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ELCPartially AllowedKisumu ELC Originating Summons (not stated in judgment as extracted)· [2020] KEELC 2362 (KLR)

Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others [2020] KEELC 2362 (KLR)

Environment and Land Court
5 May 2020
4,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kisumu court cancelled land titles because buyers could not prove the power of attorney behind their purchase was validly registered.

What this practically means

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Executive summary

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The Plaintiffs, successors in interest of the Kohli family, sought registration as owners of an undivided half share of Kisumu Municipality Block 7/331 and cancellation of the Defendants' title, alleging the 2006 transfer to the 2nd to 8th Defendants proceeded on a fraudulent, forged and unregistered power of attorney donated to the 1st Defendant. The Defendants maintained they were bona fide purchasers for value who conducted due diligence through an official search and relied on a registered power of attorney, and questioned the Plaintiffs' capacity to sue given unregistered powers of attorney. The court first held that the 1st Plaintiff's unregistered UK powers of attorney could not be exhibited, but that the original Plaintiffs' pleadings could not be ignored; PW2's undated but registered and signed power of attorney was valid. On validity of the transfer, the court placed the burden under Section 107 of the Evidence Act on the Defendants to prove the power of attorney was validly executed and registered, and drew an adverse inference from their failure to produce it, inferring it was unregistered or would be adverse to their case. Although fraud against the purchasers was not sufficiently demonstrated, the court found on a balance of probabilities that the property was acquired illegally and/or unprocedurally, rendering the title challengeable under Section 26(1) of the Land Registration Act, and directed rectification under Section 80 to reflect both the Plaintiffs' undivided half share and Lalchand Kohli's remaining half share. The court also noted the Land Registrar's grave error in omitting Lalchand Kohli's interest from the register. The Plaintiffs' claim for compensation for lost rents and travel costs was not granted. Final orders restored the Plaintiffs to their undivided half share, revoked the Defendants' title, empowered the Deputy Registrar to execute conveyance documents, and condemned the Defendants to pay costs. Judgment was delivered electronically on 5th May 2020.

Key legal issues

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01

Capacity of Plaintiffs to sue

Holding

The 1st Plaintiff's unregistered UK powers of attorney could not be exhibited, but the original Plaintiffs' pleadings and interests could not be ignored; PW2's undated but registered power of attorney was valid.

Reasoning

The 1st Plaintiff was enjoined late merely to represent beneficiaries of the original Plaintiffs' estates, so his lack of registration could not defeat the original Plaintiffs' claim. For PW2, the minimum requirements for execution under Sections 109, 110 and 114 of the repealed Registered Land Act are the donor's signature and Registrar verification, both met; absence of dating did not invalidate the instrument.

p. 5
02

Validity of the sale and transfer

Holding

The sale and transfer were invalid; the Defendants failed to prove a valid registered power of attorney, and an adverse inference was drawn against them.

Reasoning

Under Section 114 of the repealed Registered Land Act no instrument executed by an agent is acceptable unless authorised by a power of attorney executed and verified under Sections 109 and 110, with the original or certified copy filed. The Defendants never produced the original or certified copy of the power of attorney. Following the adverse inference rule, the court inferred the document was unregistered or adverse to their case. The transfer was therefore unprocedural and the title challengeable under Section 26(1) of the Land Registration Act.

p. 5
03

Bona fide purchaser defence

Holding

The bona fide purchaser defence failed because the purchase price was paid after transfer, without evidence of receipt by the owners, and the green card (showing tenancy in common) was never checked.

Reasoning

DW1 admitted the 10% deposit evidence was contradicted by DW2, who said the whole price was paid after the transfer, five months after the sale agreement; the Kshs. 6.5 million receipt was never exhibited. The Defendants conducted only an official search and did not check the green card, which would have revealed the tenancy in common. They also did not counter-check with tenants, part of whose family resided in the building.

Legal principles established

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  • The burden of proving that a sale and transfer was conducted on the strength of a valid and registered power of attorney lies with the party alleging and relying on it; unexplained withholding of the document invites an adverse inference.
  • Unexplained failure to tender a central document permits the court to infer it would be adverse to the withholding party's case.
  • A title procured illegally or unprocedurally is challengeable under Section 26(1) of the Land Registration Act and the register may be rectified under Section 80.

Court orders

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  1. 1.The Plaintiffs be registered as the owners of undivided half share of land reference number KISUMU MUNICIPALITY/BLOCK 7/331 measuring 0.0697 Ha or thereabouts
  2. 2.The title issued to the Defendants is revoked and/or annulled and/or cancelled altogether
  3. 3.The Deputy Registrar, Kisumu to sign documents for the purposes of conveyance for the Plaintiffs or their nominee(s) on behalf of the Defendants
  4. 4.The Respondents are condemned to meet costs of this suit

Authorities

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Legislation

  • Law of Succession Actresealing of foreign grants
  • Registered Land Act (repealed)Sections 91(5) & (6), 96, 109, 110, 114
  • Land Registration ActSections 26(1), 44(4), 80
  • Evidence ActSection 107
  • Registration of Documents ActSection 9

Cases cited (5)

  • Lawrence P. Mungai v AG & 4 others
    Nairobi Civil Appeal No. 146 of 2014
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    Kericho ELC No. 51 of 2014 (OS)
  • Lawrence Mukiri v Attorney General & 4 other
    [2013] eKLR
  • Eunice Grace Njambi Kamau & another v The Hon. Attorney General and 5 others
    [2000] eKLR
  • In Estate of Stanley Kori Kiongo Alias Kori Kiongo-Deceased
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (undivided half share of Kisumu Municipality Block 7/331)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others [2020] KEELC 2362 (KLR)", Case Analysis (2020). Kisumu ELC Originating Summons (not stated in judgment as extracted). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2362/eng@2020-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.