Real Estate Literacy as explained by Denver Real Estate – Property for Sale in Kenya

WHO CAN OWN LAND IN KENYA?

Subject to Article 65, Chapter 40 of the Kenyan Constitution states: “every person has the right to either individually, or in association with others acquire and own property of any description and in any part of Kenya.”

Non-citizens can own property in Kenya and enjoy all legal rights and protections that Kenyan citizens enjoy, however they are subject to restrictions with regard to the type of tenure they can hold in land to the leasehold of 99 years.

There are two types of land tenure system in Kenya, that is the freehold and leasehold:

1. 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 example, for agricultural purposes, or ranching only. A freehold interest is also known as free sample, or absolute proprietorship.
2. 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.

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SUCCESSION

Inheritance, or succession may be defined as the “the transfer of title to property under the law of descent and distribution” (Black’s Law Dictionary, 5th Edition). Succession would exclude those who take by deed, grant, or any form of purchase contract.

WHAT IS THE LAW OF SUCCESSION AND HOW DOES IT APPLY?

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.

HOW IS THE PROPERTY OF A DECEASED PERSON HANDLED?

On one hand, immovable property in Kenya of a deceased person whatever the residence of that person at the time of his/her death will be regulated by the Kenyan law on succession and on the other hand, movable property of a deceased person is regulated by the law of the country of the residence of that person at the time of his/her death.

WHAT IS TESTATE SUCCESSION?

Testate succession is where the deceased leaves a written or oral will. It is important to note that the deceased must have had the capacity (sound mind and off age) to make the will at the time of making the will. In other words, the deceased must have had the knowledge and approved the contents of the will. 

WHAT IS INTESTATE SUCCESSION?

Intestate succession is where there is no will left by the deceased. It applies where the deceased has left ONE surviving spouse and a child or children. In this regard, the surviving spouse shall be entitled to:-

• The personal and household effects of the deceased and,
• The intestate property but cannot sell this property. This is because the spouse is only holding it on behalf of the children. If the spouse remarries, he/she loses her entitlement to the intestate property.

Where the deceased has left a surviving child or children but no spouse, the intestate property will be transferred to the surviving child or divided equally among the surviving children.

Where the deceased left no surviving spouse or children, the intestate shall be transferred in this order of priority:

• Father; or if dead,
• Mother; or if dead
• Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
• Half -brothers and half-sisters, and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
• Distant relatives up to the sixth degree in equal shares.

If the deceased is not survived by any of the above then the intestate property estate shall be taken up by the state.

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WHY BOTHER WITH 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 WILL

WHAT IS A WILL?

A will is a mere intention of the maker. It can be amended by the same person during his/her life time.

• A person, may through his/her will appoint an executor. This is a person named in the will who has the legal responsibility to take care of a deceased person’s remaining financial obligations e.g. property disposal, paying bills, taxes etc.
• It’s a mere intention of the maker – can be amended but only by the maker during their lifetime.
• Can deal with property acquired after death of maker (ambulatory)

WHO CAN MAKE A WILL?

Any person can write a will at any time as long as they are of sound mind, and are 18 years old and above.

WHEN DOES THE WILL TAKE PLACE?

The will being an intention of the maker, it can only take effect after the death of the maker. (testator / testatrix)

WHAT ARE THE BENEFITS OF MAKING A WILL?

• 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.

WHAT ARE INVALID WILLS?

• When the maker of a will lacks knowledge and approval of a will, the will is as if it was not made at all. This is because of
• Fraud / forgery
• Coercion
• Mistake / duress / undue influence

ORAL WILL

It is only valid if;

• Made before 2 or more competent witnesses;
• The maker dies within 3 months of making it;
• An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will;
• If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness.

WRITTEN WILL

A written will must have the following characteristics:

• It must be signed by the maker.
• In case its signed by somebody other than the maker, then this should be done in the presence of the maker and under his/her directions.
• It must me witnessed by two or more witnesses and these witnesses MUST NOT be beneficiaries in the will otherwise there shall be need of an additional two witnesses.
• If the maker of the will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will.
• An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will.
• If the dependent or dependents feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court.
• The Court may order a specific share of the property be given to the dependent (s) or periodical payments or lump sum payment.

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WHAT IS A DEED PLAN?

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.