TABLE OF CONTENTS

MEMORANDUM .......................................................................................................................... 2

ISSUE STATEMENT ................................................................................................................. 2

SHORT STATEMENT ............................................................................................................... 2

STATEMENT OF FACTS ......................................................................................................... 2

DISCUSSION ............................................................................................................................. 3

Issue 1: The process of combining both plots before construction begins .............................. 3

Issue 2: The necessary documents to be sought from relevant Authorities............................. 3

Issue 3: The necessary consents required from various bodies ............................................... 3

CONCLUSION ........................................................................................................................... 4

CAR PARKING LICENCE............................................................................................................ 5

AGREEMENT FOR THE SALE OF LAND ............................................................................... 11

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 MEMORANDUM
To: Client (Emerald Construction Limited)
From: Smart & Sharp Associates
Date: 17th July 2018
RE: CONSTRUCTION OF OFFICE BLOCK IN UPPERHILL
The purpose of the Memo is to give legal advice before embarking on the construction of an
Office Block in Upper Hill area, Nairobi County.
ISSUE STATEMENT
There are certain issues that must be addressed before construction begins. They include:
i. The process of combining both plots before construction begins.
ii. The necessary documents to be sought from relevant Authorities.
iii. The necessary consents required from various bodies.
SHORT STATEMENT
The company intends on combining the plots it recently purchased. The Land Registration Act1
provides for the combination of adjoining lands. There is also the issue of seeking requisite
documents before embarking on the project. The relevant authorities where these documents will
be sought include: Nairobi County Government, National Land Commission (NLC) amongst
others.
There are also consents to be sought from various bodies to ensure that the construction goes on
without a hitch. The bodies include: National Environment Management Authority (NEMA) and
Nairobi County Government.
STATEMENT OF FACTS
Emerald Construction limited had purchased two plots: L.R. 209/12345 and L.R. 209/12346
from Edward Onsoto and Wangari Opondi who had previously acquired the plots under the
Tenant-Purchase scheme. They had acquired the said land from the Ministry of Works in the
1980s. The company now intends on building an office block that will include vast amenities
including a borehole.

1
Land Registration Act, No. 3 of 2012

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DISCUSSION
Issue 1: The process of combining both plots before construction begins
The first issue that needs to be addressed is the combination of the two plots. This process is
detailed under Section 22(1) of Land Registration Act which states that after the authentication
of the Cadastral Map, an application must be made to the Registrar for combination of the
parcels. Once it is approved, a new register, in respect of the new parcel of land, shall be opened.
In this case, the cadastral map will show that the two parcels actually border each other and are
under the same proprietor. A new Certificate of Title will be issued by the Registrar.
Issue 2:The necessary documents to be sought from relevant Authorities
The first document to be sought is a receipt showing that there are no outstanding water bills.
There were people who previously occupied the plots. Thus, it is essential that is cleared. The
receipt will be sought from the Nairobi Water Company which is managed by the Nairobi
County Government. In addition, important document to be sought from the stated County
Government is the Rate Clearance Certificate. This will signify that all rates accrued have been
paid. Rent Clearance Certificate must be sought from the National Land Commission (NLC).
Ms. Wangari and Mr. Onsoto were previously tenants. Thus, it is prudent that the proprietor has
affirmed that all rent payable has been cleared by the Commission.
Issue 3:The necessary consents required from various bodies
The first approval to be sought is from the Nairobi County Government. Under Section 29 of the
Physical Planning Act2which states that each local authority shall have the power to consider
and approve all development applications and grant all development permissions. Local
Authority is defined under Section 2 of the Local Government Act3which means a municipal,
county, town or urban council. Development is defined under Section 2 of the Physical
Planning Act which states it is a dwelling and shop on one plot of Land. Emerald Construction
Limited has to send the development plans and its particulars to the Local Authority for
approval.4 The plans show there is an intention to use the land for commercial purpose.
Commercial use includes shops, offices, hotels and restaurants.5 The plans will be referred to the
Director of Physical Planning who will make comments on it.6 The Local Authority shall consult

2
Cap 286
3
Cap 265
4
Section 30 Physical Planning Act, Cap 286
5
Ibid S. 30(6)
6
Ibid S. 32 (1)

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various officers such as the Director of Survey, Director of Urban Development, Chief Engineer
(Roads), Ministry of Public Works and Housing among other public officers. Comments from
the various officers shall be regarded before approval of the plans.
Consent from the National Environment Management Authority (NEMA) must be sought before
embarking on construction. Since the construction will adversely affect the environment of the
area through air pollution and noise that will emanate from the construction, it is important that
this consent be sought.
Emerald Construction Limited must seek consent from its members. The members of that
company will approve such plans through an ordinary resolution that must have at least 51% of
the vote.
The company must seek consent from the National Land Commission. The Land is situated in
Nairobi County thus it is leasehold. The government is a lessor while the company is a lessee
hence it must obtain consent from the Commission before they start construction.

CONCLUSION
Emerald Company has recently acquired two parcels of land that border each other. It has the
intention of combining the parcels of land. Thus, it has to go to apply to the Registrar for
amalgamation under Section 22 of the Land Registration Act. It will result to a new register
being opened and a new Certificate of Title being issued to the proprietor. It is crucial that the
company has sought approval for the construction from its members through an ordinary
resolution.
After amalgamation of the parcels, various documents must be sought to ensure the smooth
process of building the Office Block. They include: rate clearance certificate, rent clearance
certificate, water bill clearance receipts. Consent from NEMA and Local Authority is essential.
The County Government will approve the development plans. It will also ensure that the plot of
land is not under any road reserve and is within the Urban Development Plan.
Once the process above is adhered to, the construction of the office block will kick off without a
hitch.

Yours Faithfully,

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Derek Mwoma
(Advocate for Smart & Sharp Associates)
CAR PARKING LICENCE

THIS LICENCE is made on this………….day of ………….two thousand and eighteen

BETWEEN:

EMARALD CONSTRUCTION LIMITED a limited liability company incorporated in the

Republic of Kenya having its registered office at Nairobi in the said Republic of Post Office Box
Number 45181 – 00100 (hereinafter “theLicensor”) of the one part.

AND

Nabil Suki of Post Office Box Number 40987- 00100 Nairobi (hereinafter “the Licensee”) of
the other part.

WHEREAS
1. The Licensor is the registered owner of two adjoining parcels of land being Land
Reference Number L.R 209/12345 and L.R 209/12346 each measuring 3 acres situated
in Upper Hill.
2. The licensor shall erect the “EMERALD BUILDING” (hereinafter “the Building”) on
ALL THAT piece of land, which building shall contain a four (4) levels basement
parking (hereinafter “the Parking Area”).
3. The Licensee has requested the Licensor to grant him a right to use the car parking
facilities situate within the Building.
4. The Licensor has agreed to give such right on terms and conditions hereinafter contained.

NOW THIS LICENCE WITNESSETH as follows:

1. In this Licence where the context so admits:

i. The expression “the Licensor” shall include its successors in title and assigns.

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 ii. The expression “the Licensee” where such Licensee is not a limited liability
company or other body corporate shall include personal representatives and
assigns and where the Licensee is a limited liability company or other body
corporate shall include its successors and assigns.
iii. The expression “Parking Area” shall include the bay or bays numbered and as
shown on the sketch plan annexed hereto or such other bays within the Parking
Area as the Licensor may from time to time in its absolute discretion designate
provided that the Licensee gets a minimum of twenty four (24) hour notice
thereof.
iv. The expression “the authorized motor vehicle” shall include any motor vehicle
or vehicles belonging to the Licensee which have been authorized by the Licensor
or its agents to use the Parking Area.
v. The expression “working days” shall include all the time between Monday to
Friday between the hours of 0800hrs and 1700hrs
vi. Words importing the singular number only includes the plural number and vice
versa where there are two or more persons included in the expression. Covenants
and agreements expressed to be made by the Licensee shall be deemed to be made
by such persons jointly and severally and any default or omission by the Licensee
shall be deemed to mean any act default or omission by any one or more of such
persons.

2. The Licensor hereby grants the Licensee a License for the use of the designated bay of
Parking Area marked “Reserved NS” andsuch other car parking bays as the Licensor
may at any time or from time to time designate in writing commencing on the …….day
of ………………..20……
3. The Licensee hereby undertakes to make the following payments to the Licensor or its
agents when due or when required to do so:
i. A monthly fee of Ksh. 10, 500 inclusive of Value Added Tax (VAT);
ii. A refundable deposit of three (3) months being Ksh. 31 500 payable upfront on or
before the execution of this license agreement.

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 4. The Parking Area License fees (hereinafter “the Fees”) shall be paid in equal monthly
payments by cheque on the first day of every month without any deductions whatsoever.
However, the Licensee may make necessary deductions as may be authorized by any
statutory enactment for the time being in force provided that evidence of the statutory
enactment is brought to the attention of the Licensor within five (5) working days.
5. The Licensee with the intent that the obligations hereinafter set out may continue
throughout the term covenants and undertakes:-
i. To pay the Fees at the time and in the manner aforesaid clear of all deductions
whatsoever subject to clause 4 above.
ii. To adhere to all guidelines by the management on the use of the Parking Area at
all times.
iii. To park only at the designated parking bay marked “Reserved NS” subject to
clause 2.
iv. Not to obstruct or permit the obstruction of any service road or other means of
access to the Parking Area.
v. Not to park any authorized motor vehicle in any place other than in the designated
Bay and in particular not to park in any of the parking areas specially designated
for visitors only PROVIDED HOWEVER that the Licensor may in its discretion
direct the Licensee to park anywhere in the Parking Area.
vi. Not to wash or permit to be washed any authorized motor vehicle on the Parking
Area.
vii. Not to cause damage to any part of the Parking Area and in the event of any
damage being caused by the Licensee or any employee or servant of the Licensee
to make good the same at his expense to the reasonable satisfaction of the
Licensor.
viii. Not to obstruct or permit the obstruction of any car park attendant or security
attendant employed by the Licensor in the performance of duty.
ix. At all times to comply with all lawful directions as to the parking or other
movements of the authorized motor vehicle which may be given by any car park
attendant or security attendant employed by the Licensor.

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 x. Not to assign underlet or otherwise part with the possession of the Designated
Bay.
xi. Not to use or permit the use of the Designated Bay for any purpose other than for
the parking of one authorized motor vehicle in each bay AND NOT to use or
permit the Designated Bay to be used for the purpose of loading or offloading
anything or any equipment into or from any vehicle whatsoever without the prior
written consent of the Licensor.
xii. Not to do or permit to be done any act within the Parking Area which may be or
cause a nuisance discomfort or annoyance to the Licensor or any licensee of the
Licensor.
xiii. Not to take into or keep in or upon the Parking Area any motor fuel or any
otherwise flammable substances other than that kept in the fuel tank and engine of
the Authorized motor vehicle.
xiv. To take all proper and reasonable precautions against fire and to indemnify and
keep indemnified the Licensor for any loss or damage suffered by it or by any
person using the Parking Area consequent upon any fire however occurring and
attributable to the failure of the Licensee or the Licensee’s servants, agents and/or
invitees to take such precautions as aforesaid.
xv. To pay interest on all sums payable under the License which are more than three
(3) working days in arrears at the rate of two per cent (2%) per day from the
date when such sums become due and payable until payment in full.
xvi. To foot all the costs charges and expenses of and incidental to the preparation and
completion of this license in duplicate including all Advocate’s charges, value
added tax, stamp duties and other disbursements.

6. The Licensor to the intent that the obligations hereinafter set out may continue
throughout the continuance of the said term covenants and undertakes:-
i. To ensure the quiet and peaceful use and enjoyment of the parking area by the
Licensee.
ii. To maintain and at all times put the parking area in a state fit for the use and
enjoyment by the Licensee.

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 iii. To deal with all complaints by the Licensee within a reasonable time.

PROVIDED THAT ALWAYS AND IT IS HEREBY AGREED THAT:

7. The Licensor reserves the right to terminate this license agreement subject to a twenty
one (21) day notice to the Licensee.
8. Any dispute arising under this License agreement shall first be subjected to negotiation
by the parties and later to arbitration before recourse to resolution by court.
IN WITNESS WHEREOF the Licensor has caused its Common Seal to be affixed and the
Licensee has hereunto set his signature the day and year first hereinbefore written.

SEALED with Common Seal of the )

Licensor in the presence of: - )

Director ) ………………………………

Director/Secretary ) ………………………………

I CERTIFY that ……………………….. and …………………….being Directors/ Director and

Secretary of EMERALD CONSTRUCTION LIMITED appeared before me on the
……………. day of …………………… 20……and (being known to me) acknowledged the
above signatures or marks to be theirs understood the content of this instrument, freely and
voluntarily it.
Signature of Witness:

Name:

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SIGNED by NABIL SUKI the )

Licensee in the presence of: - ) …………………………………

) Licensee

ADVOCATE )

I CERTIFY that ………………………….. appeared before me on the ……………. day of

…………………… 20……and (being known to me) acknowledged the above signatures or
marks to be theirs understood the content of this instrument, freely and voluntarily it.
Signature of Witness:

Name:

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AGREEMENT FOR THE SALE OF LAND
THIS AGREEMENT is made the 5th day of July 2018

BETWEEN

EMERALD CONSTRUCTION LIMITED (THE SELLER) of P.O. BOX 194-0100, AND

GIANPERO MASCOLINI (THE BUYER) of P.O. BOX 8474-0100

WHEREAS

The Vendor is the registered proprietor of ALL THAT

(Herein after referred to as “the property”)

The Vendor is willing to sell and the Buyer is willing to buy the said property at a consideration
of Ksh. 45 MILLION (FORTY FIVE MILLION KENYA SHILLINGS) free from all
encumbrances.

NOW IT IS HEREBY AGREED as follows:-

1. In this agreement:-
The following words and expressions (save where the context requires otherwise) bear
the following meanings:-
“The purchase price” Means the sum of the deposit and the balance payable on the
completion date.
“The Seller’s advocate” Means the advocate of the High Court of Kenya having conduct
of this agreement on the behalf of the vendor herein i.e. (MESSRS C20 and Company
Advocates LLP).
“The buyer’s advocate” Means the advocate of the High Court of Kenya having
conduct of this agreement on the behalf of the buyer herein.
“The transfer” Means the transfer of the vendor’s right, title and interest in the property
to the Buyer or Buyer’s nominee in the form acceptable to the Buyer;

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 “Reasonable time” shall be interpreted accordingly taking into account the surrounding
circumstances and with due regard to the fact that the construction shall take quite some
time; but the surrounding circumstances shall not include extrinsic factors.
1.1 Words importing a singular meaning where the context so admits include the plural
meaning and vice versa.
1.2 Where the context so admits, the expressions “the vendor” and “the buyer” includes
the respective personal representatives, nominees and assignees of the Vendor and
the Buyer.
2. AGREEMENT FOR SALE AND INTEREST SOLD
2.1 The Vendor has agreed to sell and the Buyer has agreed to purchase the property at
the Purchase Price.
2.2. The interest sold is Apartment A1…erected on L.R. No. 12345 to be amalgamated
with L.R. No. 12346.
3. PURCHASE PRICE AND DEPOSIT
3.1 The Buyer shall upon execution of this agreement pay a deposit in the sum of Kenya
Shillings Eleven Million, Two Hundred and Fifty Thousand (11,250,000/=) to the
Seller’s advocate to held by “advocate as a stakeholder” pending completion.
3.2 The balance of the purchase price shall be Kenya Shillings Thirty Three Million,
Seven Hundred and Fifty Thousand (33,750,000/=) and shall be paid directly to the
Vendor’s Advocates on the completion date.
4. THE PROPERTY IS SOLD SUBJECT TO:
4.1. The covenants, terms, conditions, stipulations, restrictions and rights as provided and
reserved in the lease;
4.2. All subsisting easements, quasi-easements, and rights of way, (if any)
4.3. Any provisional liability or assessment for road or sewerage charges
BUT
Is otherwise, free of charge or encumbrance.
5. COMPLETION
5.1 The Completion Date shall be 14 days after the issue of a Certificate of Occupation,
following issuance of a Certificate of Practical Completion.

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 5.2 On the completion date, the vendor’s advocate shall, in exchange for the purchase
price deliver to the buyer’s advocate the following completion documents:
i. Original Certificate of Incorporation of the Company
ii. Original Certificate of Title of the property
iii. CGT declaration forms (what is the name)
iv. Copies of IDs, Passport size photos and duly certified personal KRA
PIN Certificates of 2 directors
v. Duly certified Certificate of Incorporation of the Company.
vi. Duly certified Kenya Revenue Authority PIN Certificate of the
Company
vii. National Land Commission Consent
viii. Change of user (what is the document’s name)
ix. Valid rent clearance certificate
x. Valid rates clearance certificate
xi. Duly executed undated transfer forms (in triplicate) in favour of the
buyer or his nominees.
xii. Duly executed discharge of the charge.
xiii. Any other document necessary to effect the transfer in favour of the
buyer.
6. POSSESSION
6.1 Upon payment of the full purchase price, the buyer may take vacant possession of the
property.
6.2 The buyer shall enjoy quiet possession of the property.
6.3 The property shall be sold off-plan.
7. BREACH OF THE AGREEMENT BY EITHER PARTY
7.1 In case either party hereto is apprehensive that they may fail to meet an obligation on
time, such a party may seek indulgence of the other party so that they are given
additional time to comply.
7.2 Upon request of the buyer, the seller retains discretion to either extend time for
completion or to rescind the agreement.

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 7.3 Failure to complete the agreement within a reasonable time shall entitle the buyer to
the remedy of restitution (basically the advocate for the seller shall refund the deposit
with interest at the rate of 5% per annum)
7.4 Failure to comply with a term of this agreement shall give the injured party discretion
to file a claim in the form of arbitration proceedings.
7.5 The procedural and substantive law applicable in the Arbitration proceedings shall be
Kenyan law.
8. THE BUYER SHALL HAVE THE RIGHT
8.1 To be handed an original copy of this agreement.
8.2 To forfeit the deposit in case the contract isn’t completed within a reasonable time.
8.3 To enjoy quiet possession from the date of possession mentioned hereinabove.
8.4 To inspect the progress of development on said property from time to time on the
condition that he notifies the seller 12 hours prior to that.
8.5 To be allotted a share in the management company proportionate to the units
9. MANAGEMENT COMPANY
9.1 The seller shall form a management company to run the affairs of the whole
apartment and transfer its reversionary interest to the company within ninety (90)
days of the last leases being registered to the respective purchaser of the houses in the
development.
9.2 The seller shall transfer shares in the management company on a pro-rata basis
pegged on the number of units purchased by the buyer upon registration of the lease
in favour of the lease in favour of the buyer.
9.3 The seller herein covenants that it shall do all things required to ensure the
reversionary interest is transferred to the management company within the said 90-
day period subject to the buyer paying his respective share of the cost.
10. LAW SOCIETY CONDITIONS OF SALE
The Law Society Conditions of Sale (2015 edition) shall in so far as they are not varied
by or are inconsistent with the terms of agreement herein be deemed to apply as part of
the terms in this Agreement.
11. TRANSFER

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 11.1 The advocate for the seller shall do all the things necessary to ensure the property
is transferred and subsequently registered in the name of the buyer.
11.2 To enable the advocate for the seller to undertake the above, the advocate for the
buyer shall return the completion documents to the advocate for the seller within 7
days of receipt of all of them for purposes of transfer and registration. For avoidance
of doubt, the date of receipt is the completion date.
12. COSTS OF THE ADVOCATES
12.1 Each party shall pay the legal charges of their own advocate of and incidental to
the preparation and completion of this Agreement and Transfer of the seller’s right,
title and interest subject to;
12.2 The advocate for the buyer shall pay the Advocate for the seller
‘handlingcharges’ as payment for executing the transfer and subsequent registration
of the property in the name of the buyer.
12.3 The exact amount of money to be paid in the form of handling charges shall be as
per the Advocates Remuneration Order 2014 edition.
13. STATUTORY PAYMENTS
13.1 Stamp duty shall be paid by the buyer
13.2 Capital Gains Tax shall be declared by the seller

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

GIANPERO MASCOLINI; BUYER ……………………..

EMERALD CONSTRUCTION COMPANY LIMITED; SELLER…………………….

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