The bone of contention between parties when selling or purchasing any
piece of land is to whom the Purchase Price (deposit and/or balance)
shall be paid pending transfer of the property into the purchaser’s
name.
A vendor’s main concern is to ensure that transfer of title to the
purchaser does not commence without proof of readily available funds to
settle the purchase price, while a purchaser’s main concern is to ensure
that the purchase price does not fall into the hands of the vendor,
before transfer of title takes place. The role of a stakeholder is
critical in addressing these concerns.
Who or what is a stakeholder?
A stakeholder is a person whose duty is to hold money in his hands
not for one or other of the parties (vendor or purchaser) to a
transaction, but for both, until some event occurs upon the happening of
which it becomes his duty to hand over the money to one or other of the
parties, [for example] to the vendor if the sale goes through or to the
purchaser if it does not. Pending that event, he must hold onto the
money and must not release it to any of the parties without the consent
of the other or as per the terms of the agreement.
It is clear, therefore, that an advocate, as stakeholder for both vendor
and purchaser, cannot pay the money to either party until the contract
proceeds to completion, or it comes to an end through rescission or
otherwise, or the deposit is forfeited by the vendor in accordance with
the terms of the agreement.
A stakeholder is almost like a middleman because he holds the money for
both parties. It is common practice to have the deposit paid to the
vendor’s Advocate in their capacity either of agent for the vendor or
stakeholder. In either case the money is the client’s money and must be
placed in a client account. An advocate who holds a deposit as
stakeholder is obliged to pay it over to a new stakeholder if he is
instructed by both the vendor and the purchaser.
This position is disadvantageous for the vendor, who cannot use the
money without permission from the purchaser. But it is advantageous for
the purchaser who can be assured that the money is safe in the hands of
the conveyancing solicitor and can be recovered in the event of a
vendor’s default.
Legal Provisions
The Land Act and The Land Registration Act do not make provision for
the holding of any amount payable towards the purchase price on
stakeholder basis. The Law Society Conditions of Sale 1989 edition
however makes provisions for how the deposit and balance of the purchase
price should be held.
The Law Society Conditions of Sale (the Conditions”) are a creature of
the Law Society of Kenya. They were introduced mainly to aid in the
conveyancing process by giving a guide that lawyers can use when
drafting contracts for the sale and purchase of land. The conditions
however can be specifically included or excluded from the contract as
parties deem. Being a guideline parties can utilize the conditions to
draft a contract for sale and purchase.
Condition 3 states that “The purchaser shall, on or before entering into
the contract, pay to the vendor’s advocate or the estate agent
negotiating the sale on behalf of the vendor as stakeholder such a sum
as will, together with any preliminary deposit paid to the vendor or
such agent, amount to ten (10) per centum of the purchase money
(excluding any separate price to be paid for moveables, livestock,
chattels, fittings and other separate items).”
Condition 4(b) goes further to describe how the balance of the purchase
price shall be paid and how it shall be treated. It states that “upon
completion, the purchaser shall pay the purchase money to the vendor’s
advocate who shall hold the same as stakeholder until registration of
the conveyance.”
It is noteworthy that the above mentioned Law Society Conditions of
Sale 1989 edition are in the process of being amended. The proposed Law
Society Conditions of Sale 2015 provided under condition 5.2.1 state
that the Purchase Price or any part thereof including the deposit is to
be held by the vendor’s Advocate or auctioneer (in the case of auctions)
as stakeholder and if demanded by any party in an interest earning
account and the principal and Accrued Interest will be dealt with in the
manner set out in the conditions and the agreement. It is clear that
the proposed conditions and the 1989 conditions provide for the same
thing and that is to hold the purchase price on stakeholder basis.
Disclaimer: This article has been prepared for informational
purposes only and does not constitute legal advice. This information is
not intended to create, and receipt of it does not constitute, a
lawyer-client relationship. Nothing in this article is intended to
guaranty, warrant, or predict the outcome of a particular case and
should not be construed as such a guaranty, warranty, or prediction. The
authors are not responsible for any actions (or lack thereof) taken as a
result of relying on or in any way using information contained in this
article and in no event shall they be liable for any damages resulting
from reliance on or use of this information. Readers should take
specific advice from a qualified professional when dealing with specific
situations.