KENYA SCHOOL OF LAW

ATP 107: CONVEYANCING

DATE OF SUBMISSION: 20TH JULY, 2018

COURSE INSTRUCTOR: MS. HELENE NAMISI

PRESENTED BY: FIRM C16

QUESTION: PREPARE THE FOLLOWING DOCUMENTS

1. A MEMORANDUM

2. A LICENSE AGREEMENT FOR THE PARKING LOT

3. AN AGREEMENT FOR SALE OF A PENTHOUSE

 Table of Contents
Question 1: Memorandum .............................................................................................................. 0
Question 2: Licence Agreement for the Parking Lot ...................................................................... 4
Question 3: Agreement for Sale of a Penthouse ........................................................................... 10
 Question 1: Memorandum

SMART & SHARP ASSOCICATES

______________________________________________________________________________
MUTULA BUILDING, 1ST FLOOR,
FIRM LANE OFF LANGATA ROAD,
P.O. BOX 1234- 00200,
NAIROBI.
TO: MANAGING DIRECTOR OF EMERALD CONSTRUCTION LIMITED

FROM: SMART & SHARP ASSOCIATES

SUBJECT: CONSTRUCTION OF AN OFFICE COMPLEX IN UPPER HILL; NAIROBI.

DATE: 20TH JULY 2018

We refer to the above captioned matter and our initial brief by Emerald Construction Company
Limited. Emerald construction intention to construct an ultra-modern state of the art office
complex, raises the following legal issues: -

1. Investigation of title;
2. Amalgamation of the adjoining parcels of land;
3. Change of user from residential to mixed commercial and residential use;
4. Necessary consents, approvals and permits;

1. Investigation of Title
Emerald Construction should acquire title to the second parcel of land as they have presented us
with only one title. An official search would be conducted to ensure the company has acquired a
‘clean title’ Further, the titles would be used confirm that all rates and rents owed to Nairobi
County Government in respect to both parcels of land have been cleared and obtain a receipt to
that effect.

2. Amalgamation of Land
Amalgamation involves the combination of two or more adjoining parcels of land that are held
under separate titles. Emerald construction limited have acquired the two adjoining parcels of land
and would like to amalgamate them for ease of construction of the office complex. Amalgamation
should be conducted first to ensure that the approvals and consents sought by Emerald apply to the
entire land intended for the development.

Amalgamation is provided for under Section 22 of the Land Registration Act, 2012 as read
together with Regulation 43 of the Land Registration (General) Regulations, 2017.
Amalgamation is done through an application in the prescribed form (Form LRA 26). The
application is to be supported by the following documents;

a. A copy of an approval of development application from the relevant County Government

for the combination.
b. A copy of the registered Mutation Form (Form LRA 27) which is to be completed in
triplicate. The mutation form is forwarded to the survey department in the county office
for purposes of amending the Registry Index Map.
c. A cadastral map for the combination;
d. A cadastral plan for each resultant parcel (for parcels with fixed boundaries);
e. The certificate of lease of the parcels being combined
f. Any other necessary consent, clearance, permits required by law;
The documents stated above after approval will be forwarded to the land registrar who shall
thereafter effect registration and issue a new single tittle document.
3. Change of User
A change of user must be obtained before construction begins. This is because the development
changes the land use, from purely residential to mixed residential and commercial use. The process
of change of user is initiated by;
a. Making an application in Form PPA1 (in triplicate) duly signed by a registered physical
planner;
b. An advertisement by the developer, in at least two local daily newspapers of nationwide
circulation, inviting comments and objections from the public within 14 days;
c. A planning brief prepared by a registered physical planner is then submitted to the county
government physical planning department together with payment.
d. The application is reviewed and if the change being sought does not interfere with or is not in
contravention to any laws or planning principles an approval is issued through the Form PPA2.
e. The Form PPA2 is then circulated to the Director of survey and the Director of Physical
planning.
f. Required reports and plans are obtained and forwarded to the National land Commission.
These include; a site report by a licensed surveyor, valuer’s report for land rent enhancement,
and new deed plan obtained from a re-survey of the land.
g. The land title is surrendered together with the deed plan and a new title prepared indicating the
new use and is submitted for registration to the Ministry of Lands.

4. Consents, Approvals and Permits

In carrying out any process prior to construction or during construction there are various consents,
approvals and permits approvals that may be needed by the company. They include:

a. Consents and clearances

i. National Land Commission Consent- Emerald Construction owns a leasehold interest
in the land and thus must seek the head lessor’s consent in the transfer of conveyance
of their interest;
ii. Rents and rates clearance certificates.
b. Approvals
These are necessary to obtain the Building permits. Some of these include;
i. Environmental Impact Assessment License issued by National Environment
Management Authority following approval of the construction project;
ii. Approved Survey plans, architectural drawings, and structural drawings from the
county survey department;
iii. Certificate of Compliance from the National Construction Authority (NCA); This
certificate is obtained from NCA’s website upon submission duly filed NCA project
registration form. The form is accompanied by the following mandatory documents:
The names and registration numbers of contractors, sub-contractors, and the project
consultants such as surveyors and engineers, the approved structural drawings, the
developer’s Kenya Revenue Authority PIN, a summary of the bill of quantities, a duly
signed contract/tender form with the developer and the contractor, approval by NEMA
 and the PPA2 Form. The Certificate of Compliance is issued within 30days of payment
of requisite fees.
c. Permits
i. Demolition permits from the county government should be obtained before bringing
down the bungalows on the property.
ii. Borehole drilling permit should be obtained; issued by the Water Resource
Management Authority on application. The following are attached to the application:
a geological /Hydrological survey done by a registered geologist, an Environmental
Impact Assessment, and an approval from NEMA. It is prudent to obtain an approval
from the Nairobi Water and Sewerage Company and the Nairobi city county to ensure
that there are no objections on their part.
iii. Building permit; obtained from the county government upon submission of all the
above-mentioned clearances, approval, and permits together with a survey plan.

In conclusion, the above highlighted issues need to be dispensed with before Emerald Construction
can commence their development for their project to proceed without a hitch.

SMART & SHARP ADVOCATES

__________________________
JENIFER WANDOLO, Advocate
Question 2: Licence Agreement for the Parking Lot

LICENCE AGREEMENT
BETWEEN
EMERALD CONSTRUCTION COMPANY LIMITED

(“THE LICENSOR”)

AND

______________________________________

(“THE LICENSEE”)

Drawn by: -

Smart & Sharp Associates,

Mutula Building, 1st Floor,
Firm Lane off Langata Road,
P.O. Box 1234- 00200,
Nairobi.
 THIS AGREEMENT made on this _________ day of ____________________ 20___

BETWEEN EMERALD CONSTRUCTION LIMITED a limited liability company

incorporated in the Republic of Kenya having its registered office in Nairobi in the said Republic
and of Post Office Box Number 45181- 00100, Nairobi in the said Republic which includes its
Successors and assignees (hereinafter referred to as called “the Licensor”) of the one part; and
__________________________________________________ having its registered office situate
at _______________________ and of P.O. BOX Number ___________________________in
the Republic of Kenya which includes its personal representatives its successors, assignees and
personal Representatives (hereinafter referred to as “the Licensee”) of the other part.

1.0. PARTICULARS

In this Agreement the following expressions shall have the following meanings unless the context
requires otherwise;

1.1. “The Access Ways” shall mean the paths entrances, corridors and staircases of the
Premises; the use of which is necessary for obtaining access to and exit from the rented
premises and Designated Parking Space. Provided that, the Licensor may from time to time
in its absolute discretion designate to the Licensee.

1.2. “The Authorised Car” shall mean any motor vehicle(s) belonging to the Licensee, its
employee(s), Agent(s), Servant(s) or visitor(s) which has been authorised by Licensor or
its agents to use the Designated parking space.

1.3. “The Designated Parking” shall mean the space{s} shown {for the purpose of identification
only} and marked No. _____ within the Parking Area as the licensor may from time to
time in its absolute discretion designate and give to the Licensee a minimum of Twenty-
Four (24) hours’ notice thereof.

1.4. “The License Period” shall mean the period from the _______ day of ____________ 2018
until _______ day of ____________ 2018 or the date on which the Licensee's rights under
Clause 2.0. are determined in accordance with Clause 7.0.

1.5. “The Premises” shall mean the Land and buildings shown {for the purpose of identification
only} edged red on the plan annexed (Annexed herewith and marked “LBP”)
2.0. LICENCE

Subject to Clauses 4.0. and 5.0. the Licensor gives the Licensee the right (in common with the
Licensor and all others authorised by the Licensor so far as is consistent with the rights given) to
use for the License Period;

2.1. For the purpose of parking one (1) private motor car, the Designated Parking Space;

2.2. For the purposes of access to and exit from the rented premises, Designated Parking
Space and the Access Ways;

3.0. LICENSOR’S UNDERTAKINGS

The Licensor agrees with the Licensee that the Licensee fulfilling all his obligations under this
agreement, shall be entitled to peaceably use and enjoy the Designated parking space without any
interruption from or by the Licensor or any person rightfully claiming under it

LICENSEE'S UNDERTAKINGS

4.0. PAYMENT

4.1. The Licensee agrees and undertakes to pay to the Licensor:

4.1.1. The License fee of Kenya Shillings Ten Thousand and Five Hundred
Only (Kshs. 10, 500.00) per month which fee is inclusive of Value Added
Tax (VAT INCLUSIVE);

4.1.2. The License fee shall be payable on or before the 5th day of each month;

4.1.3. To pay a deposit of Kenya Shillings Thirty-One Thousand Five Hundred

Only (KSHs. 31,500.00) which amount shall be repayable to the Licensee
(less such amount as, shall be due to the Licensor in respect of any non-
performance or non-observance by the Licensee) within Fourteen (14)
days of the determination of the License Period or such longer period as
may be necessary to ascertain such amount due to the Licensor.
5.0. RULES AND REGULATIONS

5.1. The licensee covenants and agrees with the licensor as follows: -

5.1.1. The licensee shall adhere to all guidelines placed by the management;
(Annexed herewith and marked “LAA-1”

5.1.2. Not to park the Authorised Car in any place other than the Designated Bay
and in particular, not to park the Authorised Car in any of the parking areas
specially designated for visitors only PROVIDED HOWEVER that the
Licensor may if it shall in its discretion deem necessary to direct the
Licensee to park the Authorised Car elsewhere in any other bay;

5.1.3. Not to use the Designated Parking Space or Access Ways in such a way as
to cause any obstruction, nuisance, damage, disturbance, annoyance,
inconvenience, or interference to the Premises or adjoining or neighbouring
property or to the owners, occupiers, or users of such adjoining or
neighbouring property;

6.0. RESTRICTIONS

6.1. Entry to the Parking Area will only be permitted by the Licensor’s official car
pass/sticker being displayed on the right-hand side of windscreen of the Authorised
Car.

6.2. Loss of the said car pass/sticker must be reported to the Licensor as soon as possible
who will cancel the appropriate serial number. The cost of replacing the car
pass/sticker will be Kenya Shillings Twenty Only (KSHs.20.00) payable by the
Licensee to the Licensor.

6.3. This License is not in any respect whatsoever a lease or a tenancy; and does not
grant, create, or otherwise confer upon the Licensee any legal or equitable estate or
interest whatsoever or any exclusive right to possession use on occupation in or to
any Parking space or to the use of the Parking space or to the use of the Parking
area or any part thereof;
7.0. INDEMNITY

The licensee agrees and covenants with the Licensor; to indemnify the Licensor and keep the
Licensor indemnified against all losses, claims, demands, actions, proceedings, damages, costs, or
expenses, and/or other liability arising in any way from any breach of any of the Licensee's
undertakings contained in this Clause or the exercise or purported exercise of any of the rights
given in Clause 2.

8.0. TERMINATION

The licensor reserves the right to terminate this agreement without prejudice to the Licensor's
rights in respect of any breach of its undertakings contained in this Agreement;

Provided that, any party to this agreement may terminate upon issuing a notice to the other party
of not less than Twenty-Eight (28) days;

9.0. ASSIGNMENT

The benefits and obligations of this license is personal to the Licensee and not assignable and can
only be exercised and performed by the licensee {and (his) employees {and customers}};

10.0. NOTICES

All notices given by either party pursuant to the provisions of this Agreement shall be in writing
and shall be sufficiently served if delivered by hand or sent by recorded delivery to the other party
at its (registered office or last known address).

PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that the parking
of the Authorised Car shall be done entirely at the risk of the Licensee and the Licensor shall be in
no way responsible for any loss or damage or for the theft of the Authorised Car or anything left
in the Authorised Car whether or not such loss damage theft or injury was caused by or contributed
to whether directly or indirectly by or through the negligence or default of the Licensor or of any
of its servants agents employees or licensees of the Licensor or by any other person whatsoever
either lawfully or unlawfully upon the premises.

IN WITNESS WHEREOF the Licensor and the Licensee have executed this license agreement
the day and year first hereinabove written.
SEALED with the COMMON SEAL of )

EMERALD CONSTRUCTION LIMITED

In the presence of

Director _______________________________

Director/Secretary ________________________________

SIGNED by the said_________________

In the presence of

Advocate
 Question 3: Agreement for Sale of a Penthouse

Dated This .........Day Of ................... 20......

AGREEMENT FOR SALE

-BETWEEN-
EMERALD CONSTRUCTION LTD
(The “Vendor”)

-And-
GIANPERO MASCOLINI & ISABELLA RICOTTA.
(The “Purchasers”)
-Relating to the Sale Of-

APARTMENT NO. A1; ON THE 20TH (TWENTIETH) FLOOR OF A BUILDING

COMPLEX; THAT IS TO BE ERECTED ON PROPERTY NUMBER I. R. 49171,
NAIROBI

AND

ONE (1) SHARE IN EMERALD MANAGEMENT COMPANY LIMITED

Drawn by:

Smart & Sharp Associates,

Mutula Building, 1st Floor,
Firm Lane off Langata Road,
P.O. Box 1234- 00200,
Nairobi.
 AGREEMENT FOR SALE
THIS AGREEMENT is made on this ………………. day of …………………………… 2018.

-BETWEEN-

EMERALD CONSTRUCTION LTD a limited liability company incorporated within the

Republic of Kenya, Registration Number......................................... And of Post Office Box
Number 21045-0001, Nairobi, Kenya (Herein referred to as the “Vendor” of one part including
the respective personal representatives and nominees of the Vendor)
-AND-

GIANPERO MASCOLINI of ID number 32205251 and ISABELLA RICOTTA of ID

number 29047393 both of Post Office Box Number 65773-00502, Nairobi, Kenya (herein
referred to jointly, as the “Purchaser” of the other part including the respective personal
representatives, assignees and nominees of the purchaser).

WHEREAS:

The Vendor is registered as sole proprietor of ALL THAT piece of land AND EVERYTHING
THEREON particularly described parcel of land under the Reference Number I. R. 49171 located
at Upper Hill area of Nairobi, next to the Don Bosco Catholic Church.

The Vendor is willing to sell, and the Purchaser is willing to buy the property at a consideration of
Eleven Million, Two Hundred and Fifty Thousand, Kenyan Shillings (KES. 11,250,000.00)
free from all encumbrances.

The vendor is selling a leasehold interest to the purchasers, where the PURCHASE and SALE
shall mean, the buying of an Apartment A1 that is to be developed/erected on the leasehold
property of the vendor, together with ONE (1) share in Emerald Management Company.

NOW IT IS HEREBY AGREED as follows:

1.0. DEFINITIONS AND INTERPRETATIONS
The following words and expressions (save where the context requires otherwise) bear the
following meanings:
 i. “Completion Date” means any day, before or on the 30th day from the date the certificate
of occupation is issued to the vendor; or any other such date that the parties may agree to
in writing.

ii. “Completion Documents” means the deeds and other documents that are necessary for
the transfer of good title and for the purposes of this agreement are as set out in Condition
8.4.1. of the LSK Conditions of Sale, 2015.

iii. “Property” means Apartment no. A1, that is to be developed/erected on the leasehold
property of the vendor, together with ONE (1) share in Emerald Management Company.
more particularly described as parcel of land under the Reference Number I. R. 49171
located at Upper Hill area of Nairobi, next to the Don Bosco Catholic Church.

iv. “The Transfer” means the transfer of the Vendor’s right, title and interest in the property
to the Purchaser or Purchaser’s Nominee in the form acceptable to the Purchaser.

2.0. PURCHASE PRICE

The parties have agreed that the Purchase Price, to be a sum of Eleven Million, Two Hundred
and Fifty Thousand, Kenyan Shillings (KES 11,250,000.00).

2.1. Deposit

Upon the execution of this agreement, a deposit of 25% of the purchase price is payable to the
vendor; that being, Two Million, Eight Hundred and Twelve Thousand, Five Hundred
Kenyan Shillings (KES 2,812,500.00)

2.2. Balance

The balance (remaining amount) shall be payable on the/ upon completion; that being Eight
Million, Four Hundred and Thirty-Seven Thousand, Five Hundred Kenyan Shillings (KES
8,437,500.00).

2.3. Interest on late payment

If at the completion date, the purchasers do not pay the balance in full amount, there shall be an
interest of 14% per month on the remaining amount.

3.0. LAW SOCIETY OF KENYA CONDITIONS OF SALE

The Law Society Conditions of Sale (2015) shall be applicable to this sale in so far as they are not
inconsistent with or repugnant to; the conditions contained in this Agreement as agreed by the
parties.

4.0. COMPLETION

On the completion date, in exchange for the Purchase Price or a suitable undertaking to pay the
balance of the Purchase price, the Vendor’s Advocates shall deliver to the Purchaser or his
Advocates the requisite completion documents. (The list of which is annexed herein and marked
“ASA-1”)

5.0. REPRESENTATIONS AND WARRANTIES

Condition 11 of the LSK Conditions of Sale, 2015 on Representations and warranties shall apply
to this agreement.

6.0. COSTS

Each party shall pay the legal charges of their own Advocates of and incidental to the preparation
and completion of this Agreement and Transfer.

7.0. TIME IS OF ESSENCE

For timelines, time limits and deadlines outlined and specified in this agreement for sale, time is
of essence.

8.0. CONDITION OF THE PROPERTY

The vendors are selling the property and the interest thereof, free of any encumbrances.

The property being sold is an off-plan apartment that is to be erected on the vendor’s property. For
a full description of the property, the amenities, pictures of the property, the fittings and the
amenities will be annexed herewith. See Annexure Marked ASA-2. More so a copy of the map,
will be attached to this agreement. See annexure Marked ASA-3.

9.0. DEFECTS LIABILITY

If within a period of 12 months (1 year) patent defects, that is structural defects, are noticed, the
vendor shall rectify those defects and bear the cost thereof, on the condition that such defects and
damages were not caused by the purchasers. Provided that, the cost of repair and rectification of
latent defects, if any, will be borne by the purchasers.

10.0. TRANSFER OF REVERSIONARY INTEREST

The vendor shall transfer their reversionary interest back to Emerald Management Company
within Sixty (60) days after the successful sale of all the four (4) penthouses.

11.0. DISPUTE RESOLUTION

If any dispute and/or disagreement about this transaction, concerning the terms and conditions set
out in any of the clauses in this agreement, the parties shall negotiate in good faith to amend such
term and condition so as to make the same valid and enforceable. If such negotiation shall not
alleviate the dispute, the same matter shall be committed to arbitration and mediation before filing
of any suit in any court of law.

PROVIDED ALWAYS AND AGREED HEREIN THAT;

This Agreement for Sale is executed together with the Lease Agreement dated the _____ day of
____________, 20____ which is annexed herein and marked ASA-4.

12.0. EXECUTION
IN WITNESS WHEREFORE this Agreement has been duly executed by the parties on the day
and the year written on the face of this agreement.

SEALED with the common seal of the Vendor:

EMERALD CONSTRUCTION COMPANY LIMITED

In the presence of

Director ................................................................

Director/ Secretary Witness ...................................................................

I CERTIFY that the above named ..............................................and ……………………….

Director and Director/Secretary respectively appeared before me the................................... Day of
............................... 20........ and being known to me/identified by ....................................of
....................................... acknowledged the above signature to be his/hers and that he/she had
freely and voluntarily executed this Agreement and understood its contents and the financial legal
and economic implications thereof.

....................................

KARIUKI DENNIS, ADVOCATE

SMART & SHARP ASSOCIATES.

SIGNED by the Purchasers,

1. GIANPERO MASCOLINI ……………………………….

I CERTIFY that the above named ..............................................appeared before me on
the................................... Day of ............................... 20........ and being known to me/identified by
....................................of ....................................... acknowledged the above signature to be his/hers
and that he/she had freely and voluntarily executed this Agreement and understood its contents
and the financial legal and economic implications thereof.

....................................

ADVOCATE

2. ISABELLA RICOTTA …………………………………

I CERTIFY that the above named ..............................................appeared before me on
the................................... Day of ............................... 20........ and being known to me/identified by
....................................of ....................................... acknowledged the above signature to be his/hers
and that he/she had freely and voluntarily executed this Agreement and understood its contents
and the financial legal and economic implications thereof.

....................................

ADVOCATE