ADVOKS GLOBAL · KENYA
Land Act
98. Powers incidental to the power of sale
Edition: 2025-11-04 · In force
98. Powers incidental to the power of sale
(1)If a chargee or a receiver becomes entitled to exercise the power of sale, that sale may be—(a)of the whole or part of the charged land;(b)subject to or free of any charge or other encumbrance or charge having priority to the chargee’s charge;(c)by way of subdivision or otherwise;(d)by private contract at market value;(e)public auction with reserve price;(f)for a purchase price payable in one sum or by installments; or(g)subject to any other conditions that the chargee shall think fit, having due regard to the duty imposed by section 97(1).(2)If a sale is to proceed by public auction, it shall be the duty of the chargee to ensure that the sale is publicly advertised in such a manner and form as to bring it to the attention of persons likely to be interested in bidding for the charged land and that the provisions relating to auctions and tenders for land are, as near as may be, followed in respect of that sale.(3)A transfer of the charged land by a chargee in exercise of the power of sale shall be made in the prescribed form and the Registrar shall accept it as sufficient evidence that the power has been duly exercised.(4)Upon registration of the land or lease or other interest in land sold and transferred by the chargee the interest of the chargor as described therein shall pass to and vest in the purchaser free of all liability on account of the charge, or on account of any other charge or encumbrance to which the charge has priority, other than a lease easement to which the chargee had consented in writing.(5)In a sale by a private contract, the chargee shall be entitled to rely on a valuation carried out by a valuer who is registered with the institute of Surveyors of Kenya and the report shall in the absence of a manifest error, be conclusive in relation to the market price:Provided that the valuation report shall at the time of sale be not more than six months old.(6)A transfer by charge shall have priority over all entries made after the transfer of the charge undertaking the sale and the chargee shall stand discharged upon the registration of the transfer.(7)Where it is noted in the register that a second charge by the chargor ranks pari passu to the charge submitting the transfer, the instrument of transfer by the charge shall include a duly executed consent of the charge with a pari passu charge consenting to the sale.(8)For the purposes of this section, land, a lease, or a charge shall be deemed to have been sold when a bid has been accepted at the auction sale.(9)If at any time the charger is entitled to and wishes to repay the money secured by the charge, and the charge is absent, cannot be found or if the registrar is satisfied that the charge cannot be discharged otherwise, the chargor may deposit the amount due with the Court, in trust, for the person entitled to the money, and after which the obligations of the charger under the charge shall cease.(10)Upon the deposit referred to in subsection (9), the Registrar shall cancel the registration of the charge and the Court shall pay the amount deposited to the chargee if the charge applies for it within six years of the deposit, and where the chargee does not apply for the amount within the stated period, it shall be deposited with the Unclaimed Financial Assets Authority as an unclaimed asset.