Common questions on buying off-plan property in Kenya, and how to protect yourself as a purchaser.
An off-plan purchase is a commitment to buy a property that does not yet exist in its completed form. The buyer contracts with a developer at an agreed price, makes staged payments over the construction period, and receives a completed unit once the development is finished and the necessary occupation certificate has been issued. The appeal is straightforward: off-plan prices are typically set at the start of the development cycle and may be below the market value of a comparable completed unit by the time of handover. The risk is equally clear: the developer may not deliver on time, may deliver a unit that does not match the specification, or in the worst case may become insolvent before the development is finished.
Off-plan sales in Kenya are regulated principally by the Land Act 2012 and the Law of Contract Act, supplemented by the National Construction Authority Act, which requires registration of contractors and approval of construction projects. The Physical and Land Use Planning Act 2019 governs the planning permission process at county level. There is no single statute in Kenya that is specific to off-plan sales in the way that some other jurisdictions have enacted dedicated legislation; the protection available to an off-plan buyer is therefore primarily contractual, which makes the quality of the sale agreement critically important.
Before signing an off-plan sale agreement or paying a reservation deposit, a buyer should confirm that the developer holds clear title to the development site — through an official search at the land registry — and that the title is not subject to any charge or caveat that would prevent subdivision and transfer of individual units. Obtain the developer’s certificate of incorporation, CR12 and audited financial statements where available, and search the Companies Registry for any court orders, charges or winding-up petitions. Where a project is to be financed by a bank, confirm that the development has been approved by the financier and that the lender has a disbursement schedule that is linked to construction milestones.
The sale agreement is the primary document governing the off-plan purchase and should be reviewed by an independent advocate before it is signed. Particular attention should be given to the specification and plan attached to the agreement (to confirm what exactly is being purchased), the payment schedule (to ensure it is linked to construction milestones rather than arbitrary dates), the long-stop completion date and the developer’s obligations if that date is missed, the mechanism for handling variations and the process for snagging and final inspection before handover. An agreement that contains no completion date, no delay remedy and no specific description of the unit is a significant warning sign.
You commit to buy a unit — typically an apartment — before or during construction, paying a deposit and then instalments linked to building milestones. You take possession and title only once the project is complete and the relevant titles are issued.
Delay in completion; abandonment or non-completion; changes to the size, finishes or layout you were promised; the developer’s financial failure; and title not issuing because the developer’s own title or approvals were defective. Off-plan concentrates risk in the developer’s performance, which is why the diligence matters far more than the brochure or the show unit.
There is no dedicated off-plan statute or specialist regulator. The transaction is governed by general contract law, the land statutes, the Sectional Properties Act 2020 for titling of units, and consumer-protection principles. That absence of a bespoke regime is precisely why the contract has to do the heavy lifting on buyer protection.
Confirm the developer holds good title to the land through an official search; check that the development has the required county planning and building approvals and NEMA environmental approval, and that the contractor is registered with the National Construction Authority; review the developer’s track record on previous projects and whether they were delivered on time; and, where the land is charged to a financier, understand exactly how and when your unit will be released from that charge.
Through the structure of the sale agreement. Tie instalments to verified construction milestones rather than calendar dates; negotiate refund or exit rights if milestones slip badly; and, where possible, arrange for payments to be held or staged so they are not simply at the developer’s free disposal. A project-account or escrow-type arrangement, where available, is far safer than paying directly into the developer’s operating account.
This kind of escrow account for off-plan property in Kenya, where a bank or an independent stakeholder holds funds and releases them against verified milestones, is the single strongest protection a buyer can negotiate, and we ask for it as standard when we review off-plan sale agreements.
For multi-unit developments, individual ownership is typically granted as a sectional title under the Sectional Properties Act 2020 and the Sectional Properties Regulations 2021, which allow each unit to hold its own title with shared ownership of the common areas managed through a corporation. Older developments may still use long-term subleases pending conversion. The agreement should commit the developer to procure and deliver your sectional title.
A sectional title is the form of ownership the Sectional Properties Act 2020 created for individual units in a multi-unit development such as an apartment block. It lets a buyer hold a registered title to their specific unit while owning an undivided share of the common areas, such as corridors, lifts and parking, through a corporation made up of all the unit owners. Before the Act, individual apartment owners typically held long leases rather than a title of their own, which is why confirming that a development will deliver a proper sectional title, rather than a long sublease, is a core part of off-plan due diligence. For more detail, see our guide to sectional titles in Kenya.
At minimum: the price and a payment schedule tied to milestones; the unit’s specification and floor area; the completion date and clear remedies for delay; confirmation of the developer’s title and approvals; the mechanism and timeline for issuing your title; refund and termination rights if the project fails; provisions on snagging and defects; and a dispute-resolution clause.
Only to the extent your agreement provides for it. Recovering money from a stalled or insolvent developer without clear contractual refund and termination rights is difficult and slow, which is exactly why those clauses must be negotiated before signing rather than assumed.
Your remedy depends on the contract. A well-drafted agreement fixes the specification and floor area and gives you rights — price adjustment, rectification or exit — if the developer delivers something materially different. Without those terms, a buyer’s position is weak, so the specification should be pinned down in writing, not left to the brochure.
The headline price is often lower and payment is spread over construction, but the discount is compensation for taking construction and completion risk. It should be weighed against that risk, not treated as free value.
Yes — the deposit stage is when your protections are set or lost. An advocate verifies the developer’s title and approvals, confirms how your title will issue, and negotiates the agreement so your money and your unit are protected before you commit a shilling.
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Buying a completed property instead? See our Buying Property in Kenya: FAQ, our step-by-step Land Buying in Kenya: Title Search, Due Diligence & Transfer Process guide, our Conveyancing in Kenya: Process, Timeline & Fees guide, our Stamp Duty on Property in Kenya guide, and our guide to sectional titles if you are buying an apartment.
Our real estate team advises off-plan purchasers on developer due diligence, sale agreements, deposits and purchaser protections.
For any enquiries on this or any other matter, do not hesitate to contact us via email at [email protected].
Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship. Nothing in this article is intended to guarantee, warranty, or predict the outcome of a particular case and should not be construed as such a guarantee, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.
