An official search and papers said to establish an agent's authority did not answer every ownership question in the Varma dispute. An omitted co-ownership share and the failure to produce the authority relied on for the sale remained central. The court ultimately ordered title rectification without finding purchaser fraud sufficiently proved.
Sanjay Varma & 2 others v Jackson Eshiwani Likoye & 7 others, Environment and Land Court at Kisumu, ELC824/2015(OS), was a judgment by A.O. Ombwayo dated 5 May 2020. The official Judiciary case page links the decision. References below use PDF page positions because the judgment's narrative is unnumbered; its dated closing appears on PDF page 23.
The search was not the whole ownership history
The dispute concerned an undivided half share of Kisumu Municipality/Block7/331. The plaintiffs challenged the transfer and sought registration of that share, cancellation of the defendants' title and assistance with conveyancing. Their allegations of forged signatures and missing consent were claims to be proved, not established facts merely because they appeared in the pleadings. (PDF pages 1-5.)
The purchasers relied on searches, documents, payment, asserted agency authority and advocates' involvement. It would be misleading to describe their defence as one without checks or paperwork. The question was what the evidence established. (PDF pages 6-14.)
The witness identified as DW1 acknowledged no green-card inspection and no produced agency proof. A receipt was identified but not produced as an exhibit. Those gaps did not establish that every payment assertion was false. (PDF pages 13-14.)
The registrar's evidence described an omitted co-owner's share and incomplete older records. The court later treated the co-ownership omission as serious. A search result did not, by itself, resolve that earlier ownership problem. (PDF pages 11-12 and 20-22.)
Three authority questions had different answers
The judgment did not treat every power of attorney as the same document or decide that they were all invalid.
First, the court found that the first plaintiff's UK powers were not registered in Kenya and disregarded his evidence. But it did not discard the original plaintiffs' interests, statements and pleadings. That representation issue did not dispose of their claims. (PDF page 19.)
Second, PW2 relied on a separate, registered and verified power. The court upheld it despite its lack of a date and held that he was properly joined. This was not a finding that an undated power must always fail. (PDF pages 19-20.)
Third, the power invoked for the challenged sale was not produced in original or certified-copy form. The court drew an adverse inference: either it was unregistered, or a registered instrument would have been adverse to the defendants' case. That reasoning about missing evidence was not forensic proof that a signature had been forged. (PDF pages 20-22.)
For due diligence, the question is therefore not simply whether someone mentions a power of attorney. Which instrument is being relied on, for whose authority, and what evidence supports its use for this transaction?
Unproved fraud did not end the title challenge
The court found that fraud by the second-to-eighth defendants had not been sufficiently demonstrated. It nevertheless found illegal and/or unprocedural acquisition on the balance of probabilities, addressing title challenge under section 26 and rectification under section 80 of the Land Registration Act. (PDF pages 22-23.)
Those are distinct conclusions. Failure to prove purchaser fraud did not cure the acquisition defect identified by the court. Conversely, the title decision was not a criminal conviction or a basis for calling the purchaser group proven fraudsters.
The plaintiffs' remedy was a half share
On PDF page 23, the court ordered the plaintiffs registered for an undivided half share, not ownership of the whole parcel. Its reasoning also preserved the other co-owner's half.
The court ordered cancellation of the title issued to the defendants and directed the Deputy Registrar Kisumu to sign conveyancing documents for the plaintiffs or their nominees, on the defendants' behalf. These are historical judicial directions, not proof of completed registration or conveyance.
The court directed the "Respondents" to meet the costs of the suit, without an amount, joint-and-several formula or individual apportionment. Requests concerning rent and travel appeared in submissions, but no quantified rent, travel or damages award appears in the final orders. (PDF pages 15-18 and 23.)
Ask about the share and the authority together
Separate probate files, original powers, green cards, exhibits and quoted authorities were not independently examined. Variations in dates and accounts have not been resolved into a complete transaction history. Later appeals or stays, present ownership, occupation and implementation remain unverified.
See how ArdhiScore works: it helps organise available dated land-risk evidence and unresolved questions for professional due diligence. A clearer record can focus enquiries on the ownership share and the authority said to support a sale. ArdhiScore does not authenticate powers or signatures, certify title, guarantee complete coverage or replace official records and qualified advice. This historical explanation is educational, not legal advice.