Sunteți pe pagina 1din 19

THE KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME

ATP 107: CONVEYANCING

2018/2019 ACADEMIC YEAR PROJECT

FIRM C15

LECTURER: MS. HELENE NAMISI


TABLE OF CONTENTS

Contents
TABLE OF CONTENTS ............................................................................................................ 1
MEMORANDUM....................................................................................................................... 2
1. Amalgamation of the two parcels of land. .................................................................................... 2
2. Relevant Consents:.................................................................................................................... 3
LICENSE AGREEMENT ........................................................................................................... 5
1. GRANT OF LICENSE ........................................................................................................ 6
2. LICENSEE’S COVENANTS ............................................................................................ 7
3. LICENSOR'S COVENANTS. ................................................................................................. 7
4. TERMINATION .................................................................................................................... 7
5. APPLICABLE LAW ............................................................................................................... 7
AGREEMENT FOR SALE ................................................................................................... 9
1. DEFINITION AND INTERPRETATION...........................................................................11
2. AGREEMENT FOR SALE AND INTEREST SOLD ..........................................................12
3. PURCHASE PRICE AND DEPOSIT .................................................................................12
4. BALANCE OF PURCHASE PRICE ..................................................................................12
5. COMPLETION DATE ......................................................................................................12
6. COMPLETION DOCUMENTS .........................................................................................12
7. MATTERS AFFECTING THE PROPERTY ......................................................................13
8. POSSESSION ....................................................................................................................13
9. BREACH OF AGREEMENT BY EITHER PARTY ...........................................................13
10. LAW SOCIETY CONDITIONS OF SALE...........................................................................14
11. MANAGEMENT COMPANY ..............................................................................................14
13. JURISDICTION..................................................................................................................15
ANNEXURE 1 ............................................................................. Error! Bookmark not defined.

1
MEMORANDUM

TO: THE MANAGING DIRECTOR.


COMPANY: EMERALD CONSTRUCTION COMPANY LIMITED.
FROM: SMART & SHARP ASSOCIATES.
DATE: 26/06/2018
SUBJECT: DEVELOPMENT OF L.R.209/12345 AND L.R.209/12346

I write this memo with reference to the above mentioned matter, having received instructions
during the client interview; to act on your behalf on the same. The following, are fundamental
issues that need to be addressed before construction begins.

1. Amalgamation of the two parcels of land.


Amalgamation of land entails combining two or more adjacent parcels of land owned by the
same person under separate titles so as to become a single parcel held under one title.
Application for amalgamation is done to the physical planning committee of the county
government. The process of amalgamating land in Kenya includes the following;
(i)Drafting of an amalgamation scheme- the amalgamation scheme is drafted by a registered
Physical Planner. It shows the plots or parcels to be combined. The schemes are submitted for
approval to the physical planning committee of the county government. The scheme should be
submitted in 5 blue prints and one linen print.
(ii) Submission of a planning brief. This brief explains the intended amalgamation which should
be signed accordingly by a registered Physical Planner.
(iii) Make application to the county government. This application is made by a duly filled and
signed PPA 1 form in triplicate to a registered Physical Planner.
(iv) Payment of requisite fee. The payment receipt, planning brief and the amalgamation scheme
are attached to the PPA1 form and submitted to the county government for approval.
(v)The applicant should produce the ownership documents (title deed), a comprehensive location
plan and rates payment receipts.

2
Once the approval for amalgamation of the parcels of land has been done, the titles are submitted
to the lands registry for cancellation, noting in the register and registration of the amalgamated
title.

2. Relevant Consents:
The two parcels of land which you purchased are surrounded by Don Bosco Catholic Church,
offices, communication masts, hotels and the Kadhis Court. Therefore, before construction
begins, you will require a zoning approval from the Nairobi County Government. This will be
done by the county government because according to the Physical Planning Act, they have the
power to formulate by-laws to regulate zoning regarding land use and development.
Previously, the area which you purchased was a residential area. Your intention for these parcels
of land is for residential/commercial purposes. For you to be able to succeed in constructing the
office blocks, you will need to apply for the change of user from residential to commercial. This
requires the services of the Director of Physical Planning as he has the powers to advice the
Commissioner of Lands (currently National Land Commission) and local authority on the most
appropriate use of land. It is important that you visit the Department of Physical Planning at the
Ministry of Lands and Physical Planning so that you can acquire the application forms. They will
advise further on the forms to attach together with the application forms.
The parcels of land are leased by the National Land Commission (NLC) on behalf of the
National Government. Before any construction begins, you will require consent from the NLC
which would give you the go ahead to put up the office complex. Additionally, construction of a
building without proper approvals jeopardizes the safety of the occupants and places the building
at risk of demolition. The National Construction Authority (NCA) Act gives the NCA the
function of providing consultancy and advisory services within the construction industry.
Therefore, you are required to get their approval in order to adhere to all the proper and safety
construction guidelines.
Another consent that you require is from National Environment Management Authority (NEMA)
who is mandated to carry out an Environmental Impact Assessment (EIA) before commencing or
conducting the relevant project to ensure proper management and utilization of resources for
sustainability. You are therefore required to submit a project report to NEMA, in the prescribed
form accompanied by the prescribed fee. The EIA studies and reports required will be conducted

3
by individual experts or a firm of experts authorized in that behalf by NEMA. The study will be
published in at least two newspapers circulating in the area or proposed area of the project and
over the radio a notice stating:- A summary description of the project, the place where the project
is to be carried out; the place where the environmental impact assessment study will be
conducted, evaluation or review report may be inspected; and a time limit of not exceeding sixty
days for the submission of oral or written comments for the environmental impact assessment
study, evaluation or review report.

The EIA study will pass through a lead agency for comments, evaluation and review within 30
days of the written report, thereafter, through Technical Advisory Committee on Environmental
Impact Assessment. Subsequently NEMA will issue an EIA License once satisfied with the EIA
report.

Once construction is complete, you need to consider the aspect of controlled tenancy which is a
tenancy of a shop, hotel or catering establishment which has not been reduced into writing or if it
is in writing, is for a period not exceeding five years, contains a provision for termination other than
for breach of covenant within five years from the commencement or relates to premises of a class
specified by notice in the Gazette referencing to rent paid or ratable value entered into a valuation
roll under the Valuation for Rating Act. In future, ensure that your drafted lease agreements to the
properties do not create a controlled tenancy as the tenants will be protected from the exploitation
and eviction from business premises by you as the landlord subject to the Landlord and Tenant
(Shops, Hotels and Catering Establishments) Act.

Regarding the above issues, kindly contact our firm for any clarification or need for further
information at your earliest convenience.
THE MANAGING PARTNER,
SMART & SHARP COMPANY ADVOCATES.

4
LICENSE AGREEMENT

DATED 11th July 2018

EMERALD CONSTRUCTION LIMITED

-AND-

EUGENE BLACKS

License to use the underground parking bay situated on


Land Reference Number L.R 209/12347
Nairobi.

DRAWN & FILED BY:


SMART & SHARP ASSOCIATES,
THE MALL, 2ND FLOOR, WESTLANDS,
P.O. BOX 56078-00100.

5
LICENSE AGREEMENT

THIS AGREEMENT is made on this 11th day of July 2018


BETWEEN
EMERALD CONSTRUCTION LIMITED (Herein referred to as ‘the Licensor')
AND
EUGENE BLACKS (Herein referred to as ‘the Licensee’)

IT IS HEREBY AGREED as follows: -

WHEREAS:
(i) The Licensor is the registered owner of the offices in Emerald Construction Limited in
Upper Hill area in the city of Nairobi situated on Land Reference Number L.R 209/12347.
(ii) The Licensee has requested and the Licensor has agreed to grant a License to the
Licensee (being this License) to use the underground parking bay (‘Premises’) situated on
the Property solely for parking purposes.
(iii) The Licensor has agreed to grant this license to the Licensee to use the said premises on
the following terms and conditions agreed to between the parties hereto.
IT IS AGREED AS FOLLOWS:

1. GRANT OF LICENSE
1.1 In consideration of the License fee, the Licensor shall hereby grant license to the Licensee to
use the premises for a period of TWO years.
1.2 The renewal shall be at the sole discretion of the owner.
1.3 The Licensee shall pay to the Licensor a sum of Ksh 10,500/= (Kenya Shillings ten thousand
five hundred only) per month inclusive of VAT as license fee.
1.4 The Licensee shall pay upfront to the Licensor a refundable deposit of 3 months fee of Ksh
31,500 (Kenya Shillings thirty one thousand five hundred only) upfront.

6
2. LICENSEE’S COVENANTS
The Licensee covenants with the Owner that he/she shall:
2.1 Sign this license and upon payment of the license fee and deposits shall have access of
the premises on the date specified herein.
2.2 Pay the License Fee of Ksh. 10,500/= (Ksh. ten thousand five hundred only) monthly, in
advance or before the first day of every month inclusive of VAT.
2.3 Submit three months deposit to the licensor upfront. The deposit of which is refundable.
2.4 Adhere to all guidelines placed by the management.
2.5 Not to block other users when parking and must park only at the designated parking bay.

3. LICENSOR'S COVENANTS.
3.1 The Licensor reserves the right to terminate the agreement and/or reallocate the user a
different parking bay.

4. TERMINATION
The licensor reserves the right to terminate the agreement which shall be in writing
and delivered to the licensee thirty days before the termination date.

5. APPLICABLE LAW
This license shall be deemed to be made and entered into pursuant to the laws of the Republic of
Kenya.

IN WITNESS WHEREOF this agreement has been duly executed by the parties hereto on the
day and the year first hereinabove written.

SEALED with the Common Seal of )

the Licensor in the presence of:- )

DIRECTOR )

7
DIRECTOR/SECRETARY )

SIGNED by the Licensee; )

………………………………………… )

in the presence of:- )

………………………………………… )

Name of Attesting Witness: )

………………………………………… )

Address of witness: )

………………………………………… )

Occupation of witness: )

………………………………………… )

8
Dated on the 11th day of July 2018

AGREEMENT FOR SALE

BETWEEN

EMERALD CONSTRUCTION LIMITED

AND

GIANPERO MASCOLINI AND ISABELLA RICOTTA

REFERENCE NUMBER L.R 209/12347


(THE PROPERTY, APARTMENT A1)

DRAWN & FILED BY:


SMART & SHARP ASSOCIATES,
THE MALL, 2ND FLOOR, WESTLANDS,
P.O. BOX 56078-00100.
NAIROBI.

9
AGREEMENT FOR SALE

THIS AGREEMENT is made on the 11th day of July 2018

BETWEEN:

EMERALD CONSTRUCTION LIMITED a company registered in the Republic of Kenya of


P.O. Box 88211-00100 Nairobi, Kenya. (Herein referred to as ‘the Vendor', which expression
shall include their heirs, successors and personal representatives) of the one part (of the first part)
AND
GIANPERO MASCOLINI of ID number is 22362103 and ISABELLA RICOTTA of ID
number 32546789 of P.O. BOX 63208-00200, Nairobi, in the Republic of Kenya (Hereinafter
called ‘the purchasers’ which expression shall include their heirs, successors and personal
representatives) of the other part (of the second part)

WHEREAS:
(i) The vendor is a registered company in the business of buying land, constructing and selling
properties.
(ii) A penthouse number A1 on the building registered as L.R. 209/12347. The interest sold by
the entire building is Leasehold for 99 years from 1st December 1980.
(iii) The vendor intends to construct on the said property an office complex comprising of 20
floors. The purchaser aware that the construction is yet to be undertaken has agreed to purchase a
penthouse unit (Hereinafter referred to ‘Apartment A1’).
(iv) The vendor intends to construct 4 luxury penthouse apartments. Upon purchase one share of
the management company shall devolve to the new purchaser.
(v) Construction of the luxury penthouse apartment shall be in accordance with the approved
sketch plans attached in Annexure 1.
(v) The vendor shall be the beneficial owner of all the shares of the management, however on
sale of all the apartments the shares shall devolve to the purchasers. Beneficial ownership by the
vendor shall end upon sale of the last apartment.

10
(iv)The vendor is desirous to sell and the purchasers are desirous to buy the property at a
consideration of Kenya Shillings forty five million only (Ksh. 45,000,000) Hereinafter
referred to as ‘the purchase price’)

IT IS HEREBY AGREED as follows:-

1. DEFINITION AND INTERPRETATION


In this agreement;
1.1 The following words and expressions (save where the context requires otherwise) bear the
following meanings;
(i) ‘The Purchase Price’ means forty five million Kenya Shillings only. (Ksh.
45,000,000/=)
(ii) ‘The Vendor’s Advocate’ means Smart & Sharp Associates. The Mall, 2nd floor,
Westlands, P.O. BOX 56078-00100, Nairobi, Kenya.
(iii) ‘The Purchasers’ Advocate’ means Firm C15 & Co. Advocates, The Oval, 3rd floor,
Westlands, P.O. BOX 12345-00100, Nairobi, Kenya.
(iv) ‘The Managing Company’ means Emerald Construction Management Company.
(v) ‘The Transfer’ means the transfer of the vendor’s right, title and interest in the property
to the Purchasers or the Purchasers’ Nominee in the form acceptable to the Purchasers as
well as one share in the management company per each unit duly transferred.
(vi) ‘The Amenities’ means 10” ceiling, spacious floor plans, 3 bedrooms all ensuite,
master bedroom with one full size bathroom and a separate powder room with shower,
indoor Jacuzzi, underfloor heating, custom kitchen, mahogany island with hones Basaltina
countertop and wolf appliances and large wood paneled closets with built in drawers and
storage.
(vii) ‘The Property’ means Apartment A1 that is situated on the building registered as L.R.
209/12347. .
1.2 Words that import the singular meaning where the context so admits include the plural
meaning and vice versa.
1.3 Where the context so admits the expressions “the vendor” and “the purchasers” include the
respective nominees and or assignees of the vendor and the purchasers.

11
2. AGREEMENT FOR SALE AND INTEREST SOLD
2.1 The Vendor has the intention to sell the luxury penthouse, Apartment A1 and the Purchasers
have the intention to buy the luxury penthouse, Apartment A1 at the agreed purchase price of
Kenya Shillings forty five million only (Ksh. 45,000,000).
2.2 The interest sold is leasehold for the residue now unexpired of the term of ninety-nine (99)
years as of 1st of December 1980, of a luxury penthouse apartment to be erected by the vendor on
the property measuring six (6) acres and registered as L.R. 209/12347.

3. PURCHASE PRICE AND DEPOSIT


3.1 The deposit as agreed by the vendor and the purchaser is 25% of the purchase price (Kenya
Shillings eleven million two hundred and fifty thousand only (Ksh. 11,250,000). Hereinafter
referred to as (the ‘deposit’) to be paid upon execution of the agreement.
3.2 The deposit is to be paid and held by the advocate of the vendor as stakeholder.

4. BALANCE OF PURCHASE PRICE


4.1 The balance of the purchase price is the sum of Kenya Shillings thirty three million, seven
hundred and fifty thousand only (Ksh. 33,750,000).
4.2 The balance of the purchase price is to be paid to the vendor’s advocate upon completion and
issuance of certificate of occupation.

5. COMPLETION DATE
Completion shall be within 90 days, from the date of issuance of certificate of occupation.

6. COMPLETION DOCUMENTS
The vendor’s advocate is to deliver the following documents to the purchaser’s advocate upon
completion of payment by the purchaser:
(i) Certificate of occupation
(ii) Certificate of practical completion

12
(iii) Certified copy of certificate of incorporation of the management company
(iv) Two passport size photos of 2 company directors
(v) Copy of the KRA PIN certificate of the company
(vi) Copy of the 2 directors’ national identification card
(vii) Transfer documents duly executed by the vendor (in triplicate)
(viii) Consent from the National Land Commission
(ix) Land Rates clearance certificate.
(x) Land Rent clearance certificate.
(xi) Original receipts evidencing payment of rates and rents
(xii) Lease agreement
(xiii) Share Certificate
(xiv) Transfer of the share duly executed

7. MATTERS AFFECTING THE PROPERTY

7.1 The vendor shall incorporate a management company which shall manage the entire
development.
7.2 The vendor will transfer the interest of the property to the management company upon
issuance of certificate of practical completion.
7.3 The vendor will transfer the reversionary interest to the management company.
7.4 The purchasers will have one share of the management company per unit and will receive the
share certificate to signify the transfer.
7.5 The purchasers shall have 6 months grace period after issuance of certificate of occupation
to state any and all defects of the property.

8. POSSESSION
8.1 The vendor shall hand over vacant possession of the property, Apartment A1 with all its
amenities.

9. BREACH OF AGREEMENT BY EITHER PARTY


9.1 PURCHASER

13
9.1.1 If the Purchaser shall fail to comply with any provisions of this Agreement including the
provisions as to payment of the Purchase Price on the completion date the Vendor shall be
entitled to serve a Notice in writing upon the Purchaser requiring the Purchaser to remedy the
same within Twenty One (21) days from the date on which such notice is served on the
Purchaser.
9.1.2 If the Purchaser shall fail to remedy the breach before the expiry of the said notice then the
Vendor shall be entitled at the Vendor’s absolute discretion either; to extend the time for
completion; or to rescind this Agreement by notice on that behalf to the Purchaser and to retain
the deposit as liquidated damages.

9.2 VENDOR
9.2.1 If for any reason the Vendor shall be unable to complete this transaction by the completion
date then the Purchaser shall be entitled to serve a Notice in writing upon the Vendor requiring
the Vendor to complete the said transaction within Twenty One (21) days from the date upon
which such Notice is served on the Vendor.
9.2.2 If the Vendor shall fail to complete the said transaction before the expiry of the said Notice
then the Purchaser shall be entitled to (at the Purchaser’s absolute discretion) either; to extend
the time for completion; or to rescind this Agreement by Notice in writing in that behalf to the
Vendor or to immediately demand and require a full refund of the deposit.

10. LAW SOCIETY CONDITIONS OF SALE


The Law Society of Kenya Conditions of Sale (2015 revision) so far as they are not varied by or
inconsistent with the conditions herein are deemed to be incorporated in this agreement.

11. MANAGEMENT COMPANY


11.1 Emerald Construction Limited shall incorporate a management company herein referred to
as Emerald Construction Management Company.
11.2 The management company is incorporated to manage the property and aid in ease of
administration. Once incorporated, Emerald Construction Limited shall not directly deal with the
management of the premises.

14
11.3 Upon the sale of the last penthouse unit the reversionary interest shall be transferred to the
management company.
12. REVERSIONARY INTEREST
12.1 Upon transfer of the last unit the reversionary interest shall be transferred to the
management company.
12.2 Reversionary interest shall not be transferred before sale of the last unit and hence shall vest
in Emerald Construction limited until such time.

13. JURISDICTION
This Agreement shall be interpreted according to the Laws of Kenya and the parties hereby
submit to the jurisdiction of the Courts of Kenya.
IN WITNESS WHEREOF this agreement has been duly executed by the parties hereto on the
day and the year first hereinabove written.

SEALED with the Common Seal of )

the Purchaser in the presence of:- )

DIRECTOR )

DIRECTOR/SECRETARY )

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


Director and Director/Secretary respectively appeared before me on the
………………...…..……. day of ……..……….…..……. 20………, and being known to
me/identified by ………….……………………….. of ……………..…………… acknowledged
the above signatures or marks to be theirs respectively and that they have freely and voluntarily
executed this Agreement and understood its contents and the financial legal and economic
implications thereof.

15
…………………………………….………

SIGNED by the Purchaser the said )

………………………………………… )

in the presence of:- )

………………………………………… )

Name of Attesting Witness: )

………………………………………… )

Address of witness: )

………………………………………… )

Occupation of witness: )

………………………………………… )

Advocate )

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

16
SIGNED by the Purchaser the said )

………………………………………… )

in the presence of:- )

………………………………………… )

Name of Attesting Witness: )

………………………………………… )

Address of witness: )

………………………………………… )

Occupation of witness: )

………………………………………… )

Advocate )

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.

17
………………………………
ADVOCATE

18