https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5117

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. E025 OF 2022** **COUNTY GOVERNMENT OF KAKAMEGA….…….. PLAINTIFF** **VERSUS** **ALEX NJOROGE MWANGI …………………………. DEFENDANT** **JUDGMENT** **Introduction** 1. This suit was instituted vide a plaint dated 9th May 2022 by the County Government of Kakamega. The plaintiff pleaded that it was the lessor of Land Parcel No. Kakamega/Municipality/Block I/570, which had been leased to the defendant on 23rd March 2007 and a certificate of lease of even date subsequently issued. That the lease contained a special condition requiring the defendant to submit development plans within six months of registration and to complete development of the suit property within twenty-four months. That despite the lapse of more than fourteen years, the defendant had failed to develop the property and was therefore in breach of the lease conditions. 2. The plaintiff further pleaded that, in line with its policy of repossessing undeveloped public land within Kakamega Municipality, it constituted an Appeals Panel through a gazetted committee to hear persons affected by the intended repossession, however, the defendant failed or neglected to appear before the committee, following which the committee recommended repossession of the suit property. Acting on that recommendation, the plaintiff issued the defendant with a notice of repossession dated 11th January 2022 and subsequently served him with the same. The plaintiff maintained that the defendant remained in breach of the lease and that the continued non-development of the property undermined its development agenda of elevating the town to city status. 3. The plaintiff cited the particulars of breach as failure by the defendant to submit to the local authority plans, drawings, elevations and specifications of the proposed development within a reasonable time from the date of registration of the lease and issuance of the certificate of lease; and failure to develop the suit property for over fourteen years from the date of issuance of the registered lease. 4. Consequently, the plaintiff sought the following orders against the defendants: 5. **An order that the lease in respect to Land Parcel Title No. Kakamega/Municipality/Block I/570 be forfeited on account of breach of the special condition number 2 on development; and** 6. **Such other orders as the Honorable Court may deem fit and just.** 7. In response to the plaint, the defendant filed a statement of defence and counterclaim dated 22nd November 2023 in which he denied the plaintiff’s claim and maintained that he was the lawful registered proprietor of Land Parcel No. Kakamega/Municipality/Block I/570, having acquired the same lawfully and for valuable consideration. That he had been in open, peaceful and uninterrupted occupation of the suit property and denied that the property had remained undeveloped as alleged. He further denied having been served with any valid notice of intention to repossess the property and contended that the plaintiff had no lawful basis for seeking forfeiture of the lease. 8. In the counterclaim, the defendant pleaded that he was the sole registered proprietor of the suit property and had enjoyed peaceful occupation thereof without interference. That in 2022 the plaintiff, through its agents, servants and employees, unlawfully entered the property, attempted to repossess it, demolished sections of his perimeter fence and continued to harass and interfere with his quiet possession. That the plaintiff had no court order authorizing such actions and lacked legal capacity to repossess the property. That the lease conditions relied upon by the plaintiff could not override his constitutional right to property and that the plaintiff’s actions were unlawful and actionable. That there was a pending suit, Kakamega CMCC MCL&E No. E114 of 2020, between himself and the plaintiff. 9. Consequently, he prayed for the following orders: 10. **The dismissal of the plaintiff’s suit with costs to the defendant** 11. **A permanent injunction restraining the plaintiff, its agents, servants or employees from entering, occupying, repossessing, remaining on, or in any manner interfering with the defendant’s peaceful use and occupation of Land Parcel No. Kakamega/Municipality/Block I/570; and** 12. **The costs of the counterclaim.** 13. The plaintiff thereafter filed its reply to the defence and counterclaim dated 4th April 2024 in which it denied the defendant’s allegations and reiterated that the suit property had remained substantially undeveloped contrary to the terms of the registered lease. That the defendant had failed to comply with the special development conditions contained in the lease and that the repossession process was undertaken lawfully, transparently and in accordance with the recommendations of the duly constituted Appeals Panel. The plaintiff further contended that leasehold rights were subject to compliance with the terms of the lease and denied that the defendant had acquired any absolute right capable of defeating the lessor’s powers under the lease. It also denied the allegations of unlawful entry, harassment and interference with the suit property, maintained that the counterclaim was devoid of merit, and prayed that the defence and counterclaim be dismissed with costs and judgment entered as prayed in the plaint. 14. The suit proceeded to hearing through *viva voce* evidence. Both the plaintiff and defence called one witness each in support of their respective cases. **Plaintiffs’ evidence.** 1. PW1 was Ronald Matende Omwoma, a physical planner and land advisor to the plaintiff. He adopted his witness statement dated 4th April 2024 as his evidence in chief and produced the documents contained in the plaintiff’s list of documents dated 9th May 2022 and supplementary list of documents dated 4th April 2024 as exhibits. He testified that he was a member of the ad hoc Appeals Panel of the Kakamega County Land Application, Extension of Leases and Land Administration Committee constituted through Gazette Notice No. 103 of 30th December 2020 to hear appeals relating to undeveloped plots within Kakamega Municipality. He stated that the plaintiff was the lessor of Land Parcel No. Kakamega/Municipality/Block I/570 and that a lease had been issued to the defendant on 23rd March 2007 subject to the conditions contained therein. 2. He further testified that the suit property remained undeveloped despite the lapse of several years and that the defendant failed to appear before the committee after invitations were published for affected allottees and lessees. That upon considering the matter, the committee recommended repossession of the suit property on account of non-development. He stated that, acting on that recommendation, the plaintiff issued the defendant with a Notice for Repossession dated 11th January 2022. It was his evidence that the defendant had failed to develop the property in accordance with the terms of the lease and that the lease was therefore liable to forfeiture. 3. On cross examination, he stated that the owners were initially given Government notice for intention to repossess the land, and accorded an opportunity to appeal against the intention to repossess the land. That the land could be repossessed from the owner by forfeiture, which was automatic under special condition 2. That the defendant had breached special condition No. 1 and 2 of his lease owing to his failure to submit approved plans six months after registration of lease and failure to develop the land 24 months after the lease. That the filed site inspection report showed the land had not been developed. That the defendant was served with notice to develop the property or risk repossession. On re-examination, he stated that there was no indication in the filed defence that the defendant provided development plans. That the issue of rates were not within the terms of reference and that the 24-month period lapsed on 01.12.2001, the lease having been issued to the defendant on 01.12. 1999.This marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was Alex Njoroge, the defendant. He adopted his witness statement dated 22nd November 2023 as his evidence in chief and testified that he was the registered proprietor of Land Parcel No. Kakamega/Municipality/Block I/570, having acquired the same lawfully and for valuable consideration. He stated that a certificate of lease was issued to him on 23rd March 2007 and that he had since exercised his proprietary rights over the suit property openly, peacefully and without interference. That he had been paying the requisite rates and other charges relating to the property. That he first became aware of the plaintiff’s intention to repossess the suit property when he saw a notice published in the Daily Nation newspaper listing properties earmarked for repossession, which included his parcel. He testified that he thereafter visited the plaintiff’s offices seeking reasons for the intended repossession but was not given a satisfactory explanation. According to him, the plaintiff’s actions threatened his lawful ownership and possession of the suit property, prompting him to institute Kakamega CMCC MCL & E No. E114 of 2020. He maintained that he held a valid title to the property, that his ownership rights were protected by law, and that the plaintiff’s suit was unlawful, untenable and ought to be dismissed with costs. 2. On cross examination, he stated that he purchased the suit property in 2007 and that he held a leasehold interest over the land for a term of 99 years. He conceded that the lease required development of the property and acknowledged that, despite having been registered as proprietor since 2007, he had not developed the suit property for approximately fifteen years. That the lease indicated the property was to be used for residential purposes, but he currently used the land as a yard to store his building materials. He admitted that he had not submitted any development plans to the plaintiff and had no documentary evidence to demonstrate that he had ever presented such plans to the relevant county offices. That he was awaiting funds before undertaking any development on the suit property. DW1 further stated that he became aware of the County Government’s intention to repossess the property through a newspaper notice and that he had not personally responded to the notice but instead forwarded his documents to his advocate. That he subsequently filed Kakamega CMCC MCL&E No. E114 of 2020 challenging the intended repossession, although he was unaware of the status of the suit and the fact that the case was dismissed for want of prosecution as he did not attend court. That marked the close of the defence case. 3. On 7th October 2025, the court directed parties to file submissions. On record are submissions dated 26th November 2025 filed by the plaintiff. At the time of writing this judgment, no submissions by the defendant had been filed. **Plaintiff’s submissions.** 1. Counsel for the plaintiff submitted that the defendant was allocated the suit property, Kakamega Municipality/Block I/570, under a 99-year lease and was issued with a certificate of lease on 23rd March 2007. That the lease contained special condition No. 2 requiring the defendant to submit building plans within six months of registration and to complete development of the property within twenty-four months. Counsel contended that the defendant had admittedly failed to comply with those conditions and had conceded during cross-examination that the suit property remained undeveloped more than sixteen years after allocation. 2. Counsel argued that before instituting the suit, the plaintiff undertook a lawful and transparent process aimed at repossessing undeveloped public land, including publication of notices identifying undeveloped plots, inviting affected persons to appear before a duly gazetted Appeals Panel, issuing a notice of intention to repossess the suit property, and considering the defendant’s case through the committee process. It was submitted that despite being afforded an opportunity to be heard, the defendant failed or neglected to take advantage of the process. 3. Further, that leasehold interests are conditional and subject to compliance with the terms of the lease. Counsel argued that the defendant’s title was not absolute or indefeasible as against the obligations imposed by the lease and relied **on Articles 60 and 66 of the Constitution**, **Sections 12(9)** and **31 of the Land Act**, as well as **Sections 33** and **77 of the repealed Government Lands Act** for the position that undeveloped public land may revert to the allocating authority where the lessee breaches the conditions of allocation. Counsel referred the court to **Republic v County Government of Siaya Ex Parte Between Ruth Akelo Were; Rosella Nyanja (Interested Party) [2021] KEELC 422 (KLR)** and **Melisa Awour Odera v Keringet Estates Limited [2021] KEELC 1454 (KLR)** in support of the proposition that forfeiture is an available remedy where lease conditions have been breached. 4. Counsel submitted that the defendant had not produced any evidence of approved building plans, development approvals, construction works or any other steps taken towards development of the suit property. It was further argued that the defendant's reliance on Kakamega CMCC MCL & E No. 114 of 2020 was unsupported, as no evidence had been tendered to demonstrate that the matter was pending or related to the suit property. Consequently, counsel urged the court to find that the defendant was in breach of the lease conditions, declare the lease forfeited pursuant to **Section 31 of the Land Act**, allow the prayers sought in the plaint and dismiss the counterclaim with costs. **Analysis and determination.** 1. The court has carefully considered the pleadings, evidence and submissions in this matter. Two issues arise for the court’s determination, namely; whether the defendant breached the terms of the lease registered in his favour and whether the plaintiff deserves orders of forfeiture. 2. In the instant case, the plaintiff argues that a lease in favour of the defendant in regard to the suit property was registered in 2007 and a lease issued to the defendant the same year, but that the defendant breached Special Condition No. 2 of the lease which required him to submit his building plans for the development of the suit property to the plaintiff, within six months of registration of the lease and to develop the property in 24 months of the registration of the lease. That the default clause on Special Condition No. 2 was that noncompliance would grant plaintiff the right to re-enter the land. 3. Public land is allocated for purposes sustainable development and not for speculation. Article 60 of the Constitution provides for principles of land policy and requires that land shall be held, used and managed in an equitable, efficient, productive and sustainable manner. The same provides as follows; **“Principles of land policy.** **60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles—** 1. **equitable access to land;** 2. **……………** 3. **sustainable and productive management of land resources;”** 4. Therefore, conversion of public land to private land by allocation, still allows the National or County Government as the case may be, to superintend the holding, use and management of such land. The lessee must meet the threshold of equity, efficiency, productivity and sustainability, in default, the land reverts to Government. 5. In the case of **Kahindi Ngala Mwangandi v Mtana Lewa [2014] e KLR,** the court was of the view thatit is against public interest and the Constitution to allow a scarce resource like land to lie abandoned in perpetuity. 6. Where public land allocated to a private individual is not developed as required in the lease instrument, the land automatically reverts to the National or County Government as the case may be. Section 12 (9) of the Land Act provides as follows; **“Where the land allocated under subsection (8) is not developed in accordance with the terms and conditions stipulated in the lease, that land shall automatically revert back to the national or county government, as the case may be and the Commission shall include in its annual report the status of implementation of this subsection.”** 1. In the instant case, the plaintiff has shown that the lease instrument granted to the defendant obligated him to submit development plans in six months of registration of the lease and to develop the land as per the terms of the lease in 24 months from the date of registration of the lease. However, the defendant did not present evidence to show that he presented building plans and also developed the suit property within the prescribed time. In the premises I find and hold that the defendant breached the fundamental terms of the lease herein, and therefore the plaintiff has the right to forfeiture. 2. The Black’s Law Dictionary, 11th Edition defines forfeiture as; **“The divestiture of property without compensation. The loss of a right, privilege or property because of a crime, breach of obligation, or neglect of duty. Title is instantaneously transferred to another, such as the government, a corporation or a private person. A destruction or deprivation of some estate or right because of the failure to perform some contractual obligation or condition.”** 1. Therefore, forfeiture means losing a right, privilege or property without compensation, as a result of breaching a legal or contractual obligation or covenant. 2. Section 31 of the Land Act provides for forfeiture of lease in respect of public land that was converted to private land by allocation, where there is breach of covenant as follows; **“Forfeiture of lease if rent unpaid or for breach of covenant** | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | **(1)** | **If any part of the rent or royalties reserved in a lease under this Act is unpaid for a period of twelve months after becoming due, or if the lessee breaches any express or implied covenant, the national government or county government, as the case maybe may—** | | | | | --- | --- | --- | | **(a)** | **serve a notice upon the lessee, specifying the rent or royalties in arrears or the covenant of which a breach has been committed; and** | | | **(b)** | | **commence an action in Court for the recovery of the land at any time at least one month after serving the notice contemplated in paragraph (a).** | | | | | **(2)** | | **In an action commenced under subsection (1)(b) on proof of the facts, the Court shall declare the lease forfeited, subject to relief upon such terms as may appear just.** | | | | | | --- | --- | --- | | **(3)** | **If the Court has declared a lease to be forfeited under subsection (2), the national government or county government, as the case maybe may re-enter upon the land.** | | | **(4)** | | **In exercising the power of granting relief against forfeiture under this subsection (1) the Court shall be guided by the principles of the doctrines of equity.”** | 1. Therefore, this Court has jurisdiction to declare a lease forfeited where the lessee fails to pay reserved rent for twelve months or where they breach any of the covenants of the lease, and after the National or County Government (as the case may be) has served on the lessee one month’s notice stating the breached covenant or unpaid rent. 2. In the case of **Nyoro v Karinstreap Investment Limited (Environment & Land Case E100 of 2020) [2023] KEELC 16911 (KLR) (20 April 2023) (Judgment),** the court held that where the lessee breaches the terms of the lease, the lessor’s right to forfeiture comes into play and as long as the lessor follows the right procedure in exercising their right of forfeiture, they are entitled to an order of the court enforcing that right and cancelling the lease. 3. Section 75 of the Land Act provides for the procedure of forfeiture as follows; **“Notice before forfeiture** **Notwithstanding anything to the contrary contained in the lease, no lessor shall be entitled to exercise the right of forfeiture for the breach of any agreement or condition in the lease, whether expressed or implied, until the lessor has served on the lessee a notice of not less than thirty days—** | | | | | --- | --- | --- | | **(a)** | **specifying the particular breach complained of; and** | | | **(b)** | | **if the breach is capable of remedy, requiring the lessee to remedy the breach within such reasonable period as is specified in the notice; and** | | | | | | --- | --- | | **(c)** | **in any case other than non-payment of rent, requiring the lessee to make compensation in money for the breach,** | **and the lessee has failed to remedy the breach within thirty days thereafter, if it is capable of remedy, and to make reasonable compensation in money.”** 1. On the question as to whether the process for forfeiture was complied with, the evidence presented demonstrated that the plaintiff gave the defendant a notice of forfeiture in the Daily Newspaper of 16th February 2021, and another notice served by WhatsApp on 31st January 2022. It also heard the defendant through its Appeals Panel before the right of forfeiture was exercised. The defendant confirmed having been made aware of the notice of forfeiture. This suit having been filed on 13th May 2022, it is clear that the defendant had had more than 30 days to offer to remedy the breach, but did not do so. In this case, the defendant failed to remedy the breach. For those reasons, I therefore find and hold that the plaintiff complied with the required procedure in exercising its right of forfeiture and is therefore entitled to the orders sought in the plaint. 2. Ultimately, I find and hold that the plaintiff has proved its case on the required standard and its claim is hereby allowed. Consequently, an order is hereby issued that the lease in respect to land parcel title No. Kakamega Municipality/ Block I/570 is hereby forfeited on account of the defendant’s lack of development of the land. 3. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 22ND DAY OF JULY, 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** No appearance for the plaintiff Mr. Shiloya holding brief for Mr. Wawire for the defendant Court Assistant: Delphine ­­