By SASHA MUSIGI
In this article, we attempt to make an understanding of execution of documents. Reference is made to some repealed Acts (they are repealed on paper but they are still operational as we await the total transition to the use of the Land Act 2012). The reference to the repealed Acts is for purposes of knowledge acquisition and should not be used for anything else.
This article is also restricted to execution of documents in land transactions. How- ever, legal knowledge cuts across and the same principles may be adopted in other branches of law.
The context in which the article is written is for Kenyan Students. Students in other jurisdictions may not know what the referred to acts are. That notwithstanding, legal principles across East Africa are the same, so this knowledge may be still relevant for non– Kenyan students.
More so, in an era where we are moving towards cross boarder practice, knowledge of the laws across your boarders is undoubtedly potential power. Let us start with the obvious issue when it comes to execution of documents:
So, who executes documents?
Execution is the making of an imprint by the person entitled to an interest in land on a conveyance. Execution is usually done by signing. In imprinting, men use their left thumb while women use their right thumb print. When there’s no thumb, the print of the big toe may be used.
Where a company is involved, the company seal may be affixed and attested by either two directors of the company or one of the directors and the secretary of the company. Such affixation and attestation must be in conformity with the company’s memorandum and articles of association (section 58(4) RTA).
For societies and trust bodies, one should ascertain from the body’s constitution who should be executing documents on the body’s behalf.
For government bodies, i.e. parastatals, one must look at the establishing Act to ascertain who is empowered to execute documents on behalf of the parastatal. According to the Co-operative Societies Act, the limited co-operative societies will execute documents by affixing their seal thereto. Un-limited societies are entitled to execute documents pursuant to their internal rules.
An instrument is deemed to have been executed under the Act only by a natural person, if signed by him or by a corporation in the following instances:
If sealed with the common seal of the corporation, affixed thereto in presence of and attested by its clerk, secretary or other permanent officer and any member of the board of directors, council or other governing body of the corporation. Where such company is being wound up, execution of its instruments is deemed to have been executed if sealed with the common seal of the company and attested by the liquidator.
In case of a corporation not required by law to have a common seal, if signed by such persons as are authorized in that behalf by any law or by the statute or charter of the corporation or in the absence of any express provision, by the person duly appointed in writing for that purpose by the corporation, evidence of which appointment has been produced to the satisfaction of the registrar. Where such company is being wound up, execution is deemed to be effected if the liquidator signs the instrument and the same is verified in accordance with section 110 of the RLA.
Finally, in the case of group representatives incorporated under the Land (Group Representatives) Act Cap 287, if signed by all the group representatives, or if signed by a majority of the group representatives who produce a certificate of the registrar of group representatives that the execution of the instrument has been authorized by resolution of the group.
Under the ITPA, a mortgage for securing one hundred rupees or upwards must be effected only by registered instrument signed by the mortgagor and attested by at least two witnesses. The ITPA also provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least to witnesses.
In regard to attestation of instruments, section 58 of the RTA stated that every signature to an instrument requiring to be registered and to a power of attorney whereof a duplicate or an attested copy is required to be deposited with the registrar shall be attested by one of the following persons if it is within Kenya:
a) A judge or magistrate
b) A registrar of titles
c) A notary public
d) An advocate
e) A justice of the peace
f) The registrar or deputy registrar of the high court
g) An administrative officer
If it is within the United Kingdom or the common wealth, the following persons may attest the execution of the instrument:
a) A judge or magistrate
b) A notary public
c) A commissioner of the supreme court of judicature empowered to take affidavit in that court
d) The mayor or recorder or other chief officer of any city or municipal corporation.
The above persons including an administrative officer may also attest the execution of an instrument if it is within Uganda or Tanzania.
Verification is a requirement of the RLA only. The registrar or the public officer has to satisfy himself as to the identity of the person appearing before him and to ascertain whether he freely and voluntarily executed the instrument. Having so verified, the registrar or the public officer is required to prepare a certificate to that effect.
The registrar is empowered to dispense with verification subject to a record of the reasons why, in certain instances i.e. where it cannot be obtained or it can be obtained only with great difficulties and that he is otherwise satisfied or has knowledge that the document has been properly executed.
If execution has occurred in the common wealth, verification should be undertaken by a judge, magistrate, notary public, commissioner for oaths, or any administrative officer who is under an obligation to endorse thereon or attach thereto a certificate in the prescribed form.
Power of attorney
Section 114 of the RLA makes provision 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 except:
i. 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 such a person for purposes of the Act without necessarily obtaining a power of attorney
ii. Under the Mental Treatment Act Cap 248, one may apply to manage the property of an insane person. Such a person need not have a power of attorney.
The original copy of such power of attorney must be filed except that a copy of the original may be filed with consent of the registrar and such copy must be duly certified by him.
I hope you have had an informative read and that this is helpful.
This article was originally written for The Deuteronomy Vol 4, Issue 5. To get a full copy of that edition, visit our Facebook page.