caveat means warning or proviso (something said as a warning, caution, or qualification).

The lodging of a caveat over a property is a way telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority.

A Caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.

Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registable instrument, e.g. a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his interest.

Entry of a transaction, with respect to such land,
may not then be made unless the cautioner has received notice.

Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.

There are four different types of Kenyan registered companies:

  1. Private company limited by shares (Ltd) – The members’ liability is limited to the amount unpaid on shares they hold
  2. Private company limited by guarantee – the members’ liability is limited to the amount they have agreed to contribute to the company’s assets if it is wound up
  3. Private unlimited company – No limit to the members’ liability
  4. Public company limited by shares (Plc) – the company’s shares are offered for sale to the general public through a stock exchange and the members’ liability is limited to the amount unpaid on shares held by them.

Other business entities include;

  • Sole Proprietorship.
  • Partnerships – overseas investors can establish a partnership in Kenya. The partners have ‘joint and several’ liability for all debts.
  • Limited Partnerships – consists of one or more persons called ‘general partners’ who are liable for all debts and one or more persons called ‘limited partners’ who contribute a sum or sums of money as capital, or property valued at a stated amount. Limited Partners are not liable for debts/obligations beyond the amount contributed.
  • Limited Liability Partnership – this structure provides the benefit of limited liability but allows its members the flexibility of organizing its internal structure and tax arrangements as a traditional partnership.

This is the acquisition of land by the government for a public purpose but subject to fair and prompt compensation.

Publication of the intention to acquire is done through the Kenya gazette and County gazette. A notice is also given to the Land Registrar and every person with an interest in the land.

Land compulsorily acquired by the government thus cannot be used for private development and non-payment of compensation may lead to cancellation of the
acquisition. In case the government is unable to use the land for the intended purpose it should give priority to the original owners to acquire the land back on restitution of the full amount paid as compensation. Public purpose (or public interest) is limited to matters of regulating rights and land use in:-

• The interest of defence
• Public safety
• Public order
• Public morality
• Public health
• Urban planning, or the development or utilization

The Law of Succession is the law regulating the inheritance of property.

The Law of Succession Act applies universally to all Kenyans.

This is basically the substantive law dealing with matters succession in Kenya. It’s important to note that this law has to be quoted first before other laws that might equally be affecting matters succession.

As an owner of a beneficial interest in the land property, you can be part of making decisions involving the property, including how it is used and
developed, and get a share of any income that is distributed from the property.

• The deceased can exercise control over property
• It can help avoid courts from determining who is entitled to property
• Enable appointing property representatives of choice
• Avoiding disputes over property
• Persons outside family can have property
• The deceased can decide on how he/she can be disposed off.

It means:
• The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death.
• The deceased’s parent, step parents, grand-parents, grandchildren, step- children, children whom the deceased had taken into his family as his own,
• Brother and sisters, and half -brothers and half-sisters, who were being maintained by the deceased before his death.
• Where the deceased is a woman, her husband if he was being maintained by her before her death.

Section 40 of the Constitution of Kenya stipulates that every person has right to own land of any description in any part of Kenya.

Matrimonial Property Act of (2013) the matrimonial property act provides that married women has the same rights as married man to acquire, administer, hold,
control, use and dispose of property whether movable or immovable; enter into contract and sue and be sued in her own name .

The husband or wife may acquire beneficial interests that are equal to the amount of contribution made by the spouse.

Any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it.

If the property becomes matrimonial then it shall be equally shared by the spouses and unless they otherwise agreed .

The law states that parties to marriage shall equally share the liability incurred during the subsistence of the marriage for the benefit of the marriage or reasonable and justifiable expenses incurred for the benefit of marriage.

The spouse will not only share benefit but liabilities on the matrimonial property.

• Women have a right to acquire and own land whether individually or as a group.
• Daughters have the right to inherit their parents’ land and property.
• Women have a right to be elected and or appointed into land governance institutions.
• Married women have the right to joint ownership of land and property acquired during marriage.
• Married women have the right to transact on land in consultation with their husbands and vice versa.
• Widows have the right to inherit their deceased husband’s land and property.

A ‘child” means an individual who has not attained the age of eighteen years in Kenya.

Generally, children cannot own land or property in their own right as
children.

However, land and property can be held on trust for their benefit and use.