CONSENT

One of the most important requirements in the process of transferring of property is the
obtaining of consent. This process is done so as to ensure that transaction is concluded in an
orderly and transparent manner.

According to Section 23 (a) of the Community Land Act, “registered community land may,
subject to the approval of the registered community, be converted to private land through
transfer.”1 This means that it is only after the land at Imbiriakan Area has been registered that
the Mbirikani Community can give its consent approval to transfer the land. The transfer of
the property to CDS will be successful only if this condition is met.

Consent does not necessarily have to be sought or obtained from the whole Mbirikani
Community, two thirds of them will suffice. Section 21 (2) of the same provision provides
that “a registered community shall, before the conversion of the community land into any
other category of land, which includes private land, seek and obtain approval from two thirds
of assembly in a special meeting for that purpose.”2

It is worth noting that under Regulation 16 (1) of the Community Land Regulations, that a
community may convert whole or part of its land to a private land through transfer with the
approval of at least two thirds of the community assembly.3
It is therefore important for CDS to obtain the necessary consent in order for the transaction
to be successful. This provision meets the desire of CDS to acquire a piece of land within
Imbiriakan area but consent of at least two thirds of the community assembly has to be
obtained.

STAMP DUTY
According to the Black’s Law Dictionary, a stamp duty is a tax raised by requiring stamps
sold by the government to be affixed to the designated documents, thus forming part of the
perpetual revenue.4 This is therefore one of the cost implications in conveyancing that a
person is likely to incur when purchasing a property.

1
Community Land Act 2016, s 23 (a)
2
Ibid, 21 (2)
3
Community Land Regulations 2017, L.N. 180/2018
4
Black’s Law Dictionary (8th edn, 2004) 4397
Section 5 of the Stamp Duty Act provides that every instrument relating to property in
Kenya that has been stated in the Schedule of the Act and is not subject to the exemptions
contained in it, to obtain stamp duty.5 According to section 6 of the Act, payment of the
stamp duty is to be made within 30 days of the execution of the documents.6 Consequently,
CDS will be expected to pay the stamp duty within thirty days of the execution of the
documents in order for the transaction to be complete.

It is important to know that the property value is not necessarily the same as the value in the
Sale Agreement. Property value is the valuation that the Government Valuer allocates on the
land. Section 10A of the Stamp Duty Act provides that the Collector of the stamp duties
shall refer the property to the Chief Government Valuer to determine the true open market
value of such property.7

In the event that the payment of stamp duty is paid out of time, section 20 of the Act provides
a penalty the purchaser is likely to incur for the whole period they fail to pay for the stamp.
The penalty is one shilling in respect of every twenty shillings and of any fractional part of
twenty shillings of the duty chargeable in each quarter of the year.8 This means that if CDS
fails to pay the stamp duty within the period it is expected to, it will therefore pay the penalty
for all the times it did not pay the stamp duty.

It is a criminal offence for one to pay the required stamp duty, which is equivalent to evasion
of tax.Section 113 of Stamp Duty Act provides that any person who evades paying of stamp
duty is guilty of an offence and is therefore liable to imprisonment for a term not exceeding
one year or to a fine not exceeding one hundred thousand shillings, or both.9
Section 46 of the Land Registration Act also touches on failure to stamp the documents by
saying that an instrument required by law to be stamped shall not be accepted for registration
unless it is stamped in accordance of the Stamp Duty Act.10

5
Stamp Duty Act 1982, s 5
6
Ibid 6
7
Ibid 10A
8
Ibid 20
9
Ibid 113
10
Land Registration Act 2012, s 46
Stamp duty is can either be fixed or ad valorem, that is, it is proportionate to the estimated
value of the property and is done at the statutory rate.11 If a property is located within a
municipality or in the urban areas, the stamp duty will be 4% of the property value. Whereas
for agricultural land, the stamp duty is 2 %of the property value. If it is a leasehold, which is
less than three years, the stamp duty will be 1 % of the rent, while for a period of over three
years it will be 2 %.12
Subsequently, since Kajiado County is a municipality, then CDS will be expected to pay
stamp duty at the rate of 4 % of the land that it seeks to purchase.

PROCEDURE FOR PAYMENT OF STAMP DUTY

 The Applicant, in this case CDS, should present the document to the Valuer for
assessment or valuation. This is done through filling of a form known as Form SD1.
 The Valuer will then confirm if the duty is payable, counterchecks the information on
the form and the document presented by CDS, ascertains both the Form and
document.
 Visit the KRA Website and generate Payment Registration Number (PRN) Form on
itax platform.
 Payment is then paid to a KRA appointed bank where an acknowledgement slip is
issued after the payment.
 The next step is to present the copies of the payment and banking slips for
confirmation of payment.
 After confirmation, presents the legal instruments for franking.
 CDS will then collect the franked documents to be presented for registration.13

11
Stamp Duty Act 1982, s 9
12
NW Realite, ‘Stamp Duty Rates In Kenya’ [online] Available at: <https://www.nwrealite.co.ke/stamp-duty-
rates-in-kenya/> [Accessed 1 July 2020].
13
Kra.go.ke. 2020. Filing & Paying Taxes - KRA. [online] Available at:
<https://www.kra.go.ke/en/business/companies-partnerships/companies-partnerships-pin-taxes/companies-
partnerships-file-pay> [Accessed 1 July 2020].