Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others [2020] KEELC 2362 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Capacity of Plaintiffs to sue
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.
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 For PW2, the minimum requirements for execution under Sections 109, 110 and 114 of the repealed Registered Land Act are the donor's signature and Registrar verification, both met; absence of dating did not invalidate the instrument.
Validity of the sale and transfer
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.
Under Section 114 of the repealed Registered Land Act no instrument executed by an agent is acceptable unless authorised by a power of attorney executed and verified under Sections 109 and 110,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.
Bona fide purchaser defence
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.
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
#- 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
#- 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.The title issued to the Defendants is revoked and/or annulled and/or cancelled altogether
- 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.The Respondents are condemned to meet costs of this suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (undivided half share of Kisumu Municipality Block 7/331)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.