What happened
A woman in Kisii agreed to sell her land for Kshs 3.2 million. At signing, she received a small deposit. The remainder was to come through a bank loan the buyer was arranging. The buyer began depositing sums into her personal bank account to show his lender that payments were progressing. Each time, she withdrew the money and returned it to him at his request, trusting that this was simply part of how the loan process worked.
When he told her the balance was on its way, she released her original title deed and signed a transfer form and Land Control Board consent — documents brought to her without her being told what she was signing. By the time she went to check on the land, it had already been registered in the buyer's name. The land had also been charged to the bank that had financed him. She had not received the full purchase price, and she had no clear record of what had actually been paid, when, or by whom — because the money had moved through her own account and back out again on the buyer's instructions.
She sued, alleging fraud. She said her son had helped mislead her into releasing the title deed. She said her thumbprint on the transfer form had been forged and that she had never personally appeared before the Land Control Board. None of these claims could be proved in court. She had not called her son as a witness, had not obtained expert evidence on the thumbprint, and had not retrieved the Board's own records — which existed and were only a year old. The court found that her case failed because her allegations could not be proven.
So what should happen when a buyer needs a loan?
Bank-financed land sales always create the same standoff. The seller will not release the original title deed until paid. The bank will not release the loan until the title is registered in the buyer's name and its charge is in place. Someone has to move first. In this transaction, there were no measures in place to protect the interests of either party.
Kenyan conveyancing practice has an established way of resolving this. It is called a professional undertaking. Before any document changes hands, the bank's advocate writes to the seller's advocate and commits, in writing, that the original title deed and signed transfer forms will be used only to complete registration of the buyer's ownership and the bank's charge — and that the moment registration is confirmed, the loan proceeds will be paid directly to the seller or the seller's advocate, not to the buyer.
This works because the undertaking binds the advocate who signs it in a personal capacity. An advocate who takes the title, registers the charge, and then fails to release the funds faces disciplinary proceedings before the Law Society of Kenya and can be sued directly and swiftly — without the seller having to prove fraud the way this plaintiff was required to, and failed.
Had the sale gone through this structure, the seller or her own advocate would have received the deposit and the eventual loan payout. Her own advocate would have supervised the signing of the transfer form and the Land Control Board consent, rather than a relative of the buyer doing so without her knowledge of what she was signing.
The practical instruction
If your buyer is financing the purchase through a bank loan, instruct your advocate to secure a professional undertaking from the bank's advocate before you release anything. Do not part with your original title deed until that undertaking is signed and in your advocate's hands.