Mokua Manyara, Advocate of the High Court of Kenya
There is a showhouse somewhere along Kiambu Road that I think about often. It has quartz worktops, a kitchen island lit from beneath, a bedroom with a view of grass that has been rolled out that morning, and on the wall an artist’s impression of an estate that does not exist. The couple walking through it are in their thirties. They have been saving for six years. By the end of the afternoon they will have signed a booking form, paid a reservation fee and gone home believing they have bought a house. What they have actually bought is a promise, made by a company they have not investigated, secured by nothing, payable in instalments over three years, on land whose title still sits in somebody else’s name.
That is the transaction. Everything else is marketing.
I write this because the off plan purchase has become the ordinary way that middle income Kenyans acquire a home, and because the legal risks attached to it are almost never explained to the buyer at the moment when explanation would still make a difference. My argument is simple. An off plan purchase is not a purchase. It is an unsecured, interest free loan to a property developer, dressed in the vocabulary of ownership. Whether that loan is a wise one depends entirely on facts that no brochure will ever tell you, and that only diligence will uncover.
None of this is an argument against buying off plan. The discounts are real, the payment plans are genuinely kinder than a mortgage, and many Kenyan developers deliver exactly what they promised, on time, to a good standard. The argument is against buying off plan blind.
Consider first why the model exists. A developer needs capital before construction, and bank debt is expensive. Selling units before they are built converts future buyers into present financiers. The buyer is compensated for that service with a discount off the completed price, which is why the offer letters you receive contain those descending tables of discounted prices tied to early payment. You are being paid, in effect, a rate of return for lending money. What you are not given, and this is the whole of the problem, is the security that any bank lending the same amount would insist upon as a matter of course.
The risks that follow from this arrangement are these.
1. You are an unsecured creditor, not an owner. Until a lease or transfer is registered in your name you hold a contractual right against a company, nothing more. If the developer becomes insolvent you join the queue with every other creditor, and you join it behind the bank. Kenyan law gives an off-plan purchaser no priority, no lien and no charge over the unit for which the money was paid.
2. Your money is not ring fenced. Kenya has no statutory escrow regime for off plan developments. Your instalments go into the developer’s account and are spent on whatever the developer chooses to spend them on, which may be your estate or may be a different project entirely. Compare Dubai, which after its own wave of abandoned projects enacted Law No. 8 of 2007 requiring every off-plan payment to be deposited into a project specific escrow account, released only against verified construction milestones, supervised by the land department. Kenya has legislated nothing of the sort. The absence is the single largest gap in our property law.
3. The title you have been promised may not yet exist. In most estates you are buying a unit that has not been surveyed, in a building that has not been erected, on a mother title that has not been subdivided or sectionalised. Your sublease can only be registered once the developer has completed a chain of steps entirely within its own control. The Sectional Properties Act, 2020 has improved the framework for units in a building, but it has not shortened the queue at the registry, and it cannot compel a developer to do what a developer has no cash to do.
4. The estate may already be charged to a bank. This is not hypothetical. In proceedings before the Environment and Land Court at Thika, purchasers who had paid deposits for maisonettes discovered that the developer had charged the very property to a financier for Kshs 422,000,000 roughly a year after they bought, and that the financier was advertising the estate for auction under its statutory power of sale. Three years after payment they still had no executed agreements. A search taken before the first shilling changed hands would have shown the charge. Nobody took one.
5. Time is a risk that the contract will place on you. Read the completion clause in any standard offer letter. The fulfilment date is often left blank or marked to be determined. Delay outside the developer’s reasonable control is excused, with the boundary of reasonableness undefined. Where a remedy for delay exists at all it is usually a refund of your money without interest, available only after six months of default, and conditional on your own payments having been perfectly punctual. You bear the cost of inflation, of rent paid elsewhere in the meantime and of the opportunity foregone. The developer bears nothing.
6. Default clauses run one way. Forfeiture of ten or fifteen per cent of the purchase price on a buyer’s default is standard. So is the refinement that the balance will be refunded only once the unit has been resold and the developer has received equivalent money from the new buyer, which may be never. Meanwhile the developer commonly reserves a right to rescind before execution of the sale agreement without assigning any reason, returning your money without interest or compensation. Read those two clauses side by side and the asymmetry announces itself.
7. The standard form is designed to be unamendable. Offer letters increasingly provide that terms appearing in the offer will not be altered in the sale agreement, and that no changes to the lease will be accepted. The negotiating window is therefore the fifteen days before countersignature, and most buyers spend it celebrating rather than negotiating. Once the offer is signed the leverage is gone.
8. Statutory and common law protections are quietly contracted out. The Law Society Conditions of Sale, which give a party twenty one days’ notice before rescission, are a real protection. They apply only if incorporated. In a matter decided by the High Court in April 2026 a purchaser recovered a forfeited deposit precisely because the vendor had purported to rescind on seven days’ notice when the incorporated conditions demanded twenty-one. Whether that protection is in your contract is a question somebody must actually check.
9. Regulatory compliance is assumed rather than verified. An environmental impact assessment licence, county development permission, approved architectural plans, a certificate of practical completion and ultimately a certificate of occupation: each of these is a document, and each either exists or does not. A building erected without approvals is a building that can be marked for demolition, and a purchaser who never asked will find sympathy in short supply.
10. The costs you were quoted are not the costs you will pay. Stamp duty at four per cent of the higher of price or government valuation, the vendor’s legal and administrative fees, service charge paid a year in advance, management company incorporation and share capitalisation, utility connection, georeferencing: these disbursements routinely add six to eight per cent to a purchase price. They are payable before vacant possession, in cash, at the moment your savings are thinnest.
11. Nobody is checking whether the project is funded. Ask the uncomfortable question early. Which bank is financing this development, at what facility size, and has construction actually commenced? Kenyans who lived through the collapse of several highly marketed property and investment schemes over the past decade learned the answer to that question the expensive way. Haraka haraka haina baraka.
Against that catalogue, the diligence is not complicated. Before any money moves you or your advocate should have seen the title to the mother property together with the deed plan, an official search of recent date, the draft sale agreement and the draft sublease, the environmental impact assessment licence, the construction permit and county approvals, the approved building plans, the certificate of incorporation and KRA PIN of the developer, a CR12 with certified identification and PIN certificates of its directors, board minutes authorising the sale, rent and rates clearances, the consent of any authority holding a wayleave over the land, and structural certification confirming that the building is what it claims to be. A company search costs a few hundred shillings. A land search costs less than lunch. The information they yield is worth several million.
Which brings me to the question I am asked most often, and the reason I wrote this piece.
Buyers say to me: the developer’s advocate has already charged me legal fees, usually one and a half per cent of the price or thereabouts, and now you want me to pay again. Is this not double payment?
It is double payment. Pay it anyway.
The fee you pay to the developer’s advocate is not a fee for representing you. It is the developer’s cost of the transaction, contractually shifted onto your shoulders. Representation in law does not follow money; it follows the retainer. The advocate who drew that sale agreement takes instructions from the developer, owes a fiduciary duty to the developer, keeps the developer’s confidences and, when your interests and the developer’s interests diverge at two in the morning before completion, acts for the developer. That advocate is not being dishonest in doing so. They are doing their job. Their job is simply not you.
Our Court of Appeal put the principle beyond argument in King Woolen Mills Ltd (formerly Manchester Outfitters Suiting Division Ltd) & another v M/s Kaplan & Straton Advocates (Civil Appeal 55 of 1993) [1993] KECA 57 (KLR), where a firm had acted for both the lender and the borrower in the same transaction and later sought to act against the borrower. The Court held that “the conflict of interest is apparent and the common advocate should not act for one of his client or clients against the other client or clients in a subsequent litigation arising from the original transaction or the subject matter”. The reasoning rests on the fiduciary character of the retainer: knowledge acquired while acting for a client is confidential to that client. Convenience, speed and the saving of costs were pleaded in that case as the reason the practice was common in Kenya. The Court was unimpressed then. It should not persuade you now.
So the arithmetic is not one fee against two fees. It is a few hundred thousand shillings against the entire purchase price. Your own advocate is the only person in the room whose professional duty is to tell you not to sign.
Choose that person carefully, because a negligent advocate is worse than none at all. Four things are worth confirming before you instruct anybody.
Confirm that the advocate holds a current practising certificate and appears on the Roll. This takes one check on the Law Society of Kenya website and it disposes of an entire category of fraud, since section 34 of the Advocates Act bars any unqualified person from drawing conveyancing documents in the first place.
Ask about the professional indemnity cover, and ask for the figure. The Advocates (Professional Indemnity) Regulations, 2004 make a policy a condition of issuing a practising certificate, but the statutory minimum is one million shillings. One million shillings would not replace the parking space attached to the flat you are buying. A firm doing serious conveyancing work should carry cover measured in tens of millions, and should be able to tell you the number without hesitating. Where an advocate becomes evasive about their cover, that is the answer.
Be sceptical of a fee that is too low. Rule 3 of the Advocates (Practice) Rules forbids an advocate from holding themselves out as prepared to work below the scales in the Advocates (Remuneration) Order, and section 46 of the Advocates Act renders void any agreement to accept less than the prescribed remuneration. An advocate who offers to do your conveyance for a token sum is either breaking the rules of the profession or intends to make up the difference somewhere you cannot see. Neither should reassure you.
There is also a longstop worth knowing about. The Advocates Client Compensation Fund established under the Law Society of Kenya Act exists to compensate clients for loss occasioned by the dishonesty of an advocate, and professional indemnity cover responds to negligence. Both are slow, both are capped and neither is a substitute for choosing well at the outset. They are the parachute, not the aeroplane.
The couple in the showhouse will probably be fine. Most are. But the ones who are not tend to have a common history: no search, no advocate of their own, no sight of the approvals, a signature given inside fifteen days because the salesperson said the unit would be released to somebody else on Monday. The pressure to sign quickly is manufactured. It is the oldest instrument in the sales cabinet, and it exists precisely because a buyer who has time to think is a buyer who asks for documents.
What Kenya needs, and needs soon, is a statutory escrow regime for off plan developments, compulsory registration of developers with a competent authority, and mandatory pre contractual disclosure of approvals, financing and encumbrances. Until Parliament arrives at that conclusion, the burden of protection lies where it has always lain in this market: on the buyer, and on whoever the buyer has been wise enough to instruct.
Do not buy air. Buy a title, and pay somebody whose only duty is to make sure you get one.
Mokua Manyara is an Advocate of the High Court of Kenya and Senior Partner at MNW & Advocates LLP. This article is general commentary and not legal advice on any particular transaction.
