What do we mean by a “Power of Attorney” in Kenya?
A Power of Attorney (PoA) is a legal instrument through which one person (the donor or principal) authorizes another person (the donee, attorney, or agent) to act on the donor’s behalf in certain legal, financial, property or personal matters. This delegation can be temporary or permanent, broad or narrow in scope. It is governed by the Registration of Documents Act (Cap 285) and relevant provisions under the Law of Contract Act (Cap 23), with additional requirements prescribed under the Land Registration Act for land dealings.
What are the Types of Power of Attorney in Kenya?
Kenyan law recognizes several types of powers of attorney:
- General Power of Attorney: Grants broad authority to manage all or most of the donor’s affairs, commonly used for property, finances, and legal matters when a person is unavailable or incapacitated.
- Special or Specific Power of Attorney: Limits authority to particular acts, purpose or transactions, such as selling a specific property or representing the donor in a single lawsuit. Once the task is completed, the PoA terminates.
- Enduring/ Irrevocable Power of Attorney: Remains effective even if the donor becomes incapacitated and cannot be revoked except with mutual consent and needs to be supported by consideration (though its use is rare and requires careful drafting). It is often used to guard against incapacity. Mostly used in estate planning, ensuring management continuity if the principal loses mental capacity.
What are the Legal Requirements for a Valid Power of Attorney in Kenya?
- Capacity & definition of the Parties: Both donor and attorney must be clearly identified with full names and addresses. Both must be at least 18 years old and of sound mind.
- Scope and purpose: The PoA document must clearly state the powers being conferred (which acts the agent may perform). The extent of authority should not be ambiguous.
- No illegality or fraud: The powers cannot be used for illegal acts, contrary to public policy, or beyond the donor’s legal capacity.
- Writing, Execution & Witnesses: The PoA must be in writing and the donor must sign it, with the signature witnessed by someone not involved in the transaction.
- Stamp Duty: Must be paid to the Kenya Revenue Authority within 30 days of execution and stamped to be enforceable under the Stamp Duty Act.
- Registration: For legal effect and especially in transactions involving land or property, registration is mandatory at the Registration of Documents Registry.
- Corporate POA: Must be executed under the company seal with correct board resolutions and accompanied by incorporation documents.
Note: If any of the formal requirements are not satisfied, the PoA may be challenged or deemed ineffectual, especially in land registries or third‐party dealings.
What is meant by registration of a Power of Attorney in Kenya?
Registration of a Power of Attorney is the process by which the instrument is recorded in the relevant public registry (especially in the land registry under the Registration of Documents Act) so that third parties (e.g. land registrars, banks, government agencies) may rely on the agent’s authority.
Under Kenyan law, Powers of Attorney related to land transactions or dealing in land must be registered in the Register of Powers of Attorney through the Registrar of Documents.
What are the requirements for registering a Power of Attorney in Kenya?
To register a PoA, the following are typically required:
- The original executed PoA instrument (signed, witnessed, stamped).
- Proof of payment of stamp duty.
- Identification of donor and donee (ID, passport) and, if applicable, PIN certificate.
- Passport‑size photographs of the parties (per land registry requirements).
- For corporate donors, copies of the Memorandum & Articles of Association and the board resolution authorizing the PoA.
- A registration fee (currently KSh 1,000 in the land registry)
- Lodging the form or request with the Lands Office / Registrar of Documents.
What is the effect of registration? What legal impact does it have?
Once registered:
- The PoA becomes publicly enforceable and reliable by third parties (e.g. land registry, financial institutions).
- Third parties are deemed to have constructive notice of the PoA’s existence and authority.
- It helps prevent fraud by providing a verifiable record of the agent’s power.
- The PoA may only be used to register instruments in land records (e.g. transfers via the agent).
- If a revocation is registered, the Registrar is barred from giving effect to any instrument executed under the now‑revoked PoA.
Note: Registration does not automatically validate a defective PoA, but it strengthens the evidential weight of a correctly executed one.
Can a corporate entity in Kenya grant or receive a Power of Attorney?
Yes. A corporate body (company, limited liability company) may act as a donor or as a donee (attorney)
When is a corporate Power of Attorney needed?
The common scenarios include:
- Authorizing an agent to sign contracts, enter tenders, or conclude deals in jurisdictions where the company is not present.
- Delegating execution or management of capital projects, property dealings, or litigation.
- Authorizing an agent to appear in regulatory or governmental forums on behalf of the company.
- Simplifying bureaucracy by appointing representation for certain tasks in branches or external jurisdictions.
What are the requirements for corporate PoAs?
- A board resolution approving the grant of the PoA must be passed in accordance with the company’s articles and governance rules.
- The PoA must be executed under the company seal (if required by the articles) or under the corporate execution clause.
- A certified current CR12 (company registration extract) is often required to show authorized directors.
- The PoA must be stamped, witnessed, and registered (if land or document dealing).
If a corporate PoA is improperly authorized (no board resolution, invalid company documents) it may be held invalid by courts or refused registration.
What are the Legal Steps for Using a Foreign Power of Attorney in Kenya?
A foreign POA must be registered in Kenya to be effective, regardless of any prior registration abroad. Legalization involves:
- Notarization by a notary public in the country of origin
- Legalization/ authentication by the Kenyan Ministry of Foreign Affairs and, if necessary, relevant embassies
- Translation is required if not in English or Kiswahili, and a certificate of translation may be needed.
- Payment of stamp duty
- After arrival in Kenya, the PoA must be lodged and registered in the Land Registration / Registration of Documents registry, as with a domestically executed PoA
Can a Power of Attorney be revoked? If so, how?
Yes. A donor may revoke a PoA, provided they still have capacity. Revocation can occur in several ways: express or implied.
Express Revocation
The donor explicitly states (in writing or via a formal legal document) that the PoA is revoked. The process of revocation must follow the following steps:
- Draft and sign a Notice of Revocation, witnessed preferably by an advocate or notary
- Register the revocation at the relevant registry using the prescribed form (e.g., Form LRA 8 for land matters)
- Notify all parties, government registries, and third parties involved to prevent unauthorized actions
- After registration of revocation, the Registrar must refuse to give effect to any instruments offered under the now‑revoked PoA.
- For irrevocable POAs, mutual consent or a court order is required for revocation.
Implied Revocation
This is where the conduct or circumstances imply revocation. Examples include:
- The donor appoints a new attorney over the same matter.
- The donor directly intervenes in the matter covered by the PoA in a way inconsistent with the agent’s authority.
- Death or incapacity of the donor (unless an enduring PoA) or death/disability of the agent.
- A power of attorney can also be revoked through a court order.
- Completion of the task or expiry of the specified duration.
When does a Power of Attorney come into effect, and when does it cease to exist?
A PoA typically becomes effective immediately upon execution (and stamping) unless it stipulates a future date or contingent event. However, for land dealings it must be registered. It may cease by:
- Revocation (express or implied)
- Death of the donor (unless an enduring PoA)
- Loss of capacity of the donor (if not enduring)
- Death or incapacity of the agent
- Expiry of the term (if specified)
- Through a court order
- Completion of the task (for special PoA)
- Bankruptcy or insolvency of donor or donee (in some contexts)
What are the Common Uses of a Power of Attorney in Kenya?
- Real estate sales, purchases, management, and land transfers
- Management of personal or business finances
- Litigation and legal proceedings
- Corporate transactions, especially tenders or cross-border dealings
- Health and estate management (in case of incapacitation)
How can Njaga & Co. Advocates assist with Power of Attorney matters?
At Njaga & Co. Advocates, we offer expert guidance to our clients in:
- Drafting and customizing Powers of Attorney (general, special, enduring, or corporate)
- Advising on compliance with Kenyan laws and registration requirements
- Handling stamp duty and registration at the Lands or Documents Registry
- Legalizing foreign Powers of Attorney for use in Kenya
- Revoking Powers of Attorney and notifying third parties
- Resolving disputes where misuse or fraud is suspected
We offer reliable, efficient, and professional legal support tailored to your needs. Contact us today for any of your legal needs.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
