Navigating Legal Risks in Sectional Property Developments in Kenya

 Landmark Sectional Property Ruling – Developers Take Note

Rehman v Luhar (Environment & Land Case 10 of 2016) [2022] KEELC 13714 (KLR)

This pivotal ruling underscores heightened judicial scrutiny on compliance with Kenya’s Sectional Properties Act and land use laws.

Case Summary

Mr. Khalid Hussein Rehman purchased three apartments in a nine-unit development in Nyali, Mombasa. Mr. Ahmed Jan Mohamed Suleiman Luhar, the developer and owner of two units in Block B, constructed an additional rooftop apartment without obtaining the necessary regulatory approvals or the consent of other unit owners.

The construction lacked valid licenses from NEMA and NCA, and county approval was obtained only after works had commenced. The Defendant also failed to establish a management corporation as required by law.

Key Legal Findings

1. Sectional Properties Act Applied: Despite the property being under the repealed Registration of Titles Act, the court applied the 1987 and 2020 Sectional Properties Acts to protect purchasers and regulate shared property.
2. Breach of Disclosure: The Defendant violated Section 43 by failing to provide sectional plans. The rooftop unit was not part of the original approved development.
3. Unapproved Construction: Works commenced without valid approvals from NEMA and NCA.
4. Lack of Management Corporation: No body corporate had been created to manage the common property.
5. Infringement on Common Areas: The rooftop unit altered the approved design and encroached on common property rights.

Final Orders by the Court

In line with the objectives of the Sectional Properties Act and related provisions of the Land Act, 2012—including Sections 38 and 39, which empower courts to enforce land use conditions and uphold the sanctity of registered rights—the Environment and Land Court issued the following orders:

• The rooftop unit was declared unlawful.
• A permanent injunction was issued to restrain the Defendant from undertaking any further unauthorized developments.
• The Defendant was ordered to demolish the illegal rooftop structure and ensure full compliance with the statutory framework, including relevant environmental and planning approvals.

These orders reinforce the obligation of developers to adhere strictly to approved development plans, legal procedures, and statutory requirements.

Buyer Protections under the Sectional Properties Act

• Mandatory Disclosure: Buyers must be provided with sectional plans, titles, by-laws, and details of any charges.
• Title Clarity: Each buyer receives a certificate of title or lease inclusive of their proportional interest in common areas.
• Implied Easements: Owners enjoy statutory rights for access, services, and support.
• By-Laws and Governance: Enforceable rules manage unit and common area usage.
• Information Rights: Buyers can request financial and management records.
• Statutory Offences: Non-compliance attracts penalties including fines and imprisonment.

These protections improve legal certainty, buyer confidence, and development accountability.

Marketing Integrity & Legal Exposure

Developers and estate agents must ensure their marketing materials are factual and not misleading. Misstatements regarding unit size, layout, amenities, ownership, or approvals may give rise to civil liability. Misrepresentation in real estate occurs in three forms:

• Innocent Misrepresentation: A false statement made unknowingly. It may still allow the buyer to cancel the contract.
• Negligent Misrepresentation: A carelessly made false statement without reasonable verification. It may attract claims for damages.
• Fraudulent Misrepresentation: A knowingly false or recklessly indifferent statement made to induce purchase. It may result in significant financial, reputational, or even criminal consequences.

Any inconsistencies between marketing claims and actual legal or structural realities of a development may expose professionals to litigation, regulatory sanctions, or loss of public trust.

Key Takeaways for Developers & Owners

• Establish management corporations as required.
• Provide accurate and full disclosure to all unit purchasers.
• Refrain from unauthorized variations to approved development plans.
• Maintain integrity in all marketing and promotional materials.

Misleading information—whether innocent, negligent, or fraudulent—can trigger serious legal and commercial repercussions.

For legal advisory on sectional titles, real estate compliance, or dispute resolution, please contact:

CM Advocates LLP

Head Office Nairobi
I&M Bank House, 7th Floor, 2nd Ngong Avenue
T: +254 20 2210978 / +254 716 209673
E: law@cmadvocates.com or cmaina@cmadvocates.com 

Mombasa Office
Links Plaza, 4th Floor, Links Road, Nyali
T: +254 41 447 0758 / +254 41 447 0548
C: +254 791 649913
E: mombasaoffice@cmadvocates.com