Peter Ouma Omolo & 1 other v County Government of Migori & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that land the Government compulsorily acquires stays public land, and former owners cannot reclaim it just because it sits unused.
What this practically means
#Executive summary
#Key legal issues
#Whether the Government acquired the entire North Sakwa/Kamasoga/33
The Government acquired the entire 3.4-hectare parcel following the Gazette Notice of 8 October 1976, compensated the appellants, and became registered owner in 1977.
The Court found the Gazette Notice targeted the whole 3.4 hectares; the register extract, green card, certificate of search and Part Development Plan corroborated full acquisition and registration. Oral evidence from the District Land Registrar confirmed compensation. The appellants, as party asserting ownership, bore the burden of proof and failed to discharge it.
Whether the 2002 subdivision was lawful
The subdivision was fraudulent, illegal and void because it was executed by the appellants after the land had become Government land, without compliance with the Registered Land Act requirements for mutation.
By October 2002 the Government was the registered owner; only it could execute mutation forms. The mutation forms lacked the surveyor's name and the Registrar's written instructions required under section 19(1) of the Registered Land Act, and affected persons were not involved. The Registrar had unilaterally lifted the 1977 restriction.
Effect of non-utilisation of compulsorily acquired land
Non-utilisation of acquired land does not amount to a licence for the former owners to invade it; reversion requires the procedure under section 17 of the Land Acquisition Act.
The Court distinguished Town Council of Awendo v Nelson Odour Onyango, noting that where the Government does not use acquired land, original owners may apply under section 17 of the Land Acquisition Act for re-survey and reversion, but no such procedure was followed here.
Legal principles established
#- On a first appeal, the Court of Appeal must subject the whole of the evidence to a fresh scrutiny and arrive at its own independent conclusions, bearing in mind that it did not hear the witnesses first hand.
- Land compulsorily acquired by the Government becomes public land and does not revert to former owners merely because the Government does not utilise it; reversion requires the statutory procedure under section 17 of the (repealed) Land Acquisition Act.
- The burden of proof in a civil claim lies on the party who would fail if no evidence at all were given on either side; the standard is the balance of probabilities.
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Kisii
- HCCC No. 144 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onyango v OCS Awendo Police Station & 2 others (Environment and Land Case 61 of 2017) [2026] KEELC 4777 (KLR)[2026] KEELC 4777 (KLR)14 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Peter Ouma Omolo & 1 other v County Government of Migori & 1 other", Case Analysis (2018). Civil Appeal No. 232 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/517/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.