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Due Diligence

On this particular Saturday morning sometimes in 2008, my partner Paul and I met one of our brokers who showed us a very nice piece of land in Ruiru off the Eastern bypass. It was approximately 2km from the junction of Thika Road and Eastern bypass towards Ruai, third row from the tarmac. The site was wonderful but we have since learnt not to be so excited by the aesthetics of a shamba. The shamba was up for sale and the good thing is that the broker knew the owner at a personal level.

We expressed interest to acquire it and decided to carry out due diligence. The 1.25 acre shambas in Ruiru were originally owned by shareholders of Githunguri ranching company. The first thing we do is to check on the survey maps to confirm that the ground we are being shown and the title number as seen on the map adds up. We then check the original owner from the records of Githunguri coz the company still exists. It is easier to trace the original owner and any subsequent transfers of title in Thika. For this particular shamba the story went that the original owner (an old lady) had given the son the land as a gift but the son had never transferred the title in his name. It was thus easy to confirm coz the title was still in the name of the original owner. After that confirmation, we carried out an official search at Thika and confirmed the records. When we finally met the son, we negotiated the price further and agreed. However, we insisted that the son takes us to the mother, who in actual sense was the proprietor. We drove all the way to Githunguri and met the old lady at her home. She actually confirmed the story and agreed to appear before a lawyer and sign the agreement and any other document.

We normally demand that the Vendor must have all the completion documents including the consent to transfer. On the day of signing the deal, we met the Vendor and insisted that we go to the site first so that we are shown the beacons before we enter into an agreement and pay 10% deposit. When we landed at the site, we got the shock of our lives. We found fresh subdivision beacons on the land. In my estimation, the land must have been beaconed the day before. You can imagine the reaction of the Vendor. He was tongue tied, speechless ama aliona na mdomo… Of course the deal never proceeded but I advised the old lady to carry out investigations and establish what could have happened.

A week later, I met our broker and he told me what exactly had happened. The land in question had been on sale for like 6 months or so. The original broker in charge of the sale had circulated copies of its title to so many other brokers. The guy had also narrated the story to other brokers of how the son had acquired the land from the mother as a gift and the fact that the son had never executed the transfer. Crooked fellows just did another title (similar to the copy they had accessed) and the ID in the name of the old lady. When a prospective purchaser got wind of that the land was on sale and the guy was given the story behind the ownership he decided to purchase. When the prospective purchaser did a search in Thika, the title was clean and in the name of the old lady. Little did he know that the purported vendor was an old lady whom the crooks just hired and one of the crooks posed as the son and the vendor was convinced that the story added up. So he paid for the deal in cash and received the fake title, consent to transfer, passports and copies of the fake ID and fake PIN. So the guy decided to physically subdivide the land as he awaited the transfer to go through. It was shock on him…. He was suckered and lost a whopping 2.5M.

Basically, I’d also think we survived by a whisker though we were dealing with the real owner but the prospects of a court case chasing our hard earned cash was not anything we’d have wanted. But again you may wonder what error of omission or commission did the conned guy commit.

How best can you carry out due diligence?

  1. Always trust your 6th sense; basically your instinct. When you feel like there is something not adding up, most likely there is a problem. When you meet a vendor who does not sound confident and wants the deal done as fast as possible, it is a red flag.
  2. Get to know the history of the land you are buying from the locals. You’d be surprised at the kind of info you can gather from locals. Biggest challenge is land / plots in town; imagine CBD, whom do you approach? Like I remember in 2003 when I first bought a plot in Syokimau, the sales lady from the Company I bought from mentioned that there is some contentious land whose ownership is claimed by KAA but some fellows are selling. It is so sad that turned out to demolitions witnessed the other day…so so painful. My point is, the info is always there if you are keen to ask around.
  3. Check the land / plot on the survey map. This will also ensure that whatever you are being shown is in line with what the area map shows. A survey map clearly shows the LR numbers, the access roads etc. Make sure it is an authentic map. At the survey of Kenya they go for around Kshs 300.
  4. Carry out an official search for the land /plot and ensure that the title is clean. A clean title has no encumbrances (cautions, restrictions, charges, etc. we’ll talk about these later). Take note that a search cannot tell you anything about a fake title. It is just shows the records as per the green card at the land registry. However, when a fake title is presented to the land registry for a transfer to be executed, then they’ll notice at that point; but by then you’ll have probably lost your money.
  5. Use an Advocate who understand conveyancing and one who is not only licensed to practice but has renewed their license. Some advocates have no clue about conveyancing. They normally must renew their licenses annually. By the way, a transaction done by a lawyer who is not licensed is voidable. This site gives this info:
  1. There is that Ndung’u report. It is wise just to confirm that what you are buying is not mentioned in that report.
  1. Last but not least, ensure you confirm that the ID of the vendor is not fake. You can use security experts / firms to confirm that.
  1. If you can, get to have an idea where the vendor works or lives. Wherever possible, just pay a 10% deposit and le the balance be held by an advocate to be released upon successful transfer.

Play safe coz losses in land deals are usually big and painful. You might cry in the toilet after s**t hits the fan.

Next post we’ll talk about how to interpret the official search document and special circumstances where you can go ahead and deal in a plot which has encumbrances especially when charged by financiers.

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