The rise in urbanisation and land scarcity in major cities like Nairobi, Mombasa, Kisumu, and Nakuru has significantly shifted the real estate landscape in Kenya. As a result, apartment ownership has become the norm for many Kenyans and foreigners, both as homeowners and investors. However, until recently, many apartment buyers were issued long-term subleases, which offered limited rights and created ambiguities around ownership, management, and shared areas.
To address this, Kenya enacted a robust legal framework known as the Sectional Properties Act 2020, CAP 286, which enables owners of apartments, flats, townhouses, and other units in multi-dwelling buildings to hold direct titles to their units and collective ownership of common areas.
What Is a Sectional Title in Kenya?
A sectional title refers to a legal ownership structure where an individual owns a specific unit (e.g., an apartment or a flat) within a multi-unit development, along with a proportional share of the common property (e.g., staircases, parking, gardens).
Under the Sectional Properties Act, 2020, a sectional title is issued after registration of a sectional plan, which defines unit boundaries and common areas. Each unit owner receives a separate title deed for their apartment, distinct from the traditional leasehold system, where all units were under a single mother title. This offers indefeasible ownership of the unit.
The Law on Sectional Properties in Kenya
The legal foundation for sectional property ownership is provided under:
- The Sectional Properties Act, 2020 – Repealed the Sectional Properties Act, 1987, and introduced updated, streamlined processes for sectionalization, registration, and management of sectional units.
- The Sectional Properties Regulations, 2021 – Provide practical procedures for implementing the Sectional Properties Act.
- The Land Registration Act, 2012 – Provides for the registration of land and leasehold interests
- The Land Act, 2012 – It regulates land tenure and transactions on land.
- The Constitution of Kenya, 2010 – Especially Article 60 (sustainable land use) and Article 40 (right to property).
These laws collectively ensure apartment owners have clear, enforceable rights and responsibilities.
The Sectional Properties Act, 2020
The Sectional Properties Act, 2020, replaced the outdated 1987 Act to align with Kenya’s Constitution and modern real estate practices. The Act governs:
- The subdivision of buildings into sectional units for individual ownership.
- The management and registration of these units.
- The creation of management corporations (owners’ associations) for common property.
Key Legal Provisions
- Section 2: Defines a sectional unit /property as a space that is situated within a building and described in a sectional plan by reference to floors, walls, and ceilings within the building, and shall include its proportionate share in the common property.
- Section 13(1): Mandates conversion of all long-term subleases (over 21 years that are intended to confer ownership of an apartment, flat, maisonette, town house, or an office that were registered before the commencement of this Act) into sectional properties within two years of the Act’s commencement.
- Sections 5 and 6: Once a sectional plan is registered, individual title deeds, a certificate of title if the property is freehold or a certificate of lease if the property is leasehold, can be issued to the distinct sectional property owner and shall include their proportionate share in the common property.
- Section 8: Provides for liability of a unit owner and provides that the owner shall only be liable for an interest endorsed on the sectional plan in proportion to the unit factor for their unit.
Entitlements of a Sectional Property Owner in Kenya
Owners of sectional properties enjoy the following rights and entitlements:
- Absolute ownership of their apartment/unit, evidenced by a Sectional Title Deed.
- Undivided share in the common property (hallways, gardens, lifts, etc.).
- Automatic membership in the Body Corporate (management entity)
- Right to vote in decisions concerning the building through the management corporation.
- Right to lease, charge, sell, or transfer the unit independently.
- Participation in the management of common property and collective decision-making.
- Legal protection of their unit and the common property under the Sectional Properties Act.
Process of Buying a Sectional Property in Kenya
The purchase process of a sectional property typically involves the following steps:
- Due Diligence
- Conduct a title search at the Land Registry.
- Verify the existence of a registered sectional plan.
- Confirm developer compliance with planning approvals.
- Legal Consents & Clearances:
- Ensure the vendor has obtained all necessary approvals, including developer consent, Certificate of Incorporation of the Vendor Company, the land conversion status, NCA approval, NEMA approval, Head Lessor’s Consent (e.g. the charging bank consent), Land Control Board (if applicable), National Land Commission rent clearance, and county rates clearance certificates etc.
- Sale Agreement
- Must reference the unit number and entitlement to common property
- Include payment terms, completion date, and transfer process
- It is advisable to engage competent conveyancing lawyers to review the agreement for you and ensure the terms are fair and not punitive to you as the buyer.
- Transfer & Registration
- Execute the transfer instrument.
- Pay stamp duty (typically 4% for urban properties)
- Registrar issues a Certificate of Title or Lease for the unit.
- Membership in Body Corporate
- Upon registration and issuance of the certificate of title or lease, you become a member of the management corporation, responsible for managing common property, with voting rights.
Mandatory Conversion of Long-Term Leases to Sectional Titles
Section 13(2) of the Sectional Properties Act, 2020, requires all long-term leases (over 21 years) for apartments and flats to be converted into sectional titles. This conversion is mandatory and is a prerequisite for any future sale, transfer, or mortgage of the property. The Ministry of Lands has issued directives making conversion compulsory in Nairobi and other urban areas, and transactions cannot proceed without compliance.
Requirements for Conversion of Leasehold Titles to Sectional Properties
To convert a leasehold title to a sectional property, the following are required:
- Mother Title: The original title for the land parcel.
- Approved Geo-referenced Sectional Plan: Prepared by a licensed surveyor, showing the division of the building into units and common areas.
- Building Plans & Approvals: Approved by the relevant county government.
- Schedule of Unit Entitlement: Certified by a surveyor, indicating the floor area of each unit.
- Consent of Chargees (if property is charged to a bank).
- Long-Term Leases: Existing leases to be surrendered.
- Application Registration Forms: Including Form SP 16 for conversion and Form SP 7 for registration of the management corporation.
The Process of Conversion
The conversion process follows these general steps:
- Initiation of the process
- By the developer, management company, or any unit owner(s) in case the management company has failed to apply for conversion.
- Preparation of Geo-referenced Sectional Plan
- Must define unit boundaries and common areas.
- Engage a licensed surveyor to draft the sectional plan.
- Submission to Land Registry
- Submit the plan, master title, existing leases, and other required documents to the land registry.
- Surrender of Mother Title
- The mother title is surrendered, and the register is closed.
- The Registrar registers the sectional plan.
- Titles Issuance
- Each unit gets an individual Certificate of Title or Lease
- Registration of Management Corporation
- Upon registration, a Corporation under the name “The Owners, Sectional Plan No. (the number to be specified being the number given to the plan on registration)” is formed to manage the common areas.
- The Corporation is made up of all sectional title holders.
- The Registrar shall issue a certificate of registration of the corporation.
- The Corporation shall have perpetual succession and a common seal.
- The Corporation shall be regulated under the Sectional Properties Act, and the bylaws specified in the regulations shall, subject thereto, have effect in relation to the corporation and its board.
- The provisions of the Companies Act (Cap. 486) shall not apply to the Corporation.
How Njaga & Co Advocates LLP Can Help
Njaga & Co Advocates LLP is a leading law firm in Nairobi, Kenya, specialising in real estate and property law. We have successfully advised and represented numerous clients, developers, homeowners’ associations, foreigners intending to invest in Kenya, and individual buyers on matters related to apartment ownership and sectional property law in Kenya.
Our best services include:
- Legal advice on compliance with the Sectional Properties Act.
- Due diligence and verification of property documents.
- Preparation and review of sale agreements and transfer documents.
- Facilitation of conversion from long-term leases to sectional titles.
- Representation in dealings with the Ministry of Lands and county authorities.
- Formation and registration of management corporations (owners’ associations).
- Resolution of disputes related to sectional property ownership.
At Njaga & Co Advocates LLP, we provide end-to-end legal support for buyers and developers, ensuring smooth transactions and legal compliance throughout the process. Our client-centric approach ensures compliance, efficiency, and protection of your investment.
Conclusion
Sectional titles have revolutionised apartment ownership in Kenya, offering clarity, security, and governance. Understanding the legal framework is essential, whether you’re buying a new unit or converting an existing lease. With expert guidance from firms like Njaga & Co Advocates LLP, you can navigate the process seamlessly and safeguard your property rights.
At Njaga & Co Advocates LLP, we’re committed to ensuring that your apartment ownership journey is legally sound, efficiently managed, and fully compliant.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
