Conveyancing under both the LTA and GLA is by way of Deed. A deed has 3 main essentials.
1. Signature – it binds the party that signs the document and therefore one can be sued on the contract. By signing one is opening themselves to the legal consequences of not obeying the contract.
2. Must be under Seal – this links the parties signing the documents and gives validity to the document. It also prevents fraud. Under Section 2(1) of the Law of Contract Act (Cap 23) provides that “No contract in writing shall be void or unenforceable by reason only that it is not under seal.”
3. Deed Delivery – this is so that the interest must pass, there must be delivery. In England we have a system of land where land is registered and another system where land is not registered. In a system where there is no registration, the property in an instrument passes with the delivery of that instrument or deed but if that instrument requires to be registered, the property will not pass just by the delivery of the instrument, it must be registered. Under Kenyan law, where a transaction requires to be registered, the deed must be registered for an interest in land to vest. Registration allows evidence to be adduced in court concerning that instrument.
Delivery does not therefore constitute an effective disposition for registrable transactions;
Registrable transactions are transactions which are required by law to be registered.
Sections 99-101 of the GLA and Section 58 of the LTA are to the effect that property passes by registration of the appropriate instrument.