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ELCDismissedNot stated in the judgment (plaint dated 9th May 2022)

County Government of Kakamega v Mulyolo (Environment and Land Case E019 of 2022) [2026] KEELC 4123 (KLR)

Environment and Land Court
1 July 2026
2,854 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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Kakamega's county government lost its bid to repossess leased land because it couldn't produce the lease document showing what terms were broken.

What this practically means

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Executive summary

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The plaintiff, County Government of Kakamega, sued the registered lessee of plot Kakamega/Municipality/Block I/600 seeking forfeiture of the lease on account of failure to develop the property since the lease was registered on 11th October 2013. The plaintiff asserted it had complied with the law, having constituted an Appeals Panel under Gazette Notice No. 103 of 30th December 2020, published notices inviting affected persons to be heard, and issued a repossession notice dated 11th January 2022 served via WhatsApp. The defendant denied breach, asserting continued possession (structures housing Masinde Muliro University students, water, electricity and a wall), payment of rates, and that his lease ran until 1st October 2091; he also challenged the Tribunal's jurisdiction and claimed he was not meaningfully heard. Both parties called one witness. The court framed two issues: whether the defendant breached the lease terms and whether forfeiture should issue. It reviewed Article 60 of the Constitution and sections 2, 12(9), 31, 73 and 75 of the Land Act on reversion of undeveloped allocated public land and the process of forfeiture. However, the plaintiff did not produce the lease instrument as an exhibit, so the court could not ascertain the terms allegedly breached. The defendant demonstrated possession, structures and payment of rates. The court held the plaintiff had failed to prove its claim on the required standard, dismissed the suit, and awarded costs to the defendant.

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
  2. 2.Whether an order of forfeiture of lease in regard to the suit property should issue

Key legal issues

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01

Whether the defendant breached the terms of the lease

Holding

The court could not find a breach because the plaintiff did not produce the lease instrument; the defendant demonstrated possession, structures, a wall, and payment of rates

Reasoning

The plaintiff's claim for forfeiture was predicated on breach of express or implied covenants in the lease. However, the plaintiff did not produce the lease instrument as an exhibit, making it impossible for the court to ascertain the terms allegedly breached. The defendant, on the other hand, showed he remained in possession, had put up structures and a wall, and continued paying rates. The claim therefore failed on the required standard of proof.

p. 17
02

Whether an order of forfeiture should issue

Holding

Forfeiture was refused; the plaintiff failed to prove its claim to the required standard and the suit was dismissed with costs

Reasoning

Although sections 31, 73 and 75 of the Land Act permit forfeiture of a lease for breach of covenant after due notice, the right of forfeiture may only be enforced where breach is proved. The plaintiff failed to prove breach since the lease instrument was not produced. In the circumstances the court was not persuaded that the orders sought deserved to issue, and dismissed the suit with costs to the defendant.

p. 17
03

Reversion of undeveloped allocated public land under section 12(9) of the Land Act

Holding

The court acknowledged that undeveloped allocated public land automatically reverts to the national or county government, but this could not assist the plaintiff without proof of the lease terms

Reasoning

The court set out the statutory and constitutional framework: public land is allocated for sustainable development, not speculation, and section 12(9) of the Land Act provides for automatic reversion where allocated land is not developed in accordance with lease terms. This principle, drawn from Article 60 and case law, framed the legal background but did not displace the plaintiff's burden of proving the specific covenant breached.

p. 11

Legal principles established

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  • Where public land allocated to a private individual is not developed in accordance with the lease, the land automatically reverts to the national or county government (s.12(9) Land Act)
  • Forfeiture means losing a right, privilege or property without compensation as a result of breaching a legal or contractual obligation or covenant
  • The burden of proving breach of the lease rests on the lessor, who must produce the lease instrument to establish the terms alleged to have been breached

Court orders

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  1. 1.Dismissal of the plaintiff's suit
  2. 2.Costs of the suit awarded to the defendant

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 of the Environment and Land Court over land disputes (claim for forfeiture of lease over public land), pursuant to sections 31, 73 and 75 of the Land Act

Relief refused

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Order that the lease in respect of land parcel Kakamega/Municipality/Block I/600 be forfeited on account of lack of development

The plaintiff failed to produce the lease instrument, so the court could not ascertain the terms of the lease and whether they were breached; the defendant demonstrated possession, structures on the land, and payment of rates

p. 17

Costs

The plaintiff's suit was dismissed with costs to the defendant

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.

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.
p. 17Final orders - dismissal of suit
In the absence of the lease instrument, this court cannot ascertain the terms of the lease and whether the same was breached or not.
p. 17Burden of proof - production of lease instrument
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.
p. 17Defendant's evidence of possession and development
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. 11Reversion of undeveloped public land
It is so ordered.
p. 17Closing disposition

Issues in the judgment

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minor

The date of judgment is stated as 1st July 2026, which appears to be a future/erroneous date given the plaint was filed in 2022 and submissions dated October 2025

minor

The plaintiff's case name for the authority is inconsistent between the submissions and the court's analysis - 'Mwagandi' vs 'Mwangandi'

minor

The numbering of paragraphs skips from paragraph 30 to paragraph 32; paragraph 31 is missing

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 Mulyolo (Environment and Land Case E019 of 2022) [2026] KEELC 4123 (KLR)", Case Analysis (2026). Not stated in the judgment (plaint dated 9th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4123/eng@2026-07-01

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