Thursday, July 8, 2010
About us
Vision and Mission History
"why we are here?" "where we came from?"
Vision
"To be the best and most professional law firm in the nation of Kenya and the continent of Africa"
Mission
Mwaure & Mwaure Waihiga & Co. Advocates exist to provide quality, competitive and innovative legal services to its clients within and outside Kenya observing professionalism, Christian values, honesty and transparency.
Objectives
Our Key objectives are to achieve the highest level of excellence, high professional standards and provide expeditious and honest services.The firm has a very good reputation both within and outside the legal fraternity.
Mwaure & Mwaure Waihiga & Co. Advocates was begun in 1987. Mr David Mwaure Waihiga, one of the founders of the firm has been practising as an advocate of Kenya since 1983. Prior to that he worked as Government State counsel in 1983 but the rest of the time as a private practitioner in various companies.
Mrs. Anna K. Mwaure worked as a resident magistrate between 1983 to 1987 but the rest of the time as a private practitioner. She also worked as a consultant in legal matters for two years at World Vision Kenya. Anna also lectures part time at Daystar University both in Law and Communication and also at St Pauls University.
"why we are here?" "where we came from?"
Vision
"To be the best and most professional law firm in the nation of Kenya and the continent of Africa"
Mission
Mwaure & Mwaure Waihiga & Co. Advocates exist to provide quality, competitive and innovative legal services to its clients within and outside Kenya observing professionalism, Christian values, honesty and transparency.
Objectives
Our Key objectives are to achieve the highest level of excellence, high professional standards and provide expeditious and honest services.The firm has a very good reputation both within and outside the legal fraternity.
Mwaure & Mwaure Waihiga & Co. Advocates was begun in 1987. Mr David Mwaure Waihiga, one of the founders of the firm has been practising as an advocate of Kenya since 1983. Prior to that he worked as Government State counsel in 1983 but the rest of the time as a private practitioner in various companies.
Mrs. Anna K. Mwaure worked as a resident magistrate between 1983 to 1987 but the rest of the time as a private practitioner. She also worked as a consultant in legal matters for two years at World Vision Kenya. Anna also lectures part time at Daystar University both in Law and Communication and also at St Pauls University.
Wednesday, July 7, 2010
Voter Registration Confirmation
It is imperative and advisable to ensure that your voter registration details are as you have them on your voters card and that they are in the order you need them to be ON OR BEFORE THE 11TH JULY OF 2010. Visit your registration centre to affirm the details. If you are unable to do so you can just send an SMS(short message service)to 3007 with your ID no. whereupon you will get a message with your details as set out in the IIEC database or you will get a message asking you to visit your registration station to correct your details. REMEMBER YOUR VOTE IS YOUR VOICE!!!!!
Stamp Duty, By George W. Onyore
STAMP DUTY
The Stamp Duty is a form of revenue for the Government.
Section 5 provides that every instrument set out in the Schedule to the Act, irrespective of where it was signed as long as it relates to property in Kenya, shall be chargeable with stamp duty specified in the said Schedule.
Under Section 6 of the Stamp Duty Act documents executed in Kenya and which require stamping must be stamped within 30 days of execution. 30 days from the date of the document.
For documents executed outside Kenya, Stamp Duty must be paid within 30 days of receipt of the documents in Kenya. This becomes a matter of fact as the date the document was received in Kenya has to be proved.
Section 20 states that failure to pay Stamp Duty constitutes an offence for which a fine is payable.
A document which requires to be stamped but which is not stamped cannot be produced in evidence in court in civil proceedings.
STAMPING OUT OF TIME
The collector has the authority to allow stamping of a document where he is satisfied that the omission or neglect to stamp did not arise from any intention to evade payment of Stamp Duty or to defraud, and the circumstances of the case justify leave being given to stamp out of time.
Where such leave is given, the instrument is stamped on payment of the unpaid stamp duty and of a penalty unless the Collector waives the penalty on being satisfied that the circumstances warrant such waiver.
REFUND OF STAMP DUTY
The Act gives the Collector power to refund Stamp Duty if he is satisfied that an instrument has been erroneously assessed with duty or penalty.
The application for a refund must be made within 1 year after the date of payment of that duty.
Under the GLA and the RLA, no document required by law to be stamped shall be accepted for registration unless duly stamped. This is under Section 117 of GLA and Section 111 of the RLA.
The instruments that are required to be stamped include:
1. lease
2. transfer
3. charge
4. mortgage
5. discharge
6. re-conveyance of mortgage
7. insurance policy
8. debenture and
9. Memorandum and Articles of Association
The amount of Stamp Duty depends on the transaction in question, that is, whether it is a transfer, lease, charge, etc.
The assessment of Stamp Duty is based on the consideration stated in the instrument.
Section 10 of the Stamp Duty Act – any factor or circumstance affecting the stamp duty must be stated in the instrument, which means that the instrument must identify itself to begin with because that affects Stamp Duty. Secondly the document must also show the consideration, it must show the value of the subject matter. In a Transfer consideration is the sale price, consideration in a Charge will be the loan, under a Lease the rent is the consideration and therefore any matter affecting the stamp duty must be stated and consideration is one of those matters.
Failure to declare the correct amount for stamp duty is an offence.
Calculating Stamp Duty:
Transfers are divided into two categories
1. Urban Land – land in the municipalities - rate of stamp duty is 4%
2. Agricultural land Outside the Municipality. – the rate of stamp duty is 2%
If for example the Purchase Price on agricultural land in the municipality is KShs. 2,000,000, the rate is 4% and therefore the amount of stamp duty payable would be KShs. 80,000/-. For a agricultural property in a rural area the purchase price is KShs. 1,000,000 at the rate of 2% the amount of Stamp duty payable on transfer will be 20,000/-. Under a Mortgage/Charge the stamp duty amount is based on the amount secured and the rate is KShs. 2/- per 1000/- or 0.2% (0.002) . for example if the Mortgage amount is KShs. 5,000,000/- at the rate of 0.002% the stamp duty chargeable will be 10,000/-. For a further Mortgage/Charge the rate is 1KShs. Per 1000 – 0.001 or 0.1% If for example there was a further mortgage of KShs. 2,000,000/- the Stamp Duty payable will be KShs. 2000. The difference between a further charge and a second charge, further charge is an additional facility provided by the same lender whereas a 2nd charge another institution is giving the loan but charges the same property.
For a second Mortgage/Charge the rate will be 0.2% because it will be like a fresh charge. The rate for an equitable mortgage or charge the rate is the same as that of a further charge which is .1%
For a Discharge of Charge or re-conveyance of mortgage it is 50cents for every 1000/- which is 0.05% or 0.0005.
The difference between a legal charge and an equitable charge lies in the way both charges are created. An equitable charge/mortgage is created by a simple deposit of the document of title without more this deposit of the document creates an equitable charge/mortgage, this kind of transaction does not require registration. A legal mortgage is created by Deed which must be registered and when it is registered it is notice to the public.
The Stamp Duty is a form of revenue for the Government.
Section 5 provides that every instrument set out in the Schedule to the Act, irrespective of where it was signed as long as it relates to property in Kenya, shall be chargeable with stamp duty specified in the said Schedule.
Under Section 6 of the Stamp Duty Act documents executed in Kenya and which require stamping must be stamped within 30 days of execution. 30 days from the date of the document.
For documents executed outside Kenya, Stamp Duty must be paid within 30 days of receipt of the documents in Kenya. This becomes a matter of fact as the date the document was received in Kenya has to be proved.
Section 20 states that failure to pay Stamp Duty constitutes an offence for which a fine is payable.
A document which requires to be stamped but which is not stamped cannot be produced in evidence in court in civil proceedings.
STAMPING OUT OF TIME
The collector has the authority to allow stamping of a document where he is satisfied that the omission or neglect to stamp did not arise from any intention to evade payment of Stamp Duty or to defraud, and the circumstances of the case justify leave being given to stamp out of time.
Where such leave is given, the instrument is stamped on payment of the unpaid stamp duty and of a penalty unless the Collector waives the penalty on being satisfied that the circumstances warrant such waiver.
REFUND OF STAMP DUTY
The Act gives the Collector power to refund Stamp Duty if he is satisfied that an instrument has been erroneously assessed with duty or penalty.
The application for a refund must be made within 1 year after the date of payment of that duty.
Under the GLA and the RLA, no document required by law to be stamped shall be accepted for registration unless duly stamped. This is under Section 117 of GLA and Section 111 of the RLA.
The instruments that are required to be stamped include:
1. lease
2. transfer
3. charge
4. mortgage
5. discharge
6. re-conveyance of mortgage
7. insurance policy
8. debenture and
9. Memorandum and Articles of Association
The amount of Stamp Duty depends on the transaction in question, that is, whether it is a transfer, lease, charge, etc.
The assessment of Stamp Duty is based on the consideration stated in the instrument.
Section 10 of the Stamp Duty Act – any factor or circumstance affecting the stamp duty must be stated in the instrument, which means that the instrument must identify itself to begin with because that affects Stamp Duty. Secondly the document must also show the consideration, it must show the value of the subject matter. In a Transfer consideration is the sale price, consideration in a Charge will be the loan, under a Lease the rent is the consideration and therefore any matter affecting the stamp duty must be stated and consideration is one of those matters.
Failure to declare the correct amount for stamp duty is an offence.
Calculating Stamp Duty:
Transfers are divided into two categories
1. Urban Land – land in the municipalities - rate of stamp duty is 4%
2. Agricultural land Outside the Municipality. – the rate of stamp duty is 2%
If for example the Purchase Price on agricultural land in the municipality is KShs. 2,000,000, the rate is 4% and therefore the amount of stamp duty payable would be KShs. 80,000/-. For a agricultural property in a rural area the purchase price is KShs. 1,000,000 at the rate of 2% the amount of Stamp duty payable on transfer will be 20,000/-. Under a Mortgage/Charge the stamp duty amount is based on the amount secured and the rate is KShs. 2/- per 1000/- or 0.2% (0.002) . for example if the Mortgage amount is KShs. 5,000,000/- at the rate of 0.002% the stamp duty chargeable will be 10,000/-. For a further Mortgage/Charge the rate is 1KShs. Per 1000 – 0.001 or 0.1% If for example there was a further mortgage of KShs. 2,000,000/- the Stamp Duty payable will be KShs. 2000. The difference between a further charge and a second charge, further charge is an additional facility provided by the same lender whereas a 2nd charge another institution is giving the loan but charges the same property.
For a second Mortgage/Charge the rate will be 0.2% because it will be like a fresh charge. The rate for an equitable mortgage or charge the rate is the same as that of a further charge which is .1%
For a Discharge of Charge or re-conveyance of mortgage it is 50cents for every 1000/- which is 0.05% or 0.0005.
The difference between a legal charge and an equitable charge lies in the way both charges are created. An equitable charge/mortgage is created by a simple deposit of the document of title without more this deposit of the document creates an equitable charge/mortgage, this kind of transaction does not require registration. A legal mortgage is created by Deed which must be registered and when it is registered it is notice to the public.
Registration regimes in Kenya, By George W. Onyore
REGISTRATION SYSTEMS:
Forms of Documentation
In Kenya we have five land registration systems:
1. Registration of Documents Act 1901, RDA (Cap 285) 1st Document
2. Land Titles Act 1908, LTA (Cap 282)
3. Government Lands Act 1915, GLA (Cap 280)
4. Registration of Titles Act, 1920, RTA (Cap 281)
5. Registered Land Act 1963, RLA (Cap 300) and the Sectional Properties Act No 21 of 1987 which is applicable under the RLA.
The form of documentation is governed or determined by the statute under which a particular piece of land is registered.
REGISTRATION OF DEEDS AND REGISTRATION OF TITLES
The land registration systems are of two types
1. The registration of documents or deeds; The RDA, LTA and GLA fall under this type. The scrutiny is there but not as thorough as when one is scrutinizing a title. The State is just acknowledging that a conveyance was registered but beyond that they are not vouching for the validity of that transaction at all. It is just a record. One here has to trace the good root of title as there are no guarantees; it is up to one to establish the valid title of the person purporting to transfer title.
2. The registration of titles; The RTA and RLA fall under this type. The scrutiny under a Title is thorough and the state guarantees a title. That it is a valid document and that one can rely on it. The RLA register is clear that what you see is what you get and one should not even worry about who had the title before unlike in the registration of deeds where one has to worry about who owned the deed before.
The RDA 1901 was the simplest and first of all the documents dealing with land in Kenya. Section 4 talks of the compulsory registration and Section 5 about its being optional
The LTA only covers property at the Coast only the 10 mile coastal strip. Given under an agreement of the Sultan of Zanzibar and the Sultan of Oman, it was available for alienation by the British and was owned by some families who had it freehold or had freehold interests. Since the system of registration was rudimentary, even the way boundaries were demarcated was rudimentary so the demarcation was not systematised.
GLA 1915 – dealt with all the land in the hinterland. The Crown Lands Ordinance was replaced by the GLA and any titles registered under the RDA 1901 had to be registered afresh under the GLA. The GLA introduced a more refined system of the register where there were deed plans in the registry.
Methods of Registration under LTA and GLA
The method of registering is the same. Even the way the documents are drafted under these two regimes are the same. Conveyancing is by the way of a deed, signed, sealed and delivered.
RTA – ; The form of documentation under the RTA follows the statutory forms. Section 33 RTA. This section prohibits the Registrar of Titles from registering under the Act any document or instrument which is not in statutory form. Many advocates have borrowed some of the language and phraseology from the GLA and LTA for example “… this instrument is made on the …. Between Susan hereinafter referred to as the landlord on the one part and George hereinafter referred to as the tenant on the other part..” this is English phraseology that is common in both the GLA and LTA
Registered Lands Act; It is different from all the other Acts, form of documentation is statutory, enacted in 1963 and it is intended that eventually all land will come under this regime. We may never get all the land registered under the RLA. This Act was intended to make it possible for any property owner under this Act to be able to transact without having to rely overly on an advocate. Section 108 is to the effect that statutory forms must be used to register any transaction under this Act. The law requires that where advocates want to depart from the statutory forms, they must obtain consent from the Chief Land Registrar to use their own format. The Chief Land Registrar may issue an approval in the form of a letter if he is satisfied that the form meets the standards. The Chief quotes a reference number which will always be required to be shown on the format to the effect that the chief registrar has approved the format under the quoted number e.g. CLR3VOL XXIV.
Procedural and Substantive Law governing various registration systems
LTA – the procedural is found in the Act itself but the substantive law is found in the ITPA and this also applies to the GLA. For example, if one wants to know the remedies of a lender under the GLA, they will not be found in the GLA but under Section 69 of the ITPA. The provisions containing substantive rights are found in the ITPA.
RTA – the procedural law is contained in the RTA but where there has been a conversion, the GLA still applies especially in relation to matters that occurred before the property was transferred to the RTA regime. The substantive law will still be found in the ITPA. Where the RTA and ITPA are silent on a given matter related to the land, the common law will apply.
RLA – The Act itself contains both the procedural and substantive law. Section 163 states that “subject to the provisions of the RLA and save as may be provided by any written law for the time being in force, the common law of England as modified by the doctrines of equity shall extend and apply to Kenya in relation to land, leases and charges registered under the Act and interests therein but without prejudice to the rights, liabilities and remedies of the parties under any instrument subsisting immediately before such application.” Section 164 provides that the ITPA ceases to apply upon first registration under the RLA. This is a self-contained code. You don’t need to consult any other regime. Section 53 gives the rights and duties of a tenant and landlord. Where the Act is silent, ITPA does not apply but one goes straight to the common law.
Obtain conveyancing precedents – precedents of documents that have been registered.
Forms of Documentation
In Kenya we have five land registration systems:
1. Registration of Documents Act 1901, RDA (Cap 285) 1st Document
2. Land Titles Act 1908, LTA (Cap 282)
3. Government Lands Act 1915, GLA (Cap 280)
4. Registration of Titles Act, 1920, RTA (Cap 281)
5. Registered Land Act 1963, RLA (Cap 300) and the Sectional Properties Act No 21 of 1987 which is applicable under the RLA.
The form of documentation is governed or determined by the statute under which a particular piece of land is registered.
REGISTRATION OF DEEDS AND REGISTRATION OF TITLES
The land registration systems are of two types
1. The registration of documents or deeds; The RDA, LTA and GLA fall under this type. The scrutiny is there but not as thorough as when one is scrutinizing a title. The State is just acknowledging that a conveyance was registered but beyond that they are not vouching for the validity of that transaction at all. It is just a record. One here has to trace the good root of title as there are no guarantees; it is up to one to establish the valid title of the person purporting to transfer title.
2. The registration of titles; The RTA and RLA fall under this type. The scrutiny under a Title is thorough and the state guarantees a title. That it is a valid document and that one can rely on it. The RLA register is clear that what you see is what you get and one should not even worry about who had the title before unlike in the registration of deeds where one has to worry about who owned the deed before.
The RDA 1901 was the simplest and first of all the documents dealing with land in Kenya. Section 4 talks of the compulsory registration and Section 5 about its being optional
The LTA only covers property at the Coast only the 10 mile coastal strip. Given under an agreement of the Sultan of Zanzibar and the Sultan of Oman, it was available for alienation by the British and was owned by some families who had it freehold or had freehold interests. Since the system of registration was rudimentary, even the way boundaries were demarcated was rudimentary so the demarcation was not systematised.
GLA 1915 – dealt with all the land in the hinterland. The Crown Lands Ordinance was replaced by the GLA and any titles registered under the RDA 1901 had to be registered afresh under the GLA. The GLA introduced a more refined system of the register where there were deed plans in the registry.
Methods of Registration under LTA and GLA
The method of registering is the same. Even the way the documents are drafted under these two regimes are the same. Conveyancing is by the way of a deed, signed, sealed and delivered.
RTA – ; The form of documentation under the RTA follows the statutory forms. Section 33 RTA. This section prohibits the Registrar of Titles from registering under the Act any document or instrument which is not in statutory form. Many advocates have borrowed some of the language and phraseology from the GLA and LTA for example “… this instrument is made on the …. Between Susan hereinafter referred to as the landlord on the one part and George hereinafter referred to as the tenant on the other part..” this is English phraseology that is common in both the GLA and LTA
Registered Lands Act; It is different from all the other Acts, form of documentation is statutory, enacted in 1963 and it is intended that eventually all land will come under this regime. We may never get all the land registered under the RLA. This Act was intended to make it possible for any property owner under this Act to be able to transact without having to rely overly on an advocate. Section 108 is to the effect that statutory forms must be used to register any transaction under this Act. The law requires that where advocates want to depart from the statutory forms, they must obtain consent from the Chief Land Registrar to use their own format. The Chief Land Registrar may issue an approval in the form of a letter if he is satisfied that the form meets the standards. The Chief quotes a reference number which will always be required to be shown on the format to the effect that the chief registrar has approved the format under the quoted number e.g. CLR3VOL XXIV.
Procedural and Substantive Law governing various registration systems
LTA – the procedural is found in the Act itself but the substantive law is found in the ITPA and this also applies to the GLA. For example, if one wants to know the remedies of a lender under the GLA, they will not be found in the GLA but under Section 69 of the ITPA. The provisions containing substantive rights are found in the ITPA.
RTA – the procedural law is contained in the RTA but where there has been a conversion, the GLA still applies especially in relation to matters that occurred before the property was transferred to the RTA regime. The substantive law will still be found in the ITPA. Where the RTA and ITPA are silent on a given matter related to the land, the common law will apply.
RLA – The Act itself contains both the procedural and substantive law. Section 163 states that “subject to the provisions of the RLA and save as may be provided by any written law for the time being in force, the common law of England as modified by the doctrines of equity shall extend and apply to Kenya in relation to land, leases and charges registered under the Act and interests therein but without prejudice to the rights, liabilities and remedies of the parties under any instrument subsisting immediately before such application.” Section 164 provides that the ITPA ceases to apply upon first registration under the RLA. This is a self-contained code. You don’t need to consult any other regime. Section 53 gives the rights and duties of a tenant and landlord. Where the Act is silent, ITPA does not apply but one goes straight to the common law.
Obtain conveyancing precedents – precedents of documents that have been registered.
How much do you know about the law of succession?
If your parents or spouse dies today, what are the legal options available to you? How do you finally inherit that property?
Draft Constitution on Abortion-On-Demand by George William Onyore
Does the Draft Constitution Introduce abortion-on-demand?
About us
Mwaure & Mwaure Waihiga Advocates is a dynamic and progressive law firm in Kenya. Boasting years of success in legal profession, the firm has continued to offer Kenyans affordable, reasonable and quality legal care.
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