Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others [2020] KEELC 2852 (KLR)
The bottom line
#A Kenyan court cancelled land titles because buyers couldn't produce the power of attorney behind the transfer — withholding key documents can cost you your property.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the Plaintiffs to sue
The 1st Plaintiff's unregistered foreign powers of attorney could not be exhibited, but the original Plaintiffs' pleadings and interests stand; PW2's undated but registered and signed power of attorney was valid under sections 109, 110 and 114 of the repealed Registered Land Act.
The powers of attorney executed in the United Kingdom were not registered in Kenya as required under Section 44(4) of the Land Registration Act, so the 1st Plaintiff's evidence was disregarded, but the original Plaintiffs' interests and pleadings could not be ignored. For PW2, the bare minimum for execution - signature by the donor and verification by the Registrar - was met; absence of a date was not fatal absent proof of pre-registration use of the instrument.
Validity of the sale and transfer of the suit property
The Defendants failed to produce the original or certified power of attorney supporting the transfer; an adverse inference was drawn, and the transfer was found to be irregular, rendering the Defendants' title challengeable under Section 26(1) of the Land Registration Act.
Under Section 107 of the Evidence Act the burden of proving the sale was conducted on a valid registered power of attorney lay on the Defendants. They withheld the document central to the transaction. Though fraud was not proved against the 2nd to 8th Defendants, the acquisition was proved to be illegal/unprocedural, warranting rectification of the register under Section 80 of the Land Registration Act.
Legal principles established
#- Unexplained failure by a party to tender documents or call a witness permits an adverse inference that the uncalled evidence would not have assisted the party's case
- Where a party withholds evidence central to the validity of a transfer (the original or certified power of attorney), the court may infer it was unregistered or adverse to that party
Court orders
#- 1.That 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.That the title issued to the Defendants is revoked and or annulled and or cancelled altogether
- 3.That 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.That the Respondents are condemned to meet costs of this suit
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (not expressly cited; ELC first-instance land claim)
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 2852 (KLR)", Case Analysis (2020). Kisumu ELC Case (Originating Summons) - not expressly stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2852/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.