County Government of Kakamega v Mitha & Company Limited (Environment and Land Case E032 of 2022) [2026] KEELC 4481 (KLR)

fair hearing before repossession proceedings. That the Panel was tasked to hear the afiected individuals who had breached the special conditions on their leases and make recommendations regarding repossession of public land by the plaintifi. 4. It asserted that on 16th February 2021, it proceeded to publish a notice in the Daily Newspapers inviting persons afiected by the notices to pick suitable hearing dates for the consideration of their appeals. That 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 plaintifi should repossess the suit property on account of the defendant’s breach of a fundamental term of the lease, by his failure to develop the suit property for a period of over 25 years after registration of the lease. 5. That it issued the defendant 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. The plaintifi averred that the defendant had breached terms of the lease. It enumerated 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 25 years from the date of issuance of the registered lease. 6. The plaintifi maintained that the consequence of the defendant’s breach was the compromise the plaintifi’s development agenda to the detriment of the residents of Kakamega Municipality. The plaintifi emphasized that it complied with the law in seeking forfeiture. 7. Upon service, the defendant filed defence dated 28th October 2023 wherein it denied the plaintifi’s claim and stated that the suit property was protected under section 28 of the Registered Land Act (repealed) and that the same had not been compulsorily acquired as required under section 30 of the said Act. It argued that it was only the National Land Commission with power to compulsorily acquire land on behalf of the national or county government. That the plaintifi has not engaged the defendant in any discussion over repossession of the suit property. That the repossession is arbitrary as the same is without any compensation. It denied being made aware of any Appeals hearing and stated that special condition No. 2 in the lease has been overtaken by laches. It also denied receiving notice of repossession. 8. The case was heard by way of viva voce evidence. Both the plaintifi and the defendant presented one witness each. Plaintifi ’s evidence 9. PW1 was Ronald Matende Omwoma, a practising private physical Planner and Land Administration Consultant, who had been a appointed by the plaintifi as 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 19th March 2024 as his evidence in chief and produced documents attached to the list of documents dated even date and on the supplementary list dated 9th May 2022. His testimony was that the plaintifi was lessor of the suit property. That it published a notice in the Daily newspaper on 5th October 2023 inviting afiected persons who were lessees of undeveloped plots to pick suitable hearing dated so as to be heard on repossession of their plots. That the defendant failed to appear before the Committee formed for that purpose, but that the latter went ahead to recommend repossession. That the defendant was then issued with a repossession notice in the letter dated 11th January 2022 on account of failure to develop the suit property. The witness produced gazette notice, letter, excerpt of committee report, newspaper advertisement, newspaper articles on repossession, list of plots to be repossessed, repossession notice, certificate of oficial search, lease, advertisement. That marked the close of the plaintifi’s case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 2

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10. On cross examination, he stated that he was a land administrator expert. That the defendant was served through newspaper notice. That the suit property should be repossessed for failure to comply with the terms of the lease. Defendant’s evidence 11. DW1 was Mahbub Mitha, a director of the defendant. He adopted his witness statement as his evidence in chief. His testimony was that he never came across the notices published by the plaintifi and that the plaintifi has never engaged him in discussions surrounding repossession of the suit property. He further stated that Condition No. 2 of the lease was overtaken by laches on the part of the plaintifi and does not apply retrospectively. Further that having been retired, he has faced challenges in mobilizing time and financial resources to initiate development projects on the suit property and hence the defendant has not been in a position to develop the suit property. That he was positive that the plaintifi will realize its developmental objectives. 12. On cross examination he stated that he was currently based in Canada and resides in Kisumu. That the defendant has three directors. That he last visited the suit property four years ago. That the suit property was vacant. That they were planning to develop the suit property and thought they could do so when they are ready with the necessary financial resources. That he had no documents to show he had health challenges. He conceded that the defendant did not present development plans to the County Government for approvals. In re examination he stated that he was ready to develop the suit property. That marked the close of the defence case. 13. Parties filed written submissions in support of their respective cases. On record are the plaintifi’s submissions dated 24th November 2025 and the defendant’s submissions dated 21st January 2026; both of which this court has duly considered. Plaintifi ’s submissions 14. Counsel for the plaintifi submitted that special condition 2 on the lease required the lessee in six months of registration of the lease to submit to the plaintifi development plans of the suit property and develop the same in 24 months but that the same was not done by the defendant. Counsel argued that the lease having been registered in 1996, development was to be done by 1998. 15. It was further contended for the plaintifi 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 position. 16. Counsel cited Sections 31, 33 and 77 of the Land Act 2012 in regard to forfeiture and the case of Melisa Awuor Odera v Keringet Estates Limited (2021) eKLR for the argument that where there is breach of terms of the lease, the lessor has a right to forfeiture. 17. It was also contended for the plaintifi that the plaintifi having proved that the defendant violated the terms of the lease by failing to develop the suit property as required in the lease instrument, and the plaintifi having issued the relevant notices and given the defendant opportunity to be heard, the plaintifi deserves the orders sought. The court was referred to the case of Victor Mabachi & Another v Nurtun Bates Limited [2013] KECA 204 (KLR) for the proposition that companies are separate entitles from their directors and hence the excuses of DW1 could not be relied upon for the defendant’s noncompliance with the terms of the lease. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 3

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Defendant’s submissions 18. Counsel for the defendant submitted that the defendant holds a leasehold interest in the suit property and that in 2021, the plaintifi issued Gazette Notice and newspaper publications regarding hearings on repossession of the suit property. He argued that provisions of Order 5 Rule 3 (b) of the Civil Procedure Rules on service of notice to a corporation was not complied with, resulting in the non-attendance of the defendant. Counsel argued that there were procedural defects and no valid notice was served hence the right to fair administrative action was violated contrary to Article 47 of the Constitution of Kenya and section 4 (3) of the Fair Administrative Action Act. Reliance was placed on the cases of Omino v Agola & 2 Others [2023] KEELK 20518 (KLR), Eunice Khalwali Miima v County Government of Kakamega [2021] e KLR and Republic v County Government of Kiambu ex parte Githunguri Water & Sanitation Company Limited [2018] e KLR. 19. Regarding forfeiture, counsel for the defendant referred to sections 73, 75 and 76 of the Land Act and argued that forfeiture can only proceed where a 30-day notice is issued specifying the breach and opportunity to remedy. Counsel argued that forfeiture would erode investor confidence and run contrary to sustainable development. That the defendant reafirms good faith and pledges to develop the suit property in 24 months from the date of judgment. Analysis and determination 20. The court has carefully considered the pleadings, evidence as well as rival submissions. Two issues arise for the court’s determination, namely; whether the defendant breached the terms of the lease and whether the plaintifi deserves an order of forfeiture of lease regarding the suit property. 21. As 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, it follows that where public land is converted to private land by allocation, the National or County Government as the case may be, through the National Land Commission (NLC) still bears a considerable degree of control over such land as the lease is a conditional lease. 22. Article 60 of the Constitution provides for principles of land policy and requires that land shall be held, used and managed in an equitable, eficient, productive and sustainable manner. The same provides as follows; “ Principles of land policy. 60. (1) 23. Land in Kenya shall be held, used and managed in a manner that is equitable, eficient, productive and sustainable, and in accordance with the following principles— a. equitable access to land; b. …………… c. sustainable and productive management of land resources;” Therefore, public land is allocated for purposes of sustainable development and not for speculation. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 4

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lessee must meet the threshold of equity, eficiency, productivity and sustainability, and in default, the land reverts to Government. Therefore, upon allocation of public land, the lessee is expected to add value to the land by developing the same as provided for in the lease. The condition to develop the land is fundamental to the lease, so that breach thereof results in cancellation of the lease. In the case of Kahindi Ngala Mwangandi v Mtana Lewa [2014] e KLR, the court was of the view that it is against public interest and the Constitution to allow a scarce resource like land to lie abandoned in perpetuity. 24. 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.” 25. In the instant case, the defendant admitted that it has no financial capability to develop the suit property. It is now 25 years since the lease herein was registered in favour of the defendant. Allocation of public land is not for speculative purposes. It is intended to enable sustainable development and where a lessee is unable to develop the same, it ought to be repossessed and allocated to those with the ability to develop the land. The defendant having confirmed that currently, it has no financial resources to develop the suit property, it serves no purpose for it to continue holding the same, because for a quarter a century, no value has been derived from the allocation of the suit property to the defendant. 26. Further, it is not disputed that the lease in favour of the defendant in regard to the suit property was registered in 1996. It is also not disputed that the covenants in the lease required the defendant to submit development plans to the plaintifi in six months of registration of the lease and develop the property in 24 months. It is further not disputed that for the last 25 years, no development plans had been submitted to the plaintifi and no developments have been done on the suit property, which remains vacant to date. That being the case, it is clear that the defendant breached Special Condition No. 2 of the lease which required it to submit its building plans for the development of the suit property to the plaintifi, within six months of registration of the lease and to develop the property in 24 months of the registration of the lease. 27. In the premises, I find and hold that the defendant having failed to develop the suit property within the time prescribed in the lease, has breached the fundamental terms of the lease herein, and therefore the plaintifi has the right of forfeiture. 28. 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.” 29. Essentially, forfeiture means losing a right, privilege or property without compensation, as a result of breaching a legal or contractual obligation or covenant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 5

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30. Section 31 of the Land Act provides for forfeiture of lease in respect to 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.” 32. It follows that where the lessee fails to pay the reserved rent for twelve months or where they breach any of the covenants of the lease, and after the lessor services the lessee one month’s notice stating the breached covenant or unpaid rent, the Court has jurisdiction to declare a lease forfeited upon application by the lessor. 33. 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. 34. 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— a. Commits any breach of, or omits to perform, any agreement or condition on his part expressed or implied in the lease; or b. Is adjudicated bankrupt; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 6

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c. 2. 3. 35. Being a company, goes into liquidation. The right of forfeiture may be— a. 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 b. Enforced by action in the court. 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.” 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.” 36. Regarding the 30 day notice, the evidence before court is clear that the public including the defendant were informed through Gazette Notice and newspaper advertisements of the intention to repossess undeveloped plots in Kakamega town. The purpose of the notice is to grant the lessee the opportunity to remedy the breach. In the instant case, it is clear that the defendant has no financial capability as of today to remedy the breach. 37. On whether the defendant complied with the process of forfeiture, the evidence presented demonstrated that the plaintifi 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 gave the defendant the opportunity to be heard by its Appeals Panel before the right of forfeiture was exercised. This suit having been filed on 13th May 2022, it is clear that the defendant has had more than 30 days to ofier to remedy the breach, but did not do so. For those reasons, I therefore find and hold that the plaintifi complied with the required procedure in exercising its right of forfeiture and is therefore entitled to the orders sought in the plaint. 38. In the end, I find and hold that the plaintifi has proved its case against the defendant 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/618 is hereby forfeited on account of the defendant’s lack of development of the land. As no costs were sought, I make no order as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 7

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39. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 8TH DAY OF JULY, 2026. A. NYUKURI JUDGE In the presence of; Mr. Wabuko holding brief for Ms. Mbaka for the plaintifi Mr. Menezes for the defendant Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4481/eng@2026-07-08 8

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