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ELCAllowedNot stated in the judgment

County Government of Kakamega v Mulama (Environment and Land Case E22 of 2022) [2025] KEELC 5524 (KLR)

Environment and Land Court
23 July 2025
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court took back allocated public land because the owner left it undeveloped, confirming development deadlines in government leases are strictly enforced.

What this practically means

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Executive summary

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The plaintiff, the lessor of land parcel Kakamega/Municipality/Block III/123 within Kakamega Municipality, sued for forfeiture of the lease registered in favour of the defendant on 26th October 2007, with a certificate of lease issued on 23rd December 2016, on account of the defendant's failure to develop the suit property. The plaint alleged breach of Special Condition No. 2 of the lease, which required the lessee to submit building plans within six months of registration and to develop the land within 24 months, and carried a re-entry default clause. The plaintiff pleaded that it published lists of undeveloped plots, constituted an Appeals Panel under Gazette Notice No. 103, afforded the defendant a hearing, and issued repossession notices, including one served via WhatsApp on 31st January 2022. The defendant neither entered appearance nor filed a defence, and the case proceeded by viva voce evidence from the plaintiff's sole witness, a member of the Appeals Panel. The court framed two issues: whether the defendant breached the lease and whether forfeiture should issue. It held that despite the undefended status of the suit, the plaintiff bore the burden of proof under section 107 of the Evidence Act, and that the plaintiff had discharged it. Relying on Article 60 of the Constitution and sections 2, 12(9), 31, 73(1) and 75 of the Land Act, the court held the development covenant fundamental, that undeveloped allocated public land automatically reverts to Government, and that the plaintiff had followed the prescribed forfeiture procedure. The lease was ordered forfeited for lack of development.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant breached the terms of the lease issued to him on 23rd December 2016
  2. 2.Whether an order of forfeiture of the lease in regard to the suit property should issue
  3. 3.Whether the plaintiff complied with the procedure for forfeiture

Key legal issues

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01

Whether the defendant breached the fundamental terms of the lease

Holding

The court held that the defendant breached Special Condition No. 2 requiring submission of building plans within six months and development within 24 months, so the plaintiff's right of forfeiture had accrued.

Reasoning

The lease required the defendant to submit building plans within six months of registration and to develop the land within 24 months. Evidence, including the certificate of search, lease and committee report, showed the property remained undeveloped for over 10 years. Development was held to be a fundamental covenant of leases over allocated public land, and its breach triggered the lessor's accrued right of forfeiture under the Land Act.

p. 7
02

Whether the plaintiff complied with the statutory procedure for forfeiture

Holding

The court found the plaintiff complied, having published a notice, served a further notice by WhatsApp, offered the defendant a hearing before its Appeals Panel, and allowed over 30 days to remedy the breach.

Reasoning

Sections 73(1) and 75 of the Land Act require a notice of not less than thirty days specifying the breach before forfeiture. The plaintiff published notice on 16th February 2021, served a repossession notice on 31st January 2022 by WhatsApp, and accorded the defendant an opportunity to be heard before the Appeals Panel. The suit, filed on 13th May 2022, came well after the notice period, during which the defendant did not remedy the breach.

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Whether undeveloped allocated public land reverts to the Government

Holding

The court held that where allocated public land is not developed per the lease, it automatically reverts to the national or county government per section 12(9) of the Land Act and Article 60 land policy principles.

Reasoning

Article 60(1) of the Constitution requires land to be held, used and managed equitably, efficiently, productively and sustainably. Allocated public land remains a conditional lease over which the National Land Commission and the granting government superintend. Public land is allocated for sustainable development, not speculation; where a lessee fails to develop, equity requires the land be taken away and given to those who can put it to productive use.

p. 4

Legal principles established

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  • Public land allocated to a private individual that is not developed as required by the lease automatically reverts to the National or County Government.
  • The covenant to develop allocated public land is so fundamental that breach cancels the lease.
  • An undefended claim must still be proved to the required standard by the claimant.

Court orders

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  1. 1.That the lease in respect to land parcel title No. Kakamega Municipality/Block III/123 is forfeited on account of the defendant's lack of development of the land

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Land Act and Article 60 of the Constitution over forfeiture of a lease of public land converted to private land by allocation

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Ultimately, I find and hold that the plaintiff has proved its case on the required standard and its claim is hereby allowed as prayed. Consequently, an order is hereby issued that the lease in respect to land parcel title No. Kakamega Municipality/ Block III/123 is hereby forfeited on account of the defendant's lack of development of the land.
p. 7Final orders - forfeiture of lease
It is so ordered
p. 7Disposition
The covenant to develop the land is so central and fundamental to the lease instrument that breach of the same would automatically cancel the lease.
Fundamental nature of development covenant
Notwithstanding the fact that this matter was undefended, the plaintiff bears the burden of proving its claim.
p. 3Burden of proof in undefended suits
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.
p. 4Reversion of undeveloped allocated public land

Issues in the judgment

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minor

The names of the parties do not appear anywhere in the judgment, which refers to them only as 'plaintiff' and 'defendant'.

minor

The judgment is inconsistent as to the duration of non-development, describing it variously as over 5 years and over 10 years.

minor

The judgment makes no costs order despite the claim being allowed.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Kakamega v Mulama (Environment and Land Case E22 of 2022) [2025] KEELC 5524 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5524/eng@2025-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.