Power of Attorney Notes

1
POWER OF ATTORNEY
A power of attorney is an instrument by which a person appoints
another to act for him in any matter, including the dispositions of
interests in land. It may be general or specific. The person
appointing is known as the principal or donor. The person
appointed is referred to as the donee. A power of attorney
presupposes that the person donating it has capacity. As such, a
person of unsound mind, for example, has no capacity to donate a
power of attorney. Consequently where a person purports that he
has a power of attorney donated to him by a person of unsound
mind, as was the case in Grace Wanjiru Munyinyi & another v
Gedion Waweru & 5 others,1 the power is null in law.
Section 114 of the RLA makes provisions for powers of attorney.
Pursuant to this section, an instrument dealing with an interest in
land shall not be accepted for registration where it is signed by an
agent (other than the registered proprietor) without a power of
attorney. The original of such power of attorney must be filed. In
the event that one wish to file a copy of the power of attorney
then it must be with the consent of the Registrar and the copy
must duly be certified by him.
However, an instrument may still be registered when signed by an
agent without a power of attorney in certain circumstances. These
are:
a. Under section 114(3) of the RLA, a guardian or a person
appointed in law to represent a minor or person of
unsound mind or a disabled person, is entitled to
generally represent that person for purposes of the Act
without necessarily obtaining a power of attorney.
b. Under Cap 248 (Mental Treatment Act) one may apply
to manage the property of an insane person. Such a
person need not have a power of attorney.
1 Civil Case No. 116 of 2002 (High Court at Nakuru, Kimaru J).
Pursuant to section 116(1) of the RLA, the Registrar is required to

keep a register of the power of attorney and file the original in the
file of powers of attorney. A copy of the power of attorney may be
filed subject to the consent of the Registrar and his certification. A
Power of attorney is under the Act required to be in the prescribed
form and it must be executed and verified in accordance with the
provisions of the Act.2 These requirements are couched in
mandatory terms such that failure to satisfy them renders the
power unenforceable. This point was emphatically stated by the
Court of Appeal in the case of Mayfair Holdings Ltd v Ahmed.3
Here, a power of attorney prepared under the United Kingdom
Power of Attorney Act 1971, was held to be unenforceable for lack
of verification and certificate prescribed under section 110(4) as
read with section 116 of the Kenyan RLA.
A power of attorney may be revoked by the donor at any time. 4
This is done by the donor issuing a notice in the prescribed form
to the Registrar indicating his revocation of the power of
attorney.5 Such a revocation must be entered in the register of
powers of attorney and noted upon the power, and the notice
should be filed in the file of powers of attorney. 6
It is possible for an interested party to give notice in writing to the
Registrar that a power of attorney which has been registered has
been revoked by the death, bankruptcy or disability of the donor
or the death or disability of the donee. 7 Such a notice must be
accompanied by such evidence as the Registrar may require. 8
Here too, the revocation must be entered in the register of powers
2 Section 116(2) RLA.
3 (1990) KLR 667
5 Ibid.
6 Ibid.
8 Ibid.
of attorney and noted upon the power, and the notice must be
filed in the file of powers of attorney.9
A power of attorney given for valuable consideration is, however,
irrevocable during any time during which the terms thereof states
that it is irrevocable.10 Further, where owing to the length of time
since the execution of a power of attorney or for any other reason
the Registrar considers it desirable, he may require evidence that
the power has not been revoked, and may refuse to register any
disposition by the donee of the power of attorney until
satisfactory evidence is produced.11
A duly registered power of attorney and which no notice of
revocation has been registered is deemed to be subsisting as
regards any person acquiring any interest in land affected by the
exercise of the power, for valuable consideration and without
notice of revocation and in good faith, or any person deriving title
under such a person.12 This section embodies the principle behind
the protection of a bona fide purchaser without notice.
A donee who in pursuance of a power of attorney and in good
faith makes any payment or does an act, is not liable in respect of
that payment if at the time of making the payment or doing the
act he was not aware that the donor was dead, had become
bankrupt, or had revoked the power. 13
Provisions relating to power of attorney are also to be found under
the Part IX of the RTA. Section 50 thereof allows any proprietor of
land provided he is not a lunatic, a minor or a person of unsound
mind, to donate a power of attorney for purposes of dealing with
his land. The appointment must be done in the prescribed form
which document must be executed. A duplicate or an attested
9 Ibid.
copy of the power must be deposited with the Registrar who is

under a duty to enter in the register a memorandum of the
particulars therein contained and of the date and hour of its
deposit with him.
However, a power of attorney executed in due and customary
form and giving sufficient powers in the opinion of the registrar
may be registered as though executed in the prescribed form.
Where a power of attorney was registered before the coming into
force of the RTA, and in accordance with the RDA or the GLA, it
shall be deemed to be duly registered for the purposes of the RTA
too.
Like under the RLA, A power of attorney conferred under the RTA,
may be revoked by an instrument of revocation in the prescribed
form. After the registration of revocation of the power, the
Registrar is not permitted to give effect to any transfer or other
instrument signed pursuant to that power. However, a revocation
executed in due and customary form may, at the discretion of the
Registrar, be registered as though executed in the prescribed
form. Further, a power executed before the coming into force of
the RTA should be revoked in accordance with the provisions of
the Act under which the power was registered.
Powers of Attorneys
It can be argued that under Cap 23 when it comes to
conveyancing there is no room to allow anyone to sign for you as
an attorney. Generally a person can appoint another to be his
legal representative and to do and perform and act that he the
donor could legally do.
A power donated under power of attorney could be general and
wide or specific and limited and could include the power to
execute documents and as well as the power to dispose of
documents. Powers of attorney are strictly construed so if the PA
allows you to only execute documents does it allow you to
dispose of any other item? You must do the power you are given,
if you are given the power to dispose an interest and transfer the
property then strictly construed it doesnt allow you to charge

that property and vice versa.
The question then is can you as the attorneys donate it?
If the power of attorney allows you to then you can donate it. You
must therefore be careful how you draft this power so as to
ensure the powers involved.
An area where PAs are used is selling properties that arent
registered, if there is no title to a particular property and a client
wants to buy it then the only thing you can do is prepare a power
of attorney. PA versus power of execution is recognized under RTA
section 50 and 51 and recognized under RLA section 114-117,
both of these actually provide and prescribe various forms on how
the power of attorney should look like. Under the RLA RL7 can be
amended only by the permission of registrar section 108.
If executed by an attorney you must confirm that that power of
attorney has been registered. The power could be available but is
it stamped and registered under the register of the power of
attorneys?

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1

Pursuant to section 116(1) of the RLA, the Registrar is required to

copy of the power must be deposited with the Registrar who is

property then strictly construed it doesnt allow you to charge

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