Power of attorney is a legal document or instrument by which a legal person appoints another to act on an for their behalf in any matters including dispositions of land.

A power of attorney in Kenya is used to allow another person to on behalf of the person giving the power of attorney.

Types of power of attorney

1. Sale and transactions of land
2. registration of intellectual property
3. filing of lawsuits.
4. signing off on documents
5. opening of a bank account etc

A power of Attorney can be Specific or General in its nature. When a Power of Attorney is Specific, it is executed only for a particular purpose.

Who can grant the power of attorney?

The power of attorney can only be granted by

1. A person of sound mind.
2. An adult

Requirments for registration of power or attorney

1. The full names and addresses of the donor (the person giving the POA) and the appointed attorney must be stated in the POA
2. The POA must be executed in accordance with the requirements of the law. It must be signed by the donor and the signature must be witnessed by an individual who is not party to the power of attorney. If the donor/grantor is a corporate entity the power must be executed under Seal
3. Powers of Attorney (POA) must be stamped (payment of stamp duty) and registered in Kenya in the Register of Powers of Attorney under the Registration of Documents Act.
4. A power of Attorney can be given to a company i.e. a company can be appointed as an attorney and requisite powers donated to it.
5. Several persons may appoint same attorney/s jointly or separately and several parties may join in one power appointing an attorney for their joint or separate purposes
6. If the POA has been issued by a company, a copy of the Memorandum and Articles of Association of the company and a company resolution authorizing the POA must be presented

Types of power of attorney?

There are generally three types of power of attorney.

1. Special power of attorney – This are limited powers with more or less specific powers.
2. irrevocable – This powers cannot be revoked/terminated unless both the donor and done mutually agree to terminate.
3. General power of attorney - the powers given to the donee are broad, for instance; the power to act on behalf of someone in issues to do with health, finance etc.

Execution and Registration of the Power of Attorney.

After the drafting, execution and Notary of a Power of Attorney, the Registration is done at the lands office under the Registration of Documents registrar,

The power of attorney must be signed and executed by all of the parties consenting to it.
This is done by way of signature or appending a thumb-print or any other mark of evidence of personal acceptance.

Once the POA is done, the executing parties appear before a Notary with a witness and thereafter before a registrar.
once the registrar is satisfied that the donee is entitled to execute the power of attorney, they are granted verification.

What rights and duties does a donor have?

Rights

• To have their orders followed by the donee.
• To have information pertaining to the records of their transactions and accounting shared to them by the donee.
• To terminate the power of attorney at will. This can be done through the Land Registration Act, Form 8.

Duties

• To select an agent to act as their donee
• To decide on the specifications of their power of attorney. This includes the confines of the donee’s authorizations.
• To execute, verify and partake in the process of execution of the power of attorney.
• To pay the stamp duty upon registration of the power of attorney.

What rights and duties does the donee have?

Rights

• To be given specific, general or irrevocable tasks.
• To have power of attorney signed by the donor to ensure it has force of law.
• Capacity to sue on behalf of the donor

Duties

• To act in good faith at all times in the best interest of the donor.
• To keep a record of all transactions that they partake in on behalf of the donor.
• To act within the confines of their duties. This involves following the permissions granted and not acting outside the power of attorney. For example, the power of attorney does not confer on the donor the power of an advocate, so as much as they have capacity to sue, they do not have the duty to represent the donor in court.
• To sue on behalf of the donor.
• To register the power of attorney under the Land Registration Act.

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