What Buyers Should Know Before Signing
Buying property off-plan means paying for a unit before it is built. In exchange for early pricing and flexible payment plans, the buyer takes on risks that do not arise when buying a completed, registered property.
The key question is not only "will I eventually get a title?" It is: what exactly is the developer contractually required to deliver, by when, and what happens if they don't?
1. Know exactly what you are buying
The sale agreement should identify the unit precisely: the development, block, floor, unit size, layout, parking, storage, and finishes. A brochure showing a pool, gym, or landscaped garden does not obligate the developer to deliver them, only the contract does.
If a feature matters to your decision to buy, it must be written into the agreement, along with what happens if it is not delivered.
2. Verify the land
Confirm who owns the land, its tenure, and whether it carries any charges, cautions, or restrictions. Establish whether the developer is the registered owner, or whether they are developing under an arrangement with the landowner (such as a joint venture). A sales office and marketing team do not prove legal authority to sell.
3. Check the developer's track record
Look into the developer's corporate structure, financing, previous projects, and whether they have completed comparable developments. This tells you the commercial reality behind the promise.
4. Confirm regulatory approvals
The National Construction Authority requires construction projects to be registered, with approved architectural and structural drawings and county planning approval among the requirements. The NCA also maintains a public register of approved projects, searchable by project ID or developer name. Depending on the project, NEMA and utility approvals may also apply. Construction having started is not proof that every required approval is in place.
5. Understand the ownership structure
The Sectional Properties Act, 2020 governs apartments and other sectional units, providing for individual ownership of units and common ownership of shared areas. Section 43 requires a developer to give a purchaser specified documents before selling a unit — including the purchase agreement, applicable by-laws, the title or lease for the land, details of any charges affecting the unit, and the sectional plan.
Before signing, understand how the unit will be owned, what counts as common property, how the development will be managed, and how service charges will work.
6. The completion clause
Establish the completion date, whether and how it can be extended, how long an extension can last, whether you are entitled to notice, and your rights if the developer misses the extended date — including whether you can terminate and get a refund. A clause giving the developer unlimited discretion to extend completion shifts significant risk onto the buyer.
7. Read the force majeure clause carefully
Some developer-drafted force majeure clauses go beyond genuine unforeseeable events to also cover currency movements, labour shortages, or rising construction costs. This affects whether a delay is treated as a breach, an excused delay, or grounds to extend completion — so it needs to be understood before signing, not after a delay occurs.
8. Know where your money goes
Understand the deposit amount, the payment schedule and its triggers, who holds the funds, when they are released to the developer, and what happens to money already paid if the project stalls or the agreement is terminated. Where possible, consider escrow arrangements or completion guarantees as added protection.
9. Put every important promise in writing
Marketing materials influence a buyer's decision, but they are not automatically part of the contract. If a pool, clubhouse, or specific finish matters to you, it needs to appear in the sale agreement itself.
10. Ensure the agreement is properly executed
Section 38 of the Land Act requires contracts for the disposition of an interest in land to be in writing, signed by the parties, with signatures attested by a witness present at signing. Kenyan courts continue to enforce this requirement strictly.
11. Address changes to the development
The agreement should state whether the developer can alter the design, unit dimensions, finishes, or common areas, whether your consent is required for material changes, and what remedy you have if a change affects you — including a possible right to terminate.
12. Address developer default
Before paying a deposit, confirm what happens if the developer fails to complete the project. Depending on the agreement, protections may include termination rights, refunds with interest, completion guarantees, escrow arrangements, a long-stop completion date, and a clear dispute resolution mechanism.
13. Special note for diaspora and foreign buyers
Buyers abroad often rely entirely on emails, brochures, and virtual tours without inspecting the property in person, which increases risk. Foreign purchasers should also note that under Article 65 of the Constitution, a non-citizen may only hold land on leasehold tenure, for a term not exceeding 99 years. An advocate can conduct due diligence, review the sale agreement, and handle the transaction through to completion and transfer on the buyer's behalf.
Checklist before you sign
The land — Who owns it? Has a search been done? Are there charges or restrictions? Does the developer have authority to sell?
The developer — Who are they? What is their track record? How is the project financed?
The development — Are the approvals in place? Is it registered with the NCA? What is the sectional ownership structure?
The unit — Is it clearly described? Is parking included? Are the advertised amenities in the contract?
The agreement — What is the completion date and what extensions apply? What is covered by force majeure? What happens on developer default? How is the price paid, and what happens to it if the deal falls through?
How We Can Help
Wanjiru Nyaguthi & Company Advocates assists purchasers with title and developer due diligence, review and negotiation of sale agreements and conveyancing through to completion and transfer.
