Real estate—Kenya—Q&A guide [Archived, 2020 edition]
Real estate—Kenya—Q&A guide [Archived, 2020 edition]

The following Property practice note provides comprehensive and up to date legal information covering:

  • Real estate—Kenya—Q&A guide [Archived, 2020 edition]
  • 1. How would you explain your jurisdiction’s legal system to an investor?
  • 2. Does your jurisdiction have a system for registration or recording of ownership, leasehold and security interests in real estate? Must interests be registered or recorded?
  • 3. What are the legal requirements for registration or recording conveyances, leases and real estate security interests?
  • 4. What are the requirements for non-resident entities and individuals to own or lease real estate in your jurisdiction? What other factors should a foreign investor take into account in considering an investment in your jurisdiction?
  • 5. If a non-resident invests in a property in your jurisdiction, are there exchange control issues?
  • 6. What types of liability does an owner or tenant of, or a lender on, real estate face? Is there a standard of strict liability and can there be liability to subsequent owners and tenants including foreclosing lenders? What about tort liability?
  • 7. How can owners protect themselves from liability and what types of insurance can they obtain?
  • 8. How is the governing law of a transaction involving properties in two jurisdictions chosen? What are the conflict of laws rules in your jurisdiction? Are contractual choice of law provisions enforceable?
  • 9. Which courts or other tribunals have subject-matter jurisdiction over real estate disputes? Which parties must be joined to a claim before it can proceed? What is required for out-of-jurisdiction service? Must a party be qualified to do business in your jurisdiction to enforce remedies in your jurisdiction?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to real estate in Kenya published as part of the Lexology Getting the Deal Through series by Law Business Research (published: November 2020).

Authors: MMAN Advocates—Nyawira Kirubi

1. How would you explain your jurisdiction’s legal system to an investor?

Kenya’s legal system is largely based on English common law and comprises private and public law. The primary sources of law in Kenya are the Constitution 2010 (the supreme law binding on all persons and state organs), statutes and case law. The laws relating to land are codified and have a national application.

In determining matters, the courts of Kenya are guided by the Constitution, statutes and the doctrines of equity, the statutes of general application in force in the United Kingdom on 12 August 1897 and case law.

Injunctions, temporary or permanent, can be granted in court once a claim preventing an action is lodged in court.

The Law of Contract Act (Cap 23) provides for both oral and written contracts. Contracts relating to a disposition of an interest in land, however, must be in writing, and oral contracts are not admissible.

The laws regulating real estate in Kenya have a national application, but the zoning laws vary from county to county.

2. Does your jurisdiction have a system for registration or recording of ownership, leasehold and security interests in real estate? Must interests

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