https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4123

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. E019 OF 2022** **COUNTY GOVERNMENT OF KAKAMEGA……………PLAINTIFF** **VERSUS** **JAMES MANUNI MULYOLO……………...................DEFENDANT** **JUDGMENT** **Introduction** 1. In a plaint dated 9th May 2022, the plaintiff sought against the defendant the following orders; 2. **An order that the lease in respect to land parcel title number Kakamega/Municipality/Block I/600 be forfeited on account of lack of development; and** 3. **Such other order as the Honorable court may deem fit and just.** 4. The plaintiff averred that it was at all material times the lessor of the plot title No. Kakamega Municipality/Block I/600 within Kakamega Municipality (Suit property). Further that a lease was registered in favour of the defendant on 11th October 2013. That since 2013 the suit property remains undeveloped contrary to the terms of the lease. It further asserted that it expressed its intention of lawfully repossessing undeveloped allocated public land within Kakamega Municipality, which will be in accordance to its development aspirations to elevate Kakamega Municipality to city status. 5. Further that to achieve its aspirations, it published a notice with the list of undeveloped plots, and constituted an Appeals Panel of the Kakamega County Land Application, Extension of Leases and Land Administration Committee vide Gazette Notice No. 103 dated 30th December 2020 published in Gazette Volume CXXIII – No. 12 dated 15th January 2021 for purposes of giving affected individuals a fair hearing before repossession proceedings. That the Panel was had the mandate of hearing the affected individuals who had breached the special conditions on their allotment letters and leases and make recommendations on the question of repossession of public land by the plaintiff. 6. It added that on 16th February 2021, it proceeded to publish a notice in the Daily Newspapers inviting persons affected by the notices to pick suitable hearing dates for the consideration of their appeals. According to the plaintiff, the defendant was accorded an opportunity to be heard before the Appeals Panel, and that the latter upon considering the material before it, made recommendations that the plaintiff should repossess the suit property on account of the defendant’s breach of a fundamental term of the lease, having failed to develop the suit property for a period of over 8 years after registration of the lease. 7. That the defendant was issued with notice for repossession vide its letter dated 11th January 2022 which notice was served on the defendant on 31st January 2022 through WhatsApp platform. Further that the defendant breached terms of the lease. It stipulated the particulars of breach as being failure to submit to the local authority proposed building plans within reasonable time from the date of issue of certificate of lease, and failure to develop the property for over 8 years from the date of issuance of the registered lease. 8. It was maintained by the plaintiff that the defendant’s breach compromises the plaintiff’s development agenda to the detriment of Kakamega Municipality residents. The plaintiff insisted that it complied with the law in seeking forfeiture. 9. Upon service, the defendant entered appearance and filed defence dated 5th December 2023. He denied the plaintiff’s claim and stated that he has remained in active possession of the suit property, exercising ownership rights, including constructing houses occupied by Masinde Muliro University Students. He stated that the plaintiff’s aspirations of ascending to city status and its development agenda is irrelevant to the defendant’s rights. He denied having been served with any notices in relation to the hearing before the plaintiffs Appeals committee and that he was not meaningfully heard by the said tribunal. Further that the Tribunal had no jurisdiction to order repossession. He argued that as his lease had not expired, it remains valid till 1st October 2091. That the right to repossess has not been reasonably exercised. That the dispute ought to be determined by alternative dispute resolution. He sought dismissal of the plaintiff’s suit. 10. The case was heard by way of *viva voce* evidence. Both tahe plaintiff and the defendant presented one witness each. **Plaintiff’s evidence** 1. PW1 was Ronald Matende. He stated that he was a practising private physical Planner and Land Administration Consultant, who had been a member of the Appeals Panel of the Kakamega County Land Application, Extension of Leases and Land Administration Committee. He adopted the contents of his witness statement dated 1st March 2024 as his evidence in chief. His testimony was that the defendant had breached the terms of the lease by failing to present building plans to the plaintiff in six months of registration of lease and also failing to develop the suit property in accordance with the terms of the lease. He added that the defendant was heard before the Appeals Panel and that the Appeals Panel recommended for repossession of the suit property by the plaintiff on account of failure to develop the same. That the lease required him to put up a private dwelling house for one family but that he breached it by putting up buildings not within agreed specifications. The witness produced Gazette notice; newspaper advertisement; minutes of the committee hearing; letter; and excerpt of committee report. 2. On cross examination, he stated that he was not the plaintiff’s employee. That he inspected the site in issue and a report for site visit was available and captured in the Committee’s minutes. That subsequently, the defendant developed the plot by fencing but had not developed it in accordance with the Specifications in the terms of the lease in special condition No. 5. hence does not amount to development. That the defendant was to submit development plans in six months and so legally, no developments are on the plot. That what was constructed on the property was not in accordance with any approved plans. That the Committee acted in accordance with section 31 of the Land Act. He maintained that where the allocated public land is no developed, it reverts to the government. That marked the close of the plaintiff’s case. **Defendant’s evidence** 1. DW1 was James Manuni Mulyolo, the defendant. He adopted his witness statement dated 5th December 2023 as his evidence in chief. He stated that he was the registered lesee of the suit property having purchased the same from one Rashid Nasoro. That he had installed water and electricity on the property. That he has developed the property as there is a building and a wall on the property. That he prepared structural plans during covid pandemic period but he had no economical power to proceed with the developments. 2. On cross examination, he stated that the reason he was unable to submit development plans on the suit property to the plaintiff was the pendency of this suit. That he prepared the development plans during covid period. That he acquired the suit property between 2005 and 2010 and got registration in 2013. He conceded appearing before the Committee constituted by the plaintiff. That marked the close of the defence case. 3. In support of its case, the plaintiff filed written submissions dated 23rd October 2025. **Submissions** 1. The plaintiff submitted that Article 60 (1) of the Constitution required sustainable, efficient, equitable and productive use, management and holding of public land. The court was referred to the case of **Kahindi Ngala Mwagandi v Mtana Lewa v (2014) e KLR** for the argument that it is against public interest to allow a scarce resource like land to be abandoned in perpetuity. 2. It was also argued by the plaintiff that where allocated public land is not developed, the same should revert to the national or county government as provided for in section 12(9) of the Land Act. Reliance was placed on the case of **Republic v County government of Siaya Ex parte Ruth Akello Were, Rosella Nyanja (Interested party) (2021) e KLR** to buttress this argument. 3. On forfeiture, reference was made to provisions of Section 31 of the Land Act and the case of **Melisa Awuor Odera v Keringet Estates Limited (2021) eKLR** for the proposition that where there is breach of terms of a lease, the lessor is at liberty to exercise his right of forfeiture. 4. The plaintiff maintained that he is entitled to the orders sought as it had proved that the defendants violated the terms of the lease by failing to develop the suit property within the period provided in the leased and also shown that it had issued the relevant notices and given the defendants opportunity to be heard, thereby complying with the procedure for forfeiture. **Analysis and determination** 1. The court has carefully considered the parties pleadings, evidence and submissions. The issues that arise for the court’s determination are whether the defendant breached the terms of the lease issued to him and whether an order of forfeiture of lease in regard to the suit property should issue. 2. Section 2 of the Land Act requires the National Land Commission (NLC) to maintain a register of all public land converted to private land by allocation. Therefore, where public land is converted to private land by allocation, the National or County Government as the case may be, through the NLC still bears a signific ant degree of control over such land as the lease is a conditional lease. 3. Public land is allocated for purposes sustainable development and not for speculation. Article 60 of the Constitution of Kenya provides for principles of land policy and requires that land shall be held, used and managed in an equitable, efficient, productive and sustainable manner. 4. In the case of **Kahindi Ngala Mwangandi v Mtana Lewa [2014] e KLR,** the court held thatit is against public interest and the Constitution to allow land to lie abandoned in perpetuity. 5. Where public land allocated to a private individual is not developed as required in the lease instrument, the land automatically reverts back 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. 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. Essentially, on application by the National or County Government as the case may be, for the recovery of land, 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 has served on the lessee one month’s notice stating the breached covenant or unpaid rent, the Court has jurisdiction to declare a lease forfeited. 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. Whether a lease is in regard to public or private land, (community land excluded), the process of forfeiture is the same. Section 73 (1) of the Land Act provides as follows; **“Lessor’s right of forfeiture** 1. **Subject to the provisions of section 76 and to any provisions to the contrary in the lease, the lessor shall have the right to forfeit the lease if the lessee—** 1. **Commits any breach of, or omits to perform, any agreement or condition on his part expressed or implied in the lease; or** * 1. **Is adjudicated bankrupt; or** 2. **Being a company, goes into liquidation.** 1. **The right of forfeiture may be—** 1. **Exercised, where neither the lessee nor any person claiming through or under him is in occupation of the land, by entering upon and remaining in possession of the land; or** 2. **Enforced by action in the court.** 2. **The acceptance by the lessor of any rent after the service of a notice of forfeiture under section 75 does not operate as a waiver of the lessor’s right of forfeiture unless the lessor has by any other positive act shown an intention to treat the lease as subsisting.”** 3. Section 75 of the Land Act provides 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. Under sections 31 and 73 of the Land Act, the lessor’s right of forfeiture may be exercised where there is failure on the part of the lessee to pay rent and royalties or where he/she is guilty of breach of express or implied covenants in the lease or where he or she is adjudged bankrupt or being a company, where the same has gone into liquidation. In the instant case, the plaintiff’s basis for forfeiture is predicated on its assertions that the defendant breached the terms of the lease instrument. Therefore, the plaintiff’s claim turns on whether the defendant breached expressed or implied terms of covenants contained in the lease instrument. Section 107 of the Evidence Act places the burden of proof of a claim on the plaintiff, while section 109 places the burden of proof of a fact on the person alleging the existence of such fact. 2. However, in the instant case, the plaintiff did not produce the lease instrument as an exhibit. In the absence of the lease instrument, this court cannot ascertain the terms of the lease and whether the same was breached or not. The defendant has demonstrated possession of the suit property where he has put up structures and a wall, and continues to pay rates as and when they fall due. 3. For the above reasons, I am not persuaded that the plaintiff deserves the orders sought. In the premises, I find and hold that the plaintiff has failed to prove its claim against the defendant on the required standard and I hereby dismiss the plaintiff’s suit with costs to the defendant. 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY, 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Mr. Songa holding brief for Ms. Natwati for the plaintiff Mr. Lubulellah for the defendant Court Assistant: Delphine