KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME (ATP) ACADEMIC YEAR 2024/2025

ASSIGNMENT ATP 107 CONVEYANCING

COURSE INSTRUCTOR: MR. KIBET SANG

CLASS B FIRM 18
 CLASS B – FIRM 18

LIST OF MEMBERS

NAME REGISTRATION NUMBER

KADZA THERESA KEBONG’O 20240019

GICHERU PATRICIA 20240063

KHABONGO BILL 20241897

KIKUYU MARY 20241372

MUTUA DANIEL 20240972

NYAGAH KENDI 20240073

OMWENGA PAULA 20241474

ONDIEKI LINDA 20241729

PATEL SHWETA 20240560

RUTO JEPKOSGEI 20240144

COMPLETION
When a valid sale agreement has been prepared and executed, the step that follows is
Completion.1 The sale agreement is merely executory and it gives no interest. It will only give
you an interest when you are able to complete as the purchaser (Specific performance) and
2
vendor (forfeiture). It can be said to be the process in a conveyancing transaction where
necessary documents are handed over in exchange for the price. The vendor completes by
handing over possession while the purchaser completes by giving the balance of consideration.
Regulation 2 of Law society of Kenya conditions of Sale and agreement for sale defines
Completion as the act of completing the sale of the Property for consideration pursuant to the
Agreement by parties 3 and includes:
a) Process of transferring (by registration or otherwise) the interest or estate in the Property
to the Purchaser;
b) The granting of legal possession of the Property to the Purchaser;
c) Settlement of utilities bills and transfer of utilities accounts; and
d) Apportionment of outgoings between the vendor and the purchaser.
This is the final chain of conveyancing. The Vendor completes by giving the purchaser all the
registrable documents plus possession and the Purchaser completed by giving the vendor the
balance of the purchase price. Buyer’s advocate should ensure that pre-completion searches as
are relevant to the transaction are carried out, and that the results are satisfactory to the client.
The main reason for making the search is for the buyer’s advocate to confirm that information
obtained about the property before exchange is correct and verifiable. 4
Date of completion
Condition 8 of LSK conditions of sale defines Completion Date as the date specified in the
Agreement, failing which, the ninetieth day (90th day) after the date of the Agreement. 5 The
date may be agreed expressly by the parties and inserted in the contract. When it is an open
contract (one that only states parties, price and property) or the date is not stated in the
agreement the completion ought to take place within a reasonable period of time. 6As an
1
The Law Society of Kenya Conditions of Sales and Agreement for Sale Layout, 2015(hereinafter referred to as
LSK Conditions of Sale) Condition 7.
2
Tom Ojienda, Principles of Conveyancing in Kenya: A Practical Approach Law Kenya (2007).
3
The Law Society of Kenya Conditions of Sales and Agreement for Sale Layout, 2015
4
Elizabeth Cooke, Land Law (2012)
5
http://www.kenyalawresourcecenter.org/2011/07/conveyancing-law-and-practice.
6
See supra n.5.
Advocate it is thus your duty to ensure that you get a proper time frame estimated before you
agree to or insert a completion date. Otherwise you will always be held to your bargain and the
repercussions can be disastrous. However, the completion date or period, if there is any delay,
may be mutually extended.
“Time is of the essence” clauses
Where the parties provide that the “time is of the essence” then the completion date must be
strictly adhered to and failure to complete in such a case will be deemed a fundamental breach of
contract both at law and equity. The party at fault will not enforce the contract specifically but
the other party is free to pursue his remedies for breach of contract including specific
performance. The aggrieved party may elect to rescind the contract the very next date if he
chooses. 7
Ordinarily, time is only regarded as of the essence if the parties make it express term in the
contract. However, the courts, at least in England have not hesitated to make time of the essence
by necessary implication. In Barclay vs Messenger, Contract provided that if the Purchaser
should fail to pay the balance of the purchase price on a given date, the agreement would become
null and void. Sir George Jessel held that time was of the essence stating obiter that he did “not
know how making time of the essence could have been more strongly expressed.” 8
In the Kenyan, in the case of Sagoo vs Dourado9, The Court of Appeal however held that time
will not be considered to be of the essence in any contract unless;
i. Parties expressly stipulate that conditions as to time must be strictly complied with
ii. Nature of the subject matter show that time should be of the essence
iii. A party subjected to unreasonable delay gives notice to the other making time of the essence.
Completion period
This is the interim period between the execution of the contract and completion. It allows for the
performance of the contractual obligations stipulated in the sale of land agreement to ensure
proper transfer of property.

Contractual date

7
Ojienda T & Juma Katarina, Professional Ethics, A Kenyan Perspective, 2011
8
Barclay vs Messenger [1989] 3 All E.R. 492
9
Sagoo vs Dourado 1983 KLR 365
It refers to the time of signing (execution) the sale of land agreement after negotiations of terms
of the contract.
Completion notice

Under an open contract, if one of the parties fails to complete on time (time not being initially of
the essence) the other party can serve notice to complete by a specified date. Service of a notice
makes time of the essence for both parties; so that if either party then fails to complete by the
specified date, the other can treat the contract as discharged and claim damages.
A completion notice can be issued by a party who is ready and willing to finalize the transaction,
typically requesting the other party to fulfill payment within 21 days upon receiving the notice.
It's crucial for the party issuing the notice to be fully prepared and capable of completing their
part. Following the contractual completion date, a completion notice must be issued.
Subsequently, after twenty-one (21) days, the other party (not in breach) has the option to cancel
the contract.
When receiving instructions, it is imperative to gather details regarding the completion date. The
contractual completion date must be definitively determined, as it serves as a pivotal moment in
the transaction, acting as the benchmark for determining any breaches or defaults by either party.
Parties have the option to include a provision for a completion notice. If one party defaults on or
before the completion date, the other party gains the right to rescind the contract, as previously
mentioned. Legal action on the contract is not permissible before the contractual completion date
expires.
For a notice to be valid, the following conditions must be satisfied:
● The server must herself be ready, able and willing to complete.
● You must limit the time of performance.
● The period given by the notice must be reasonable in all the circumstances.
● The notice must not be ambiguous and must make clear what is required.
● The notice must demand performance of the contract.
● The notice must be served on either the party or their advocate.
● The notice must not be premature. Only issued when the other party defaults.
Under Clause 4(7) of the Law Society of Kenya Conditions of Sale, a vendor who is ready, able
and willing to complete the sale and is aggrieved by the purchaser’s default to complete the
contract within the completion period is required to issue a twenty-one days’ notice requiring the
purchaser to complete the contract. Clause 4(7) provides thus;
4(7) This sub-condition applies unless a special condition provides that time is of the essence in
respect of the completion date:
a. In this condition “completion notice” means a notice served in accordance with this sub-
condition;
b. If the sale shall not be completed on the completion date, either party (being then himself
ready, able and willing to complete) may after that date serve on the other party notice to
complete the transaction in accordance with this sub condition. A party shall be deemed to be
ready, able and willing to complete:
i. If he could be so but for some default or omission of the other party;
ii. Notwithstanding that any mortgage on the property is unredeemed when the completion notice
is served, if the aggregate of all sums necessary to redeem all such mortgages (to the extent that
they relate to the property) does not exceed the sum payable on completion.
c. Upon service of the completion notice it shall become a term of the contract that the
transaction shall be completed within twenty-one (21) days of service and, in respect of such
period, time shall be of the essence of the contract.
d. If the purchaser does not comply with a completion notice:
i. The purchaser shall forthwith return all documents delivered to him by the vendor and at his
own expense procure the cancellation of any entry relating to the contract in any register;
ii. Without prejudice to any other rights or remedies available to him, the vendor may forfeit and
retain any deposit paid and/or resell the property by auction, tender or private treaty.

In Elijah Kipkorir Barmatel & another vs John Kiplagat Chemweno & 3 others (2010) eKLR the
court held a notice must be served on the defaulting party before any assertion can be made that
time was of essence.
In Sisto Wambugu vs Kamau Njuguna (1983) eKLR the court held contracts for sale of land gives
the vendor the right to rescind the sale if the purchaser does not pay on the appointed day after
giving a reasonable notice to the defaulting party making time of essence.
In Kent Libiso & Anor v Cirkon Trust Co. Limited & Anor [2008] eKLR it was held that a
completion notice issued before the completion date was of no legal effect.
 ROSS KEATING & CO. ADVOCATES
ADVOCATES, COMMISSIONER FOR OATHS & NOTARY PUBLIC

Our Ref: RS/J2/2023 12th of February 2023

Your Ref: TBA

TO: MUTYO & COMPANY ADVOCATES

PIONEER HOUSE, 4TH FLOOR
MOI AVENUE
P.O BOX 1234-20100
NAIROBI

Dear Sir,
RE: NOTICE TO COMPLETE PURCHASE OF TITLE NUMBER
KAREN/KAREN/90876

WE, ROSS KEATING & CO. ADVOCATES, as advocates for and on behalf of Janeen Cullen
of I.D Number 23421568 and of care of P.O. Box 103, Karen (the “Vendor”) hereby give your
client Nixon Samba of ID Number 15523416 and of care of P.O BOX 1234, Nairobi(the
“Purchaser”) notice pursuant to the Agreement for Sale between the Vendor and Purchaser
therein (the “Agreement”), and clause 10.1 as follows:
THAT the Vendor, in accordance with the provisions of the Agreement is ready, able and willing
to complete the sale of ALL THAT piece of land known as Title Number Karen/Karen 90876
(hereinafter the “Property”)

THAT the Purchaser has defaulted in complying with your obligations under the Agreement in
that:
1.1 The Purchaser has failed to provide the Vendor with the Balance of the Purchase Price in the
sum of 10,000,000 Kenyan Shillings.
1.2 THAT the Purchaser is hereby required to make good such default by completing the
purchase of the Property , in accordance with the provisions of the Agreement , before the
expiration of Twenty One (21)days from the date of service this notice, failure to comply
with this notice within the time aforesaid the Vendor shall be entitled to enforce the rights
powers and remedies conferred upon by the law.
Yours Faithfully,
ROSS KEATING & CO. ADVOCATES
 MUTYO & CO. ADVOCATES
ADVOCATES, COMMISSIONER FOR OATHS & NOTARY PUBLIC
Our Ref: CO/M/0777 13 February 2023
Your Ref: RS/J2/2023

TO: ROSS KEATING & CO. ADVOCATES

PIONEER HOUSE, 3RD FLOOR
MOI AVENUE
P.O BOX 5678-10200
NAIROBI

Dear Sir,
RE: NOTICE TO COMPLETE TRANSFER OF LAND TITLE NUMBER
KAREN/KAREN/90876
WE, MUTYO & CO. ADVOCATES, as advocates for and on behalf of Nixon Samba of ID
Number 15523416 and of care of P.O. Box 104, Karen (the “Purchaser”) hereby give your client
Janeen Cullen of I.D Number 23421568 and of care of P.O. Box 103, Karen (the “Vendor”)
notice pursuant to the Agreement for Sale between the Vendor and Purchaser therein (the
“Agreement”), and clause 9.1 as follows:

THAT the Purchaser, in accordance with the provisions of this agreement has fully settled the
sum of Kshs. 10,000,000 and fulfilled all obligations necessary to complete the sale of ALL
THAT piece of land known as Title Number Karen/Karen/90876 (hereinafter the “Property”)

THAT the Vendor has defaulted in complying with the obligations under the agreement that:

1.1 The Vendor has failed to transfer the Property to the purchaser even after the payment has
been settled.
1.2 THAT the Vendor is hereby required to make good such default by completing the transfer
process of the Property in accordance with the Agreement before the expiration of Twenty
One (21) days from the date of service of this notice. Failure to comply with this notice
within the time aforesaid, the Purchaser shall be entitled to enforce the rights, powers and
remedies conferred upon the law.

Yours Faithfully,
MUTYO & CO. ADVOCATES