Thursday, December 15, 2022

Difference Between Joint Tenancy and Tenancy in Common

1.0 Introduction

When two or more people own a home, either as a joint tenancy or tenancy in common, each person owns a share of the entire property. This means that specific areas of the house are not owned by one individual, but instead, are shared as a whole. While joint tenants are similar to tenants in common in many ways, particularly with regard to their right of possession to a given property, there are some important differences.


2.0 Tenancy in Common

While none of the owners may claim a specific area of the property, tenants in common may have unequal shares and different ownership interests. For instance, Tenant A and Tenant B may each own 25% of the home, while Tenant C owns 50%. Tenancies in common also may be obtained at different times, so an individual may get an interest in the property years after one or more other individuals have entered into a tenancy in common ownership.
Joint Tenancy

Joint tenants, on the other hand, must obtain equal shares of the property with the same deed, at the same time. The terms of either a joint tenancy or tenancy in common are outlined in the deed, title, or other legally binding property ownership document. The default ownership for married couples is joint tenancy in some states, and tenancy in common in others.


2.1 Pros and Cons of Tenancy in Common

Buying a home with a family member or business partner may make it easier to enter the real estate market. Dividing deposits, payments, and maintenance make real estate investment less expensive for an individual buyer.


However, when mortgaging property as tenants in common, all borrowers sign and agree to the loan agreement, and in the case of default, the lender may seize the holdings from all tenants. If one or more borrowers stop paying their share of the mortgage loan payment, the other borrowers are still responsible for the full payment of the loan.


Using a will to designate beneficiaries to the property gives a tenant control over their share. However, the remaining tenants may subsequently own the property with someone they do not know or with whom they do not agree. The heir may file a partition action, forcing unwilling tenants to sell or divide the property.

2.1.1 Pros
  • Facilitates property purchases
  • Number of tenants can change
  • Different degrees of ownership possible
2.1.2 Cons

  • No automatic survivorship rights
  • All tenants equally liable for debt and taxes
  • One tenant can force sale of property
3.0 Comparison/Contrast

3.1 Terminating Joint Tenancy vs. Tenancy in Common

A joint tenancy can be broken if one of the co-owners transfers or sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties.

A tenancy in common can be broken if one of the following occurs:One or more co-tenants buys out the others
The property is sold and the proceeds distributed amongst the owners
A partition action is filed, which allows an heir to sell his or her stake. At this point, former tenants in common can choose to enter into a joint tenancy via written instrument if they so desire.

This type of holding title is most common between husbands and wives and among family members in general since it allows the property to pass to the survivors without going through probate (saving time and money).

3.2 Right of Survivorship

One of the main differences between the two types of shared ownership is what happens to the property when one of the owners dies.

When a property is owned by joint tenants, the interest of a deceased owner gets transferred to the remaining surviving owners. For example, if three joint tenants own a house and one of them dies, the two remaining tenants each obtain a one-half share of the property. This is called the right of survivorship.

Tenants in common have no rights of survivorship. Unless the deceased owner's will or other instrument specifies that their interest in the property is to be divided among the surviving owners, a deceased person's interest belongs to the estate.

4.0 Conclusion 
In a Joint Tenancy, tenants obtain equal shares of a property with the same deed at the same time. With two tenants, each owns 50%. If one party would like to buy out the other, the property must be sold and the proceeds distributed equally.

In Tenancy in Common, the ownership portion passes to the individual's estate at death. In Joint Tenancy, the title of the property passes to the surviving owner.

Wednesday, December 7, 2022

All you need to Know about Making of a Will

1.0 A will

• Any person can write a will at any time as long as they are of sound mind, above 18 and not been coerced to do so.
• A person, may through his/her will appoint an executor. This is someone named in a will who has the legal responsibility to take care of a deceased person’s remaining financial obligation e.g disposing property, paying bills, taxes, etc.
• Takes effect after death of the maker (testator/testatrix)
• It’s a mere intention of the maker – can be amended but only by the maker during their lifetime.
• Can deal with property acquired after death of maker (ambulatory)


Advantages of Making a Will

• The deceased can exercise control over property
• Avoiding courts from determining who is entitled to property
• Appointing property representatives of choice
• Avoiding disputes over property
• Persons outside family can have property
• The deceased can decide on how he/she can be disposed off

2.0 Invalid Wills
• When the maker of a will lacks knowledge and approval of a will, the will is as if it was not made at all. This is because of;
• Fraud/forgery
• Coercion
• Mistake /duress/undue influence

3.0 Oral Will

• Is valid only if; 
• Made before 2 or more competent witnesses 
• The maker dies within 3 months of making it 
• An oral will made by a member of the armed forces during a period of active service shall be valid if the maker of the will dies during the same period of active service even if he/she dies more than 3 months after making the will. 
• If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except if the contents can be proved by a competent independent witness 

4.0 Written Will 
• Must be signed by the maker 
• If signed by somebody other than the maker, then this should be done in the maker’s presence and under his/ her directions 
• Must be witnessed by two or more witnesses. This two witnesses must not be beneficiaries in the will because otherwise there shall be need of an additional two witnesses. 
• If the maker of a will refers to another document in his will, the document shall be considered as part of the will as long as it is verified that it is the exact same document the maker was referring to in his/her will. 
• An executor shall not be disqualified as a witness to prove execution of the will or to prove the validity or invalidity of the will. 
• If a dependant or dependants feel that the deceased’s will does not provide adequately for their needs, they may make an application to the Court. 
• The Court may order a specific share of the property be given to the dependent (s) or periodical payments or a lump sum payment.

• In making its decision the Court will consider: 
• the nature and amount of the deceased’s property 
• any past, present or future income from any source of the dependant 
• the existing and future means and needs of the dependant 
• whether the deceased had given any property during his lifetime to the dependant(s) 
• the conduct of the dependant in relation to the deceased 
• the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will 
• the deceased’s reasons for not making provision for the dependant. 

• “dependant” means 
• the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased before his death; 
• the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, 
• brothers and sisters, and half-brothers and half-sisters, who were being maintained by the deceased before his death 
• Where the deceased is a woman, her husband if he was being maintained by her before her death. 

5.0 Revocation, Alteration and Revival 
• A will can be revoked, altered and revived only by the maker at the time when he is competent to dispose of his property. 
• Revocation of a will happens when the maker takes some action to indicate that he/she no longer wants the will to be binding. 
• For revocation to be effective, the intent of the maker, whether express or implied, must be clear, and an act of revocation consistent with this intent must take place. 

• Persons who wish to revoke a will may: 
• Use a codicil, which is a document that changes, revokes or amends parts of will or the whole will 
• Make a new will that completely revokes an earlier will 
• May tear, cancel or burn the will 

• A will can be revoked through divorce. If after writing a will, the maker separates, divorces from his/her spouse and enters into a separation agreement in which the 2 settle their property rights, any inheritance or powers made by the will to the former spouse will be revoked unless otherwise stated.

• No alteration made in a written will shall have any effect unless the alteration is signed and confirmed. • Revival of will: A revoked or part of a revoked will can revived by codicil or a new will. To revive by a codicil, the revoked will must be in existence that is, not destroyed. The codicil must show an intention to revive.

Wednesday, November 30, 2022

A Review of the Salient Features of the Sectional Properties Act, 2020 and the Sectional Properties Regulations, 2021

 1.0 Introduction

The Sectional Properties Act, 2020 laws of Kenya (the “new law”) has effectively repealed the Sectional Properties Act of 1987, laws of Kenya (the “repealed law”).

The sectional properties law seeks to sub-divide buildings into units to be owned by individual proprietors and common property to be owned jointly by the proprietors as tenants in common.

The new law seeks to simplify the process of registration of sectional properties and create an enabling environment for investors and property owners. It seeks to guarantee the rights of property owners by conferring absolute rights to individual unit owners over their units and vest in them the reversionary interests thereto.

This will give the unit owners greater power and liberty to deal with their units as they please and it is anticipated that their transactional ability to access financing and dispose their units will be dramatically expanded. This will also motivate lenders and financiers to offer credit facilities to the individual unit owners as they may now charge the individual units directly without requiring the consent of the developer and or the manager.

We highlight the salient features of the Sectional Properties Act, 2020 as below: -

1.1. Leasehold Tenure

The sectional properties law applies to land held on a freehold tenure or on land held on leasehold tenure where the intention is to confer ownership. The new law has reduced the leasehold period to twenty-one years from the forty-five years required under the repealed law. This enlarges the purview of the sectional properties laws to extend to proprietors of all long term leaseholds which are defined in law as leases for a period of twenty-one years and above.

1.2. Nexus Between The Sectional Properties Act 2020 And The Land Registration Act, 2012

The efforts of the Ministry of Lands and Planning (the “Ministry”) in the recent past have been geared towards phasing out the different land registration regimes that have existed and give effect to the Land Registration Act, 2012 (the “LRA”); such that all dealings in or dispositions of land shall be registered under the LRA. The new law makes express reference to this by providing that the title to a sectional property shall be deemed to be issued under the LRA and all dealings and dispositions regarding the sectional property shall be in accordance with the LRA.

1.3. Registration And Mandate Of The Management Corporation

Upon registration of a sectional property, the individual owners are constituted in a Corporation which is responsible for management of the common property. The new law provides that upon registration of the sectional plan, the registrar shall issue a Certificate of Registration in respect of the Corporation. This was not the case under the repealed law.

The new law mandates the Corporation to do all things to ensure the common property is well managed and may engage the services of a property manager or any other person to this end. The new law further mandates the Corporation to establish an internal dispute resolution mechanism through the Committee established under the Act to hear and determine any disputes. It also empowers the Corporation to execute any of its duties by the use of technology. These provisions were not in the repealed law and reflect the dynamics of the current world.

The new law has repealed section 29 of the old law which provided for the compulsory appointment of an institutional manager and extensively set out the qualifications and duties of the said institutional manager who would be responsible for management of the units, any property of the Corporation as well as the common property. As discussed above, section 20(1) of the new law provides that the Corporation may, if it deems it necessary appoint a property manager to manage the common property.

1.4. Conversion of Sub-Leases

The new law further provides that all long term sub-leases intended to confer ownership on a mansionette, apartment, flat, town house or office that were registered before the new law shall be reviewed to conform with section 54(5) of the LRA and the proprietors thereto shall be issued with certificates of lease. The import of this provision is to transition all buildings to sectional status and guarantee the absolute rights of the owners of such units to deal with the same without being subject to the power and direction of the developer and or the management company.
This said review and transition of sub-leases shall be done within a period of two years from the date of commencement of the new law. This will not entail a transaction from scratch and an owner who has already paid stamp duty in respect of the said sub-leases shall not be required to pay stamp duty during the revision.
The process of conversion may be commenced by the developers, the management company or the individual unit owner. If the developer is unwilling to surrender the mother title for purposes of the conversion, the registrar may register a restriction against the title to prevent any further dealings on it.

The review process anticipated in the new law must be read and understood alongside the provisions of the Gazette Notice Number 11348 of 31st December, 2020 providing for conversion of land titles. It would appear that the efforts of the Ministry are geared towards bringing all land dealings in Kenya under the purview of the LRA as earlier discussed. The surrendered sub-leases would be subject to the new land registration units established under the said Gazette Notice depending on where the property is situated. Noting the timelines set out for conversion of the land titles commencing from the month of April, 2021, a diligent unit owner should peruse the Gazette Notice to confirm whether the mother title is part of the phase one of the conversion of land titles. It is not clear which of the two between the conversion and the surrender and revision of the sub-leases should precede the other or whether they can be undertaken at the same time.

1.5. Registration And Removal Of Caution In Respect Of Unpaid Amounts

The Corporation may register a caution against the title to an owner’s unit for any amounts due and unpaid by the owner, provided that upon payment of the amounts due, the Corporation shall within thirty days of payment withdraw the caution. The new law has prescribed the period within which the caution should be withdrawn. The repealed law was silent on this.

1.6. Renting Of Residential Units

Under the repealed law, an owner renting out their unit was required to disclose to the Corporation the amount of rent chargeable to the unit as well as pay a deposit to the Corporation for maintenance, repair and or replacement of the common property. This is not a requirement under the new law which recognizes the autonomy of an individual unit owner to deal with their individual unit as they please independent of the common property and the mandate of the Corporation.

1.7. Termination Of The Sectional Status Of A Building

Under the new law, the sectional status of a building may be terminated by unanimous resolution of the unit owners, the substantial all total destruction of the building or pursuant to an order for compulsory acquisition and the Corporation shall stand dissolved upon the termination of the said sectional property status. Under the repealed law, the sectional status would only be terminated by unanimous resolution or by an order of the Court. The Corporation was also required to apply to court for an order winding up the affairs of the Corporation.

1.8. Dispute Resolution

Under the repealed law, any disputes relating to the contravention of the by-laws of the Corporation were referred to a tribunal established under the Landlords and Tenants Act which was mandated to recover from an errant owner or tenant a penalty not exceeding Kenya shillings twenty-five thousands. Under the new law, disputes in relation to contravention of the by-laws are referred to the Committee which is an internal dispute resolution mechanism of the Corporation and without any prescribed limit as to the penalties to be levied.

Under the new law, in the event of non-compliance with an order of the Committee or if a party is disgruntled with the decision of the Committee, both may apply to the Environment and Land Court for enforcement of the order or in the case of an appeal from the decision of the Committee as the case may be. The repealed law provided that enforcement of an order of the tribunal in the event of non-compliance would lie with the Resident Magistrate Court and any right of appeal would be exercised at the High Court of Kenya.

The Sectional Properties Regulations, 2021

Introduction


The Cabinet Secretary for Lands and Physical Planning has gazetted the Sectional Properties Regulations, 2021 (“the Regulations”). Their objective is to operationalise the Sectional Properties Act, 2020 (“the Act”). The Act covers ownership of units in a building such as offices, apartments, flats, and townhouses. We summarize below the key provisions of the Regulations.

Salient features of the Regulations
A key aspect of the Act is that ownership of the unit is devolved to the unit owners and held exclusively by them. This is illustrated by the below:

Sub-division and Consolidation
Owner may sub-divide or consolidate their unit by registering a sectional plan of sub-division, or consolidation respectively. 

Where the subdivision or consolidation is likely to affect the incidental rights of other unit owners, their consent will be required. If the property is charged, the chargee’s consent will be required, as well. 

Apportionment of Rent and Rates 
The obligations to pay rent and rates is now on the unit owners. 

Rates Apportionment is determined by the County Government of the area the parcel is located. 

The Unit factor attributable to the unit, as computed below is one of the factors taken into account in determining rates or rent payable. 

Unit factors 
Each registered unit shall be allocated a unit factor/unit entitlement. The unit factor is critical in determining the ownership of Common Property held by all the unit owners as tenants in common and the number of votes that a person may cast in a poll. 

The unit factor may be determined in reference to any of these 3 factors or a combination: 
❖ by the unit floor area; or 
❖ by the selling/ value of the unit; or 
❖ by location/position of the unit e.g. a penthouse or a riverfront unit as opposed to the other units.

The recommended basis under the Regulations is the use of unit floor area, which is the simplest. The total of the unit factors for all units in the parcel is assumed to be 10,000, for ease in determining unit factors in whole numbers. 
Note: The size of the Common area is not factored in when determining the total area. 

Conversion 
Documents supporting a conversion application are the: sectional plan, sub-lease/ long term lease and the Title or a Copy of the Title of the parcel. Where the original title is unavailable, the applicant shall apply for a replacement title. 

After conversion, the Registrar shall issue the unitowner with a Certificate of Title/Lease. 

 Upon conversion, the management company should transfer all its assets and liabilities to the corporation within a period of one year from the date of registration of the corporation. 

If the property is charged, the application for conversion may be prepared by the developer, Management Company or unit owners but submitted by the chargee or its appointed representative for processing at the Lands Registry. Failure to make an application for conversion shall not invalidate a charge over a Unit meant to secure the unit owner’s obligations to a chargee. A charge may as well exercise its statutory power of sale and the Registrar shall issue a new sectional title in the name of the transferee upon registration of transfer by the chargee.

Conclusion 
The Regulations are a positive step towards the implementation of the Act, which seems to have a lot of confidence from the end purchasers.  

The Act requires conversion of long term leases within 2 years from its commencement i.e. December 28, 2020. With almost a year having lapsed before the publishing of the Regulations and considering any operational delays, it may be prudent that the Act is amended to allow the CS by gazette notice provide for the period within which conversion must be complete. 

Additionally, conversion where the Property is charged as security may be problematic for example where only a portion of the units have been sold. There would need to be co-operation between the developer and the buyers who were issued with long term leases, pursuant to a Partial Discharge. If these individual buyers had then used their units as security to other financial institutions, it presents another hurdle. Even where transfer of all units is complete to individual buyers, noting that securities are noted against the individual leases and not the Head Title, the accuracy of data to ensure no gaps in transition should be ensured. 

More so, a transparent and phased approach such as the one for Conversion of Land parcels, where a gazette notice is published identifying parcels that will be converted may be of some utility, as well as any records by Management Companies for any consents to charge also presented with the application.  

Tuesday, November 29, 2022

Termination of a Contract, Benefits and Wages, and Labour Laws in Kenya

1.0 Areas of Concern

  • Termination of a Contract
  • Termination of a Contract and Benefits and Wages
  • Termination of a Contract and Labour Laws in Kenya

2.0 Introduction
Termination of employment can be initiated by either of the parties to a contract of employment (Employment Act, section 35 (1)). Lawful termination of employment under common law includes:
  • Termination of employment by agreement: When the employer and employee agree to bring a contract of employment to an end following an agreement. This may be in case of terminating a contract of apprenticeship; where the period of training expires then the contract will obviously come to an end.
  • Automatic termination: A contract of employment may be terminated automatically in circumstances such as death or loss of business of the employer.
  • Termination of employment by the employee/resignation: This happens when an employee due to material breach of the contract by the employer decides to resign from his/her employment.
  • Termination of employment by an employer: An employer may also terminate the employment of an employee but there is a need to comply with the provisions of the law and contract relating to termination. 
3.0 On what grounds can a contract of employment be terminated by an employer?
A contract of employment may be terminated by an employer on the following grounds:
  • By mutual agreement between the employer and the worker (Industrial Training Act, section 13 (1) (a)).
  • By the employer when the employee dies before the expiration of the period of employment.
  • By the employer, if the worker is found by a medical examination to be unfit for employment. Due to sickness or accident, the employee becomes unable to carry out his or her work (Employment Act, section 41(1)).
  • By the employer based on the misconduct of employee (Employment Act, section 44 (3)) 
4.0 What should an employer do if he or she wants to terminate a contract of employment?
A contract of employment may be terminated at any time by an employer who must give the employee a period of notice of termination (e.g. at the close of day in case of a contract for daily wages, one month or more in case of monthly pay contracts). 
5.0 What form of notice should I give as an employer?
A termination notice shall be in writing. In case the employee does not understand the notice, the employer is responsible to ensure that the notice is explained orally to the worker in a language he/she understands (section 35 (2) (3)).  
  • If the employee is employed on a daily wage contract, the notice is given at the close of any day without notice. 
  • If the employee is employed on a weekly pay or two-week basis the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in place of notice.
  • If the employee is employed every month the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
  • In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be agreed in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)). 
6.0 Can an employer terminate an employee immediately without allowing them to work during the notice period? Does the law allow this?
In the event, the employer wants to terminate an employee without allowing her/him to serve the notice period the employer will be required to pay the employee the amount that an employee would have received if she/he had worked during the notice period. This is what is usually referred to as payment in lieu of notice (section 36) also (section 38). 
Section 36 provides for payment of equivalent salary in place of notice instead of serving the notice. The length of notice will depend on the interval at which the salary is paid.
7.0 What happens if an employee is terminated but they have outstanding leave they have not taken?
In the case of accrued leave upon termination the employer shall pay an employee on a pro-rata basis an amount in cash for the accrued annual leave to which that employee is entitled (section 40 (1) (e)) - provided that it is taken not later than six months after the end of leave cycle or twelve months after the end of leave cycle if (if the employee consented or extension is justified by operational requirements) (section 28(4)). 
8.0 Can an employer terminate a contract of employment without notice?
Yes. Either party to a contract of employment may terminate the contract without notice if that party pays the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice (section 36).
9.0 Is a certificate of service and notice mandatory even when terminated on misconduct?
Yes. Both are mandatory regardless of the reason for termination unless the period of service of the employee to the employer has lasted less than four weeks (section 51). 
10.0 Four grounds that justify termination of the employment by the employer
  • Misconduct.
  • Physical incapacity.
  • Poor performance.
  • Employer’s operational requirements/retrenchment. 
An employer may also terminate an employee due to participation in an illegal strike. Therefore for an employer to terminate an employee he/she should have a genuine reason as specified in section 45 (2) and section 46. An employee cannot be fired because an employer does not like them - unless the grounds for this dislike are based on the above-mentioned factors.
11.0 What amounts to fair terms termination of employment?
For termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. The employer needs to have a valid and fair reason for termination. 
Apart from this valid reason of termination, the employer must follow fair procedures for termination as are provided under the Employment Act, section 45 (2) and section 46.). In any form of termination, the employer is required to prove the reasons for the termination otherwise it will be termed as unfair (section 45 (2)). The procedures for termination are different depending on the reason for termination but they all have a common item - the right of an employee to be heard before a termination decision is taken against an employee (section 41 (2)).
12.0 Am I to follow the procedure for termination even in cases where an employee is caught red-handed committing serious misconduct, for example, stealing?
Yes. Notwithstanding the serious misconduct of the employee, and the evidence available, the law requires that procedures outlined under the law be followed. Failure to follow the procedure will amount to summary dismissal, meaning an employee is terminated without being availed of an opportunity to defend herself/himself before a fair disciplinary committee. In labor laws, summary dismissal amounts to unfair termination with consequences specified in section 47 and 49 (1) & (3).
Can I terminate an employee who is facing a criminal charge before a court of law?
No one can terminate or take disciplinary action against an employee who is facing the same charges before a court of law unless the two charges are different or do not arise in the same cause of action. 
What are the likely consequences of unfair termination for an employer?
If the labor officer makes the decision that the summary dismissal or the termination of the contract of an employee is unjustified, he may recommend to the employer to pay the employee any or all of the following:
  • The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service. 
  • Where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract.
  • The equivalent of several months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
  • Alternatively, the employer may have to reinstate the employee and treat the employee in all respects as if the employees' employment had not been terminated; or 
  • Re-engage the employee in work comparable to that in which the employee was employed before his/her dismissal, or other reasonably suitable work, at the same wage.
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  • For PDF Version of notes just send a request mail to ---gechangazacharia@gmail.com---

Monday, November 28, 2022

THE ROGUE CHURCHES: LEGAL AND REGULATORY PERSPECTIVE

INTRODUCTION

The rogue churches refer to the group of churches that attempt to brainwash and radicalize the faith of their followers negatively. Rogue churches in this regard refers to the conduct of the alter operators down to the discipline of the churches. Rogue churches by comparative analysis may also include the churches like those concentrated in Sau Paulo and Rio de Janeiro whereby statistics[1] indicate that they majorly comprise of homosexuals which arose as a result of the church’s traditional teachings not condemning homosexuality or not including it as sin and so they end up setting their own churches to cater for those who feel homosexuality is a standard acceptable lifestyle. These churches allow the manifestation of faith in the Christian tradition regardless of sexual orientation[2]. rogue churches may also widely refer to the churches whose leaders amass wealth by the running the church as their business rather than the intended purpose.
According to the Kenyan constitution under article 32 (1) states that (1) every person has the right to freedom of conscience, religion, thought, belief and opinion. That expressly allows every individual to automatically acquire the freedom to worship. At the same article under sub-article 2 continues to state that (2) every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
This gives us a clear idea for everyone’s freedom of worship. However, any mischief or conducts that derail the purpose of the church will not in any manner hinder one from being charged or being corrected using the set laws. It should be noted by the pastors and other leaders of the church that the freedom of religion should not give them liberty and grace to conduct themselves as they please. These kinds of image are a disgrace to the church and they tarnish the image of the church and the Christianity in general. 
In regards to the rogue churches it is probable to reflect mostly on the conduct of the preachers. As a major concern, church rogues’ also arise from the idea or notion of the pastors poorly managing the finances of the ministries they run. It is a clear view a good percentage of the pastors in the recent past who have grown into millionaires due to their widespread trustee misconduct and abuse of trust and fraud majorly against their believers. Many of the pastors have grown rich through rogue activities in the same churches. It at some point led to the idea of introducing taxation of the wealth accumulated from the churches. This idea was pushed for by Olatoye Akinbode, a Nigerian who had suggested for the introduction of income tax on pastors’ wealth in the Nigerian churches. Take Pastor Chris Oyakhilome, for example. He is the founder and lead pastor of the Christ Embassy, a thriving congregation with branches in Nigeria, South Africa, London, Canada and the United States. His publishing company, Loveworld Publications, publishes ‘Rhapsody of Realities,’ a monthly devotional he co-authors with his wife. It sells over 2 million copies every month at $1 apiece. He also owns television stations, newspapers, magazines, a hotel, a fast-food chain, and more.
            These days, millions of souls, desperate for financial breakthroughs, miracles and healing, all rush to the church for redemption. And while the bible expressly states that salvation is free, at times it comes with a cost: offerings, tithes, gifts to spiritual leaders, and a directive to buy literature and other products created by men of God.[3]
This topic on rogue churches can be analyzed in two manners; the legal perspective on one hand and the regulatory perspective on the other hand.
Rogue churches also arise among fellows who don’t want to change their practices. One of the key beliefs of these churches is in the witches and exorcising them whereby small churches can be hidden away in a living room or a garage. The problem with such churches is that they are set up in almost all public places including leisure centers and school whereby no one knows what is going on not even the authorities who cannot manage to track the growth of the churches.
            In the recent past, there was the article that came up with the idea of deregistering rogue pastors. This was brought about after the media (NTV) aired a story of how a pastor allegedly paid commercial sex workers to feign her physical appearance and dupe the congregation about his miraculous ways of healing the lady. Various church leaders said that action should be taken against such individuals since they are tainting a bad image about the church. Some even went ahead to say that it is only a few who were spoiling its name by their actions such as by selling anointing oil which should not be for sale. In such occasions the state has to intervene. At then, the AG Prof. Githu Muigai warned that any church which engages in such illegality will be deregistered if any hard evidence is established.

THE LEGAL PERSPECTIVE

Under the legal perspective, besides the penal codes, there are no clear provisions from the constitution that have directly tried to limit the practices of worship or provide as to the extent as to any limitation in the practices but rather offers exceptional freedom especially under article 32 (4) which states out that a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. This provides worshipers with extraordinary freedom to conduct their practices without any fear of interruption and of which has greatly led to the numerous cases of rogue churches[4] as a result of the fear of confrontation to the alleged preachers.
However, in order to ensure peaceable running of activities concerning worship, various dominions have come up with their own constitutions through which they regulate their conduct. This has to some extent made it easier for the courts in cases where there arises misunderstandings in the same dominions such that the members feel that the actions of their leaders are unscrupulous they can approach the courts for assistance claiming for an injunction to halt proceedings they feel is not probable.
Sometimes the Attorney General has to intervene when acts of infidelity arise in the churches. The AG Prof. Githu Mugai in the recent past seized the moment, of Kanyari’s escapades, in streaming churches and mosques and suspended registration of new churches and mosques until fresh regulations are set. Though sharp as remedial solutions, it is a double entendre whose other meaning may be hidden in a move against freedoms however how ill-advised the move may be towards stemming the alleged illicit activities by certain religious institutions which we refer to as “rogue churches” in which they are geared to tame.
This state action was prompted by a TV documentary[5] exposing the dirty tricks used by salvation Healing Ministry’s leader Victor Kanyari[6] to make millions out of his followers in the name of “seed money”. This actions though are not only depictive only in churches but also by famous renown witches fleecing resources.  At some point, not long ago there was also  one Archbishop Deya of “Miracle babies” fame and scandal in which his activities were deemed criminal and was therefore charged accordingly although he fled away. This then brings leaves with many questions main one being “do we need regulation to stamp out crime against the public?”
John Locke, the famous 18th century social theorist saw the value of keeping the state apart from religion. Locke argued that the government lacked authority in the realm of individual conscience, as this was something rational people could not cede to the government for it or others to control. For Locke, this created a natural right in the liberty of conscience, which he argued must therefore remain protected from any government or authority. Failure to observe this would plunge the back to the religious intolerance from which there is no fleeing from.
As long as the problems for which people seek in the society such as miracles or breakthroughs persist, there will be no end to illegal innovations such as those of Kanyari and Deya. So long as someone claims to offer alternative solutions to people’s needs such as unemployment and poverty, many will gamble with their little resources in hope to get more such as in the lure to “plant seed” in bid to gain a huge  harvest they never planted will always make rogue churches and false preachers flourish.
Greed and desire to move up to the next level seem to have bewitched even educated people. Many religious leaders such as the Evangelical Churches Alliance chairman, Bishop Mark Kariuki, former National Council of Churches Of Kenya(NCCK) boss Mutava Musyimi and Kenya Muslim National Advisory council chairman Sheikh Juma Ngao  have argued and warned the government regulation of religion. [7]
In a similar scenario, this was evident from the Canonical Greek Orthodox Church  in Adelaide whereby GOCSA resistance’s injunction hearing against Prokopios and the committee ordination issue was raised whereby GOCSA’s lawyer was arguing that “power to appoint priests” (which they claim to have in their constitution) is broad enough to include the power to appoint bishops too. That was certainly a rather odd argument from the church or from a theological point of view and so it was for the Supreme Court to come up with a solution.
Internationally, some states have come up to try solving issues of rogue churches despite their efforts being rooted. A good example to illustrate this was the case that tried to shun politics from being incorporated into the churches that was between IRS and the ADF whereby a judge in the U.S District Court for the district of Minnesota sided with the church, ruling that the IRS director of exempt organizations examinations, who had authorized this audit and others, was not a high enough ranking treasury official. The exempt organizations examinations director, the court held, did not have the range of responsibility of a regional commissioner, the official who had been authorized to approve church audits before the IRS was reorganized in 1998.
The government should establish measure to counter such activities such as obtain certificate after the furnishing of doubts and the certificate may either contain details of committee members and registered trustees with their IDs and personal identification number (PIN) and tax clearance certificates among many other documents like location of branches etc.





RECCOMENDATIONS        

There should be the establishment of the church regulations such that religious organizations that fail to file their annual returns to the registrar of societies every year risk being deregistered. And if they fail to file annual returns in three years, they will be declared dormant.
The proposed regulations are in part a response to recent reports in which some Christian leaders have been exposed by investigative journalists to be engaging in unethical practices, fleecing gullible followers by promising miracles in exchange for money.
However, in drafting the measures[8], there should be keenness such as note to limit the freedom of worship as provided by the constitution.

THE REGULATORY PERSPECTIVE


Under the regulatory perspective, it is deeming fit for there to be rules and regulations that control the operation of churches. By doing so it would be easy to enforce the law against the ungodly and unprofessional pastors who and hold them accountable for their actions. It is noted that most of the preachers are self-imposed, self-appointed, anointed and ordained leaders who do not have proper qualifications and approval to be deacons, pastors or bishops.
There have been established associations which regulate the conducts of the leaders of churches from misusing the privilege of worship. Such associations like Association of Charismatic and Pentecostal bodies of Namibia which have rose to the occasion to propose the government to establish a body that would regulate the churches’ activities. The leader of the association, the president of the ACPCN, Reverend Jan Fritz Gaweseb said the association’s aim was to get rid of the Christian faith of the uncalled for actions of ungodly and unprofessional pastors. He went ahead to condemn the fake pastors operating in the rogue churches in Namibia saying that it would be very easy to hold the fake pastors accountable for their actions if there are regulations put in place to control the churches.
Their main aim is to flush out the bad behavior and misconduct of some pastors and church leaders. The association also goes ahead to criticize the pastors who claim to have miraculous healing powers that solve people’s health or spiritual problems and those who also make promises of bringing people fortunes in exchange for donations to the church that are used for their own personal gains rather than for what they profess in the alters they run the business rather than the Christianity.
There also arose the issue of the church and the state. In the United States leaders had engaged churches auditoria into campaigning for them during elections. A good example was during the occasion when Garlow made the comments regarding the race for the GOP presidential nomination which raised a major question “did he violate the 501(c)(3) prohibition against campaign intervention?” in which the Alliance Defense Fund (ADF) hopes the answer is “yes”. Garlow’s made his remarks during a sermon before his congregation as part of “pulpit freedom Sunday” during its fourth year with aim of encouraging preachers to give sermons and brought about by the ADF to prevent biblical perspectives on positions of electoral candidates.[9] In the event, the IRS spoke up to warn the ADF against the pulpit practices setting straight that church electioneering is illegal and people don’t support it as the AU Executive Director Barry W. Lynn said in a statement days before occurrence of the same event. He went ahead to say that “It is time for the religious right to stop trying to drag churches into backroom politics.”
Another issue that adds up to the creation of rogue churches is the moral crisis as a challenge to the church. Moral leadership is by far the most critical area where the church is expected to play a specific role. My contention is that even more than the political and economic crises, the moral crisis represent the greatest challenge in Africa – and indeed in the world in general. There are serious ethical questions both at the African and world level that we must be prepared to give leadership in addressing. The so-called new international economic order, which is being expressed through globalization, is but a global economic apartheid. Basically, it is a moral question even before it becomes an economic and a social question.
The moral leadership of churches[10] should also be discerned in the area of debt and structural adjustment programs. These are fertile grounds for breeding corruption. Debt cancellation alone is not enough. Alongside with the campaign for debt cancellation, the church must raise ethical questions about borrowing, lending, and spending. How responsible have we been in those three areas? The church must unmistakably state that structural adjustment policies and programs as well as debt servicing and repaying are unethical as long as they result in massive suffering of the people.
The moral leadership of the church is critical in fighting corruption. As noted above, corruption and graft exist in all countries of the world. In some countries of Europe procedures get through as so called commissions, in others they may be considered as corruption. So, we cannot say that corruption only exists in the South or the west countries.
However, a society in which corruption and graft are institutionalized and generally accepted as a standard behavior will hardly progress in anything. In many African and non-African countries the churches have an enormous responsibility. This is even more so, as many of the countries heavily infected by corruption boast of very high percentages of Christianity. There is no doubt that a drastic change in the ethical and moral climate in Africa is necessary for the continent to be in a position to utilize and allocate its resources justly and efficiently. I insist on the role of the churches in fighting corruption not only because it is simply Christian to do so. It is also African.
From the traditional African point of view to talk of a corrupt leader was a contradiction in terms. A leader was a person whose moral integrity was unquestionable. FECCIWA, the Fellowship of Christian Councils and Churches in Western Africa, which organized this consultation to overcome corruption, should pioneer in promoting an ethical code of leadership in Western Africa.
The same has grown into our current church leaders in that even if they go ahead to ponder the church finances and use them as they please, there is no one to question into the budget or take the responsibility to verify if the church finances have been used in a manner to assist the church grow or the leaders have converted the money for their own interest. This drives us to the Nigerian article that came up with an argument over the numerous growth of richness that has been accumulated from the churches.[11]
It’s so hard to imagine how a full-time preacher like David Oyedepo or Chris Oyakhilome or even Deya can manage to amass such huge wealth. However, the answer can be straight that it’s from the tithes, offerings and donations offered by the wealthy members of their congregations, most of whom defend the right of the pastor to grow wealthy in the service of his flock. There are however two fundamental problems that arise with all these pastoral wealth. The first is that it is generated from the process of trustee misconduct, abuse of trust and fraud.
As Prof. George Avittey reminds us, ‘traditional African rulers were held accountable at all times’. [12] He goes on to cite the example of Mantse Obli Taki who was dethroned in 1918.
Obli Taki was accused of a number of offences but the most serious of all was ‘the selling of Ga land in the name of the Ga people without consulting the owners of the land and pledging the stool throne itself as security on a loan’.[13]  Another example is in 1883, the Asante people dethroned their king Mensa Bensu for excessively taxing the people and the failure to account for the taxes collected. This clearly indicates that the church leaders should be responsible in the manner in which they use the funds of the church and if possible the funds should be accounted for the purposes of transparency and accountability towards the followers. The church leaders should therefore be liable for their actions so as to cub the idea of “rogueness”.
            In conclusion, I suggest we ask ourselves crucial questions: ‘Where are the sites in which churches buried the truths that made it possible for the leaders to live such dignified lives? Where is the crucible of the spirit that enabled our people to name and deal ruthlessly with “the intolerable” in our churches – thereby sustaining hope for all the people? Whatever happened to the generosity of the spirit that characterized the qualities of a church leader?’ It is by answering such questions that we will begin to deal in earnest with the issue of spirituality as a foundation of the churches and help counter the rising number of rogue churches in the society.
            There is therefore a great task up on  the organizations and regulators that may be set up to take the lead in exploring ways of ecumenical responses to corruption in this region and beyond. My emphasis would be to facilitate the rebirth of the African values that girded the ethical dimensions of leadership and governance. This would aid come up with smooth operation in the churches today as was in the past.

CONCLUSION
In modernity, despite the challenge of post-modernism, a person’s life in religion is a private affair. That simply implies that it is optional and based on one’s own free will. Leadership, all over the world, should promote the idea that the witness (martyria) of the church is mainly directly related to the internal individual local churches. It is a matter of identity of each concrete ecclesiastical community: ‘For even as we have many members in one body, and all the members do not have the same function, so we, who are many, are one body in Christ, and individually members one of [14]another’ as the bible quotes it.
 When we address issues of personal identity and cohesion of society, religion, as part of a cultural system,[15] plays an important role. No one can talk about probable models of a multicultural society without taking religion into consideration. The academic analysis of the religious phenomenon has shown that the study of religious data is not only useful but also essential to social matters.[16] The history of religions and academic interreligious dialogue aids the effort to achieve mutual understanding and the exchange of religious knowledge and therefore the chronic ideology of how churches should function and how they are run intellectually. Both mutual understanding and the exchange of religious knowledge are vital devices necessary to approach the world religious experience.
The formulation of the structure of an ecclesiastical community[17] is related with the face of the leader and how this had gradually developed in the political systems and the cultural regulations that emerged in the long-lasting course of various Christian communities.
Nowadays, the pressing issue that arises in a continuously transforming society is how religious leadership can respond to the new demands and face the new challenges without being presumed bias.[18] In the words of Saint Paul: ‘Don’t be conformed to this world, but be transformed by the renewing of your mind, so that you may prove what is the good, well-pleasing, and perfect will of God.’[19]transforming then seems to be the key rather than conforming.
It is a widely accepted historical fact that in the past religion provided a motive for bloody conflicts and animosity between people. At the same time, it is also acknowledged that religion has the internal dynamics to heal the traumas and tensions caused by errors of the past. Religion cannot remain indifferent to the anxieties and needs of people today.
Of course, many people believe that the church is betrayed by its leaders every time they abuse their leadership role and position, and every time they show an arrogant conviction that they are the only bearers of God’s grace. They have to keep in mind that it is God who reconciles, and human beings actually participate in God’s Mission.
We are living in the new era of globalization which has brought people together and at the same time pointed to the diversities of the several pluralistic environments. It is our duty to create safe places and reconciling (and reconciled) communities. Our vision must be to form such communities, in other words to make again the church what it really is.
 The truth is that no one want to assert the fact behind the wealth of church leaders congregations tend to go silent on such matters that touch on financial malfeasance and church members overlook approvingly as their preachers grow rich on income that they are by law bound to hold and administer in trust for the purpose of advancing the course of Christianity. Financial transparency and accountability cannot make sense in the churches.
REFERENCES
1.      Hock, Klaus, ‘Beyond the Multireligious. Transculturation and Religious Differentiation’,
2.      Stückelberger, Christoph, Continue Fighting Corruption. Experiences and Tasks of Churches and Development Agencies, Berne: 2003, p. 38-41.
3.      Encounter’, in: Mortensen, Viggo (ed.), Theology and the Religions. A Dialogue, Grand Rapids, MI/Cambridge: Eerdmans, 2003, pp. 46-63, p. 55.
4.      McCutcheon, Russel T./Braun, Willi, Guide to the Study of Religion, London/New York : Cassell, 2000.
5.      Book of Russel McCutcheon “Critics, not Caretakers. Redescribing the Public”.
6.      Study of Religion, New York: SUNY Press, 2001.
7.      Ecclesiastical structure through the ages in East and West
8.      Petrou, J., Christianity and Society, Thessaloniki: Vanias, 2004, pp. 80-105.

Wednesday, November 23, 2022

Legal Review: Sale Agreement and Its Salient Features

IMPORTANCE OF SALE AGREEMENT

The agreement acts to protect both of the purchaser and seller’s interests and to ensure that both get what they rightfully deserve without getting duped. The sales agreement fully protects the rights and interests of the buyer and the seller because if one party fails to adhere to the contract the other party can take legal action to recover the damages caused.

The sales agreement is filled in triplicate one for the vendor, one for the purchaser, one for the lawyer/ legal advisor overseeing the transaction.

Having a sale agreement also conforms to The Law of Contract that provides for written agreements in disposition of land hence it ensures legal compliance and validity to bind the parties.

It ensures enforceability in the event of fraud, default in payment, breach of terms among other reasons for failure of an agreement. Without having a written sale agreement it would be difficult to prove to the court that an agreement regarding the sale of land existed or took place.

CONTENTS TO INCLUDE IN A SALE AGREEMENT


A sale agreement unlike any other contract must provide the following to be valid:
  • The contract must provide that the vendor is vested with capacity to sell as the beneficial owner of the property;
  • The price at which the property is sold at is very important and must be stated;
  • The deposit payable at the signing of the contract i.e. 10% of the purchase price for most contracts;
  • In some contracts the deposit payable may be higher i.e. 20% or more;
  • That the deposit will be held by the vendor’s advocate pending completion as a stakeholder pending completion;
  • The contract completion date i.e. when the completion documents change hands vis a vis payment of the balance of the purchase price;
  • The contract completion clause may also stipulate how the balance of the purchase sum will paid. Is it by banker’s cheque or by means of professional undertaking by the purchaser’s financiers directed at the vendor’s advocates;
  • If interest is payable on the balance of the purchase sum should there be delay in completion and the rate of such interest this should also be stipulated in the contract;
  • The rate of interest should be specified;
  • The conditions of sale must be included. Most contracts for the sale of land in Kenya are subject to the Law Society Conditions of Sale (1989) Edition so long as the conditions do not contradict the terms of the contract. Alternatively if necessary the conditions may be varied accordingly to be in conformity with the terms of the contract.

A land sale agreement should include but not limited to:

  • Identity of both the buyer and the purchaser. This will include full names, Identity card number, phone numbers, and the address code. In most cases, these are also the details to be included in the title deed after the transfer
  • The cost of purchase, this defines the agreed amount to be paid, how it is to be paid (Instalment/cash), and when the amount is to be paid.
  • The description of the property being sold. This will include the size of the land, the title number, where the land is located, and the condition of the land.
  • Distribution of costs involved. This define who pays for the different cost involved in the process of transferring the land to the purchaser from the vendor. Some of the common costs will include stamp duty, legal fees, and title transfer costs.
  • The obligation of each party involved in the transaction. This will help outline all that is to be done by both the purchaser and the vendor.
  • Remedies for breach of the contract. To help ensure that the interest of each party is protected a sale agreement will also outline how non-performance of the agreed terms of the agreement are to be handled.

COMMON CLAUSES TO INCLUDE IN SALE AGREEMENTS IN KENYA INCLUDE:

  • Date and Parties to the contract
  • Recital of the property
  • Definitions and Interpretation
  • Law Society Conditions of Sale 1989 (General Conditions)
  • Agreement for Sale and interest sold
  • Purchase Price and Deposit
  • Interest on late payment
  • Completion
  • Encumbrance
  • Special Condition(s)
  • Capacity
  • Possession and Movables
  • Matters affecting the Property
  • Outgoings and Income of the property
  • Warranty
  • Survival
  • Time is of the essence
  • Assignment
  • Default
  • Non-merger
  • Stamp duty and related costs
  • Disclaimer
  • Guarantee of title
  • Arbitration
  • Termination
  • Legal and other costs
  • General
  • Intention to be bound
  • Schedules
  • Execution