In Kenya, legal representation often encounters issues like decision-making delays and authority confusion, especially when clear boundaries are not established. Obtaining a power of attorney is crucial as it provides a clear framework for authority, helping to address these challenges effectively.
A power of attorney is a legal document that authorizes one person to act on another’s behalf in various matters, including land transactions. In Kenya, this document enables an individual to delegate authority to someone else to manage their affairs.
In Kenya, a power of attorney can be utilized for the following purposes:
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 either specific or general. A specific power of attorney is designed for a particular purpose and is limited to that specific task or transaction.
The power of attorney can only be granted by an adult and he/she must be a person of sound mind.
To obtain a power of attorney document, several requirements must be met during registration to ensure a smooth process:
1. Registration Form
A completed power of attorney registration form detailing the authority being granted and the identities of the parties involved must be submitted. It should include the full names and addresses of the donor (the person giving the POA) and the appointed attorney.
Sometimes the power of attorney is granted to a company ,which can be appointed as an attorney and requisite powers donated to it.
In other instances, 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.
If an entity such as a company issues a power of attorney, you need to provide a copy of the company’s Memorandum and Articles of Association, as well as a company resolution that approves the power of attorney.
The key is to include all necessary information in the registration form to prevent any legal loopholes.
2. Identification Documents
Valid identification documents for both the principal and the agent, such as ID cards or passports should be provided during the registration to aid in verification.
3. Witnesses
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. The witness is crucial as he/she may need to sign and provide their details as well.
4. Legal Practitioner’s Input
Depending on its nature, the power of attorney may need to be prepared or reviewed by a legal practitioner.
5. Payment of Fees
In Kenya, the cost of registering a power of attorney varies based on the type of power of attorney and the specific registering authority. Typically, registration fees range from Ksh 500 to Ksh 1,500, but it is advisable to check with the relevant office for the exact amount.
You can register a power of attorney at the Lands Office or the relevant office under the Registrar of Documents. For further details, visit the Ministry of Lands and Physical Planning or consult a legal professional for guidance on the registration process and fees.
With that in mind, there are generally three types of power of attorney which include:
1. Special power of attorney – These are limited powers with more or less specific powers.
2. Irrevocable – These 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
Once a power of attorney has been drafted, executed, and notarized, it must be registered at the Lands Office with the Registrar of Documents. Notarization is by a person authorized by law to witness the signing of important documents, and certify the authenticity of signatures.
The power of attorney must be signed and executed by all parties involved who consent to it. This is accomplished through a signature, thumbprint, or other mark indicating personal acceptance. After completing the power of attorney, the parties involved must appear before a notary with a witness and then before a registrar. Once the registrar confirms that the donee is authorized to execute the power of attorney, they provide verification.
An authority donor has the right to:
- 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.
He/she has the duty to:
- 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.
- To pay for registration fees.
A donee in the POA has the right to:
- 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
He/she has the duty to:
- 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 entails adhering to the permissions specified in the power of attorney and not exceeding its authority. For instance, a power of attorney does not grant the donor the role of an advocate, so while they may have the capacity to initiate a lawsuit, they are not responsible for representing the donor in court.
- To sue on behalf of the donor.
- To register the power of attorney under the Land Registration Act.
If you are considering pursuing power of attorney, it is crucial to carefully select a trustworthy and reliable person to act on your behalf, ensure that all legal documents are drafted accurately and reflect your intentions. It is best to consult with a legal professional to understand the implications and responsibilities involved. Additionally, regularly review and update the power of attorney as needed to ensure it remains aligned with your current wishes and circumstances.
