— By Harold Ayodo, an advocate with the High Court of Kenya.
Your rights as a purchaser
According to Mumbi Mionki, an Advocate of the High Court of Kenya practising Property Law /Conveyancing in Nairobi, one of the key things you should do as a purchaser is to make the necessary searches at the relevant authorities and ensure that the transfer of property is registered.
“For example, if a vendor fraudulently conveys property to a purchaser (for example, by selling to the bona fide purchaser (BFP) property that has already been conveyed to someone else), the BFP will take good title to the property,” says Mumbi.
According to Muthoni Wagenga, conveyance advocate, the Land Act provides that a certificate of title shall be held as conclusive evidence of proprietorship.
“However, there are exceptions to this like on the ground of fraud or misrepresentation to which the purchaser is proven to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme,” says Muthoni.
The purchaser is still protected even in the case of fraud because the parties with a claim to ownership in the property still have a cause of action against the party who made the fraudulent conveyance.
The purchaser has various avenues in case they feel short-changed. They can pull out of the sale agreement prior to its execution at any time and for any reason, with no legal obligation to the other.
Says Muthoni: “When signing the sales agreements, there is usually a clause that states that when you withdraw from the sale agreement, you will lose the ten per cent as the purchaser. You then can decide to forfeit this and pull out if you feel that your rights as a purchaser are not being protected.”
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