A buyer is posted abroad for three years and wants to purchase a house in Nairobi before returning. A seller’s parent, who owns the family land, can no longer travel to sign. In both situations the transaction proceeds through a power of attorney, an instrument that allows one person to act for another, and its preparation deserves as much care as the sale documents themselves.
What can a power of attorney do in a land transaction?
A power of attorney appoints an attorney to sign documents and take steps on the donor’s behalf, from executing the sale agreement and the transfer instrument to receiving the completion proceeds. The instrument is governed by the Power of Attorney Act, which can be read through Kenya Law, and the lands registries require it to be registered before documents signed by the attorney are accepted for registration. A well-drafted instrument keeps the transaction moving when the principal cannot be present, which is why it is a fixture of diaspora transactions.
What makes a power of attorney effective?
- Powers drafted to match the transaction, rather than granted in unlimited general terms.
- Clear identification of the donor, the attorney and the parcel concerned.
- Signature by the donor before a notary public or other authorised officer.
- Registration at the lands office before the attorney signs registrable documents.
What are the risks, and how are they managed?
An attorney’s authority ends when the donor dies, becomes of unsound mind or revokes the instrument, and a transaction that proceeds afterwards is exposed to challenge. Attorneys should account fully for funds received, and donors should appoint someone trustworthy, keep the duration of the instrument short, and revoke it once the transaction closes. Where a power of attorney is used to sell family land, the consent requirements that apply to any other transfer, including spousal consent where the matrimonial home is concerned, continue to apply to the transaction.
The firm prepares and registers powers of attorney for clients transacting remotely, within its conveyancing practice in Nairobi, and the firm’s about page introduces the team that supervises such transactions from instruction to completion.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.