Chata v County Government of Kakamega & 2 others (Environment and Land Appeal E001 of 2023) [2026] KEELC 1126 (KLR)
The bottom line
#The Environment and Land Court ruled a county government and school must pay for private land they bought, voiding the sale and ordering them off the land.
What this practically means
#Executive summary
#Key legal issues
#Competence of the appeal for want of a certified copy of the decree
The objection was dismissed as it was raised too late, after the appeal had been admitted and directions given
Order 42 Rule 2 objections should be raised at the preliminary stage before directions on hearing. The respondent did not contest jurisdiction at admission; the appeal was admitted and the judgment appealed against was on record. The court therefore held the objection was an afterthought raised too late in the day.
When the purchase price fell due under the sale agreement dated 7th December 2016
Payment of Kshs. 1,200,000/= was due to the appellant within 30 days of signing, unconditionally on registration or presentation of completion documents; the obligation to avail title documents lay with the registered owner Jona Wafula Simiyu
The agreement was clear and unambiguous: the consideration was payable to the appellant in 30 days of signing, and it was the vendor (Jona Wafula Simiyu), in whose name the land was registered, who was to avail the completion documents. The trial court erred in finding payment was conditional on the appellant availing completion documents. There was also no evidence of procurement regarding the transaction.
Whether the respondents breached the agreement
Yes; the respondents conceded not to have paid the consideration within 30 days or at all, breaching the sale agreement
The purchase price was never paid. The 2019 cheque attempts postdated both the agreement and the filing of the suit, and the respondents' pleaded excuse (waiting for registration) contradicted their evidence that cheques were issued in 2019, showing they were not candid. Their continued occupation violated the appellant's rights under sections 24, 25 and 26 of the Land Registration Act.
Whether the trial court erred in granting specific performance to the respondents
Yes; specific performance was wrongly granted where the respondents had paid no consideration and had not performed their own obligations
Specific performance requires a valid enforceable contract and a party who has performed his obligations, with damages inadequate. Granting it to unpaid respondents treated the sale agreement as a compulsory acquisition, an injustice the court likened to Ahab taking Naboth's vineyard. A sale agreement places the parties on equal footing and public benefit does not excuse non-payment.
Nullification of the agreements and entitlement to remedies
The agreements of 7/12/2016 and 21/2/2017 were declared null and void for want of consideration; damages of Kshs. 300,000/=, eviction and a permanent injunction were granted
The appellant had sought nullification for want of consideration; since consideration was never paid, the contract was declared null and void. The respondents thereby lost any right to occupy the land. The appellant suffered financial loss from denial of use of his land, justifying Kshs. 300,000/= damages against the 1st respondent, and the school's occupation had no basis.
Legal principles established
#- The parties are bound by the terms of their contract and courts will not rewrite contracts for parties
- Specific performance is granted only to enforce a valid contract where the plaintiff has performed his obligations and damages are not an adequate remedy
- Mesne profits are special damages which must be both pleaded and strictly proved
- A county government or public school acquiring private land through a sale agreement must pay the agreed consideration; public interest does not justify non-payment
- A first appellate court must reanalyze, reassess and re-evaluate the evidence and make its own conclusions, allowing for the fact that it did not see or hear the witnesses
Court orders
#- 1.Agreements dated 7/12/2016 and 21/2/2017 declared null and void for want of consideration
- 2.Damages for breach of contract of Kshs. 300,000/= awarded to the appellant, to be paid by the 1st respondent
- 3.The 2nd respondent ordered to vacate land parcel No. Kakamega/Lugari/3691 by 30th November 2026, in default eviction orders to issue
- 4.A permanent injunction issued restraining the defendants, their agents, servants, employees and anyone acting on their behalf from interfering with the plaintiff's use and enjoyment of his rights on land parcel No. Kakamega/Lugari/3691, effective from 1st December 2026
- 5.Costs of the appeal and of the suit in the court below awarded against the 1st respondent
- 6.The trial court judgment set aside and substituted with an order dismissing the respondents' counterclaim and allowing the appellant's claim
- On appeal from
- Senior Principal Magistrate's Court (Butali)
- Butali ELC Case No. 167 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from a subordinate court (Environment and Land Court, appeal against dismissal of suit and allowance of counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chata v County Government of Kakamega & 2 others (Environment and Land Appeal E001 of 2023) [2026] KEELC 1126 (KLR)", Case Analysis (2026). Appeal from Butali ELC Case No. 167 of 2018 (Memorandum of Appeal dated 3rd July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1126/eng@2026-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.