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Top Arbitrators in Africa: Arthur Igeria, FCIArb, CPS, MBA (Kenya)

Introduction

As outgoing Chairman of Nairobi Centre of International Arbitration (NCIA), Arthur Igeria’s leadership has been credited with changing the institutional framework for international arbitration in East Africa. Together with his Board, he led NCIA in entrenching itself as the regional leader in International Arbitration.

There are few ADR Practitioners across Africa who match the expertise, experience and exposure of Senior Advocate and Arbitrator Arthur Igeria in Alternative Dispute resolution especially International Arbitration. Indeed, his passion for ADR saw him appointed by H.E. the President of the Republic of Kenya as the inaugural Chairperson of Nairobi Centre for International Arbitration. Today, he is recognized for leading the team that built Nairobi Centre for International Arbitration (NCIA) from scratch including hiring key staff, procuring its facilities, empaneling arbitrators and mediators, building partnership with key stakeholders to opening the doors of NCIA to claimant and their representatives refer their disputes for resolution.

As the outgoing Chairman of NCIA, Arthur’s leadership has been credited with changing the institutional framework for international arbitration in East Africa. Together with his Board, he led NCIA in entrenching itself as the regional leader in International Arbitration both in thought leadership, quality of panels and available training programmes and faculty.  He has also spearheaded invaluable partnerships between NCIA and regional and international arbitration institutions. One of Arthur’s enduring legacies as Chairman of NCIA is midwifing the setting of China-Africa Joint Arbitration Centre in Nairobi (Nairobi CAJAC) including the negation of the agreement between the Beijing Arbitration Commission and the Nairobi Centre for International Arbitration (NCIA).

Partnership & Global Collaborations

Admitted to the bar in 1991, Arthur boasts three decades of good standing in legal practice as an accomplished and highly-regarded advocate. He is the Senior Partner at Igeria and Ngugi Advocates (I&N), a IFLR1000 Recognized Firm in Finance, Corporate, Infrastructure Projects and Commercial Law and the Member Law Firm of Mackrell International in Kenya. The firm is ranked in the Current (31st) Edition of IFLR1000 as a Notable Firm in Finance and Corporate Law in Kenya and among the top 31 law firms in the practice area. I&N is also ranked among Kenya’s top 19 law firms in Projects Development” Infrastructure Category and recognized as one of the country’s notable law firms in the area. As Senior Partner of Igeria & Ngugi, Arthur is noted as an “experienced owner with a demonstrated history of working in the legal services industry and strong entrepreneurship and professional skills.”

Practice Areas & Notable Assignments

Arthur’s core Practice Areas in law include Commercial Law, Conveyance and Property Law, International Law and Probate & Administration Law. One of his notable assignments was advising a buyer and financier on the buy-out of shares from owners of a company whose principle asset was a shopping mall. He assisted in the registration and perfection of the security documentation which included share transfers, lien, debenture and charge over the free property. He has also handled numerous the setup of Family Trusts, Succession arbitration and Will & Testament documents, for various private clients. He also serves as company Secretary for numerous companies, both publicly listed and private entities.

As an Arbitrator and Fellow of the Chartered Institute of Arbitrators (FCIArb), Arthur runs an active Arbitration and Mediation Practice and has handled numerous cases as Party Representative, Party-Appointed Arbitrator, Sole Arbitrator, Member of Arbitration Tribunal or Presiding Arbitrator. He is acknowledged as highly skilled in Alternative Dispute Resolution (ADR) mechanisms and has a good track record in arbitration and mediation matters of resolving cases that had lagged in courtrooms for many years. He is an accredited Arbitrator and Mediator by the Chartered Institute of Arbitrators (CIArb) and as a Mediator by the Mediation Training Institute (MTI) Kenya, the Strathmore Dispute Resolution Centre (SDRC), and the Mediation Accreditation Committee of the High Court of Kenya. He is in the Panel of Arbitrators and Mediators of Nairobi Centre of International Arbitration (NCIA) but cannot be empaneled during his tenure as Director.

Leadership & Membership

Arthur is also actively involved in training, tutoring and mentoring on Leadership, ADR and Arbitration, Trial Advocacy and Corporate Governance. He is a Tutor on ADR with the Chartered Institute of Arbitrators (Kenya Chapter), the Mediation Training Institute (Kenya) and the Strathmore Dispute Resolution Centre (SDRC).  He is deeply involved in Corporate Governance issues being a Director and Trainer at the Centre for Corporate Governance (CCG). He is keenly involved in leadership Coaching and is a Certified Executive Leadership Coach (CELC)- International Coaching Federation. He is also Faculty Member of the Trial Advocacy Training Institute (TATI). In addition, Arthur is an accredited Governance Auditor and Certified Secretary (CPS) and is routinely contacted to conduct Corporate Governance Audits.

He is also a sought-after speaker and has presented numerous papers and given several opening speeches on arbitration and ADR. He made a presentation to LSK Members on “The Advocate’s Role in Arbitration & Litigation,” gave opening speech at ICSID’s 50th Anniversary Conference co-organized by Nairobi Centre for International Arbitration (“NCIA”) on “ICSID Practice and Procedure,” held in Nairobi, Kenya in 2016 and at the Inaugural Conference of China-Africa Joint Arbitration Centre (CAJAC BEIJING) and CAJAC NAIROBI in Beijing in March 2017. In June 2018, Arthur gave a keynote speech at the 1st NCIA ADR National Conference and August 2021, he presented on “Dispute Resolution System and Arbitration System in Africa: Promoting ADR and Challenges in Kenya” at a Kobe University Law School (Japan) event.

Education

Arthur graduated in 1989 from the University of Nairobi with a Bachelor of Laws degree (LL.B) and obtained a Post-Graduate Diploma in Law from Kenya School of Law. He holds a Global Executive MBA (GEMBA) from the acclaimed United States International University (USIU) and has attended numerous courses and trainings in Alternative Dispute Resolution and Corporate Governance. He is a Member of Chartered Institute of Arbitrators Kenya Branch Committee, Member of the Institute of Directors (IOD), Kenya, Law Society of Kenya (LSK), East Africa Law Society (EALS), Institute of Certified Public Secretaries (K) (ICPSK), Chartered Institute of Arbitrators (CIArb) and Mediation Training Institute (MTI) Kenya. In addition, Arthur is listed as counsel entitled to practice at the International Criminal Court, (ICC) situated at The Hague, Netherlands. He is also a member of ICPAK Disciplinary Committee.

For More info Please contact

Avenue 5 Building, 4th Floor, Rose Avenue, Off-Lenana Road
P.O. Box 60635 – 00200, Nairobi.

020 675 1221/ 020 221 1100 / 0110 003344 / 0780 003344

arthur.igeria@attorneysafrica.com | info@attorneysafrica.com| www.attorneysafrica.com

Mon to Fri – 8:00am to 5:00pm. Holidays and Weekends closed

Reference: https://thearbitrator.africa/2021/10/08/top-arbitrator-arthur-igeria-ke/

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Rectifying Title Documents: The law and procedure on rectification

There are various circumstances that give rise to the need to rectify title documents and the register. It could be that there is an error or omission on formal details such as the address or correct name of the owner of the property, or to remove the name of deceased joint owner. In other situations, the court could order rectification of the register where the registration of a transfer or other disposition is found to be void. Kenyan land laws provide for the procedure to be followed when making such rectifications.

Applying to the Registrar

A land owner can rectify any inaccurate information on their title documents as a result of errors, omissions or a change of name and/or address by making an application to the Registrar in the prescribed form. In their application, they need to give details of the rectifications they want to make, the grounds for rectification and give proof of evidencing the grounds given. If the property is co-owned, the application should be accompanied with their consent as well.[1]

Upon successful application, the Registrar will rectify the register as required.

Rectification by Notice

The Registrar can rectify the register if upon resurvey, the area or dimensions show in the register is found to be incorrect,[2] and where they find that the title document was obtained by fraud.[3] The Registrar will issue a notice in the prescribed form which shall be served upon the affected parties. In the case of a resurvey, the notice will indicate the rectification being made. The Registrar will also place a restriction prohibiting further dealings on the resurveyed land pending the expiration of the notice issued.[4]

Where the notice concerns a case of fraud, the notice shall inform the concerned parties of the grounds for rectification and set a date for hearing, allowing the affected parties to present any documents or other information that will assist rectification of the register. In the absence of any party attending such a hearing, the Registrar will order rectification of the register after the expiry of ninety days.[5]

During such hearing, the Registrar can issue summons to the affected parties directing them to appear at the hearing.[6] At the conclusion of the hearing and determination of the matter the Registrar will issue an order of rectification if deemed necessary. The fraudulently title documents will be taken and destroyed.

Court Orders

The final instance where title documents can be rectified, is by order of the Court. This often occurs where the court finds that a registration was made, obtained or omitted by fraud or mistake.[7] In such an instance, the successful litigant will apply to the Registrar for rectification in the prescribed form, attaching the decree with the order for rectification.[8]

With proper guidance, the process of rectification can be fairly simple. If you have matter on the same, you can reach out to us for assistance.

For more information, please contact:

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com


[1] Land Registration Act (2012), Section 79(1)

[2] Land Registration Act (2012), Section 79 (1)(c)

[3] Land Registration Act (2012), Section 79 (2)

[4] Form LRA 90

[5] Form LRA 91

[6] Land Registration (General) Regulations, Clause 93(2)

[7] Land Registration Act (2012), Section 80(1)

[8] Land Registration (General) Regulations, Clause 94

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Reasons why you need to carry out proper Due diligence before executing a Land Sale agreement or Transfer

A title deed/ certificate of title is recognized as the main way of proving ownership of land in Kenya.

The Kenyan legal system has adopted the Torrens System [FA1] which necessitates the land register to have the accurate record of all current interests ( E.g partial owner, tenant, licensee, collecting profits from activities in the land , e.t.c) in land.in summation, the registered land owner acquires conclusive title over the land, which can only be defeated by proof of fraud or misrepresentation that the buyer is party to.[1]

The Torrens system ensures that only the interests of a person who has acquired title in a legal manner are protected and puts in place parameters to solely  protect the proprietary interests of land owners. However, this does not stop phonies from conning innocent potential land owners into purchasing illegally or corruptly acquired land.

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Section 26 of the Land Registration Act clearly states that a certificate of title is prima facie proof that person named as proprietor is the absolute and indefeasible owner of the land except where the land was acquired through fraud or misrepresentation which the person is proved to be a party, or the certificate of title was acquired un-procedurally, illegally or through a corrupt scheme.

So how are innocent parties (bona fide buyers without notice )protected by the law?[FA2] 

For one to claim that they were a bona fide buyer without notice, they need to show:

  • that they honestly bought the property in exchange of some consideration, and
  • that they were not aware of any defects.

In the landmark case Katende v Haridar & Company Limited the court held that for a purchaser to successfully rely on the bona fide doctrine, he must prove that:

  1. He holds a certificate of title
  2. He purchased the property in good faith
  3. He had no knowledge of the fraud
  4. He purchased for valuable consideration
  5. The vendors had apparent valid title
  6. He purchased without notice of any fraud; and
  7. He was not party to any fraud.

The courts have held the position that proving these elements are a question of fact and not law. The innocent purchaser therefore needs to show evidence to the effect that they compensated the seller and that they were not aware of any fraud after carrying their proper due diligence. In order to prove the first, the purchaser needs to show

  • proof of payment on the basis of an agreement of sale between the seller and purchaser.

For the final part,

  • the innocent purchaser needs to show that they carried out an official search at the registry showing the seller as the registered proprietor of the land, and that they followed the required process to have their interests registered.

In fact, in David Peterson Kiengo & 2 Others v Kairuki Thuo, the court found that a purchaser is not required to do anything more than search the official register to establish ownership. The rationale is that, in part, the Torrens System is a guarantee that the land register is an accurate of land ownership and in the event that there is an error on it, the land owner holds a claim against the State and not a bon a fide purchaser without notice.

In the event an innocent buyer effectively proves that they are a bona fide purchaser, then the Court can uphold their claim over the land despite the impropriety relieve them from any   action against the State for recovery of damages and not against the innocent buyer.

Given the fact that this can result in an unfair result to the original owners of the land, Courts are hesitant to make such a finding. The innocent buyer is often put to strict proof and failure to show proper documentary evidence of the transfer process could lead to their ownership rights being extinguished and the courts ordering rectification of the land register as per Section 80 of the Land Registration Act. In such instances, the innocent buyer’s respite lies in instituting a claim against the fraudulent seller for fraud or misrepresentation under contract law for recovery of damages. [FA3] This often proves difficult as it becomes difficult to trace the fraudsters.

It is our view that the only sure way to curb against falling victim to such fraudulent schemes is ensuring that proper due diligence is carried out prior to executing any sale agreement or transfer. We cannot overemphasise the importance of seeking proper legal services prior to making any purchase to safeguard yourself from such risks.

For more information, please contact

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com


[1] Charles Karathe Kiarie & 2 Others –vs- Administrators of Estate of John Wallance Muthare (deceased) & 5 others


 [FA1]Torrens system

 [FA2]Has the meaning changed?

 [FA3]Add hyperlink for Contract law for recovery of damages

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Disposing Inherited Property in Kenya

Introduction

The death of a family member often comes with its fair share of tragedy, and one of the most common issues family members are left grappling with, is how to dispose of the deceased’s property. This is partially because when it comes to succession matters, the law is technical as to when and how title over property transmits from the deceased to a beneficiary of their estate. Consequently, in ensuring that the appropriate process is followed, it is important not only for a person planning on disposing of the inherited property but also for the person intending on acquiring property that is subject to a succession matter or dispute to know the correct procedure for the transmission of title to the property.

Grant of Representation

Only a personal representative or executor in the even the deceased left a valid will, has the authority to dispose of the deceased’s real property.[1] It is therefore important for the administrator of the estate to obtain a grant of representation. If the deceased left a will, the executor shall apply to the court for the grant through a petition for grant of probate. However, if the deceased does not have a valid will, or has a will but did not appoint an executor, the proposed administrator will apply for a grant through a grant of letters of administration.[2]Once the administrator has the grant, he should apply to be registered as an administrator of the deceased’s estate.[3] 

A person who sells any of the deceased’s property before obtaining a grant will be found guilty of intermeddling which is a punishable offence.[4] Further, the transfer of a deceased person’s property will only be registered once the grant of probate or letters of administration has been confirmed respectively.[5] It is important to note, that any dealings with the deceased property such as among others the sale, transfer, or lease without prior confirmation of grant will be void.

Registering the Disposition

An administrator having confirmed the grant can proceed to have registered, any transfer, discharge of charge, and surrender of the lease relating to the deceased’s property.[6] The administrator can therefore proceed to dispose of the deceased’s property either by distributing it to the beneficiaries or by selling the property to a third party.

The administrator should then submit the transfer in the prescribed form together with: a copy of the grant of letter of administration or grant of probate duly certified by the court; a copy of the certificate of confirmation of grant of probate or grant of letters of administration duly certified by the court; the certificate of lease or title over the land; land rates clearance certificates; land rent clearance certificate where applicable; any consent required for the transfer; and any other legally required document.[7]

This process is important in ensuring that a beneficiary or purchaser acquires valid indefeasible title over the property. Nevertheless, if a person inherits property from a close relative or, the transferor of the property, unfortunately, passes away before the sale is completed, it would be prudent to seek proper legal advice to ensure that you can acquire a valid title over the property.

For more information, please contact:

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com


[1] Land Registration Act, Section 61(1)

[2] Law of Succession Act (2012), Section 53

[3] Land Registration (General) Regulations LN No. 278 of 2017, Clause 56

[4] Law of Succession Act (2012), Section 45

[5] Land Registration (General) Regulations LN No. 278 of 2017, Clause 53

[6] Land Registration Act, Section 61(2)

[7] Land Registration (General) Regulations LN No. 278 of 2017, Clause 57 and 58

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Capital Gains Tax

Capital gains tax (CGT) was re-introduced in Kenya in 2015 through the 2014 Finance Act that amended the Income Tax Act. This is an income tax payable on gain/profit made from the transfer of capital assets which are: property, investment shares and marketable securities. It is charged and computed as per the Eight Schedule of the Income Tax Act.

Background

Capital gains tax was initially introduced in Kenya in 1975 and suspended in 1985. The main reason for the suspension was to encourage the growth in the mining sector, real estate market and deepening local participation in capital markets. This move seems to have worked with and is linked to the success of the National Securities Exchange being a high performer continentally, and the growth of Kenya real estate. The action to re-introduce this tax in 2014 was influenced by the need widen the tax net and subsequently increase revenue collection by the government. (KPMG Kenya, 2015)

Computation of Capital Gains Tax

The taxable gains are computed on the amount by which the transfer value of the property exceeds the adjusted cost of the property simply referred to as the Net Gain. The net gain is taxed at a flat rate of 5%. As such the amount payable is 5% of Net Gain;

  • Transfer value is the amount of or value of the consideration or compensation of the transfer of the property less incidental costs
  • Adjusted cost is the sum of the cost of the cost of acquisition plus the costs spent developing or preserving the property and the incidental costs of acquiring the property. In this regard, the deduction of costs of property does not apply in the case of securities listed on any securities exchange approved under the Capital Markets Act.
  • Incidental costs are the costs allowable to be included in the calculation of net capital gain. They include the professional fees of legal advisers, surveyor, valuers or agents engaged during the transfer; the costs of the transfer such as stamp duty and registration fees; costs of advertising to find a buyer/seller; and any other costs allowed by the Commissioner.

The Payee

Capital gains tax is paid by the seller or transferor once the transfer is complete. This is different from the payment of Stamp Duty, which is paid before registration of the transfer or transaction at the cost of the buyer or transferee. In Kenya Revenue Authority v Kenya Bankers Associations [2020]eKLR the Judge recognized that it is only possible to pay the Capital Gains Tax of a property after the transfer has been completed and registered, and not before the registration of the transfer, together with the stamp duty for registration of the transfer documents. The rationale for this was that Capital gains tax is a tax on the gains made on the transfer of land, which can only be determined when the transfer is completed, at which point the payee will have received full payment of the transfer. The tax cannot be paid on the assumption that the consideration for the transfer is already known to the payee, hence the tax payable can only be computed before completion. The gains have to be made first for the tax to be levied.

Exemptions

It is important to note that any transfer of property is subject to taxation regardless of whether any payment or profit was made from the transfer. This includes selling, gifting, auctioning property held as security and even loss of property. However, not every transfer of property is subject to this tax. There are certain transactions that are exempt from the capital gains tax including: property that is being transferred as part of the administration of a deceased person’s property; transfer of property between immediate family or spouses; vesting of property to an administrator, executor or trustee; transmission of property to a liquidator; transfer of property to secure a loan or debt, or a reconveyance of property held as security by the creditor to a borrower; and transfer of machinery just to mention a few.

In order to ascertain whether a transfer is subject to capital gains tax, it is important to seek proper legal advice.

For more information, please contact

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com

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