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ELCPartially AllowedAppeal from Butali ELC Case No. 167 of 2018 (Memorandum of Appeal dated 3rd July 2023)· [2026] KEELC 1126 (KLR)

Chata v County Government of Kakamega & 2 others (Environment and Land Appeal E001 of 2023) [2026] KEELC 1126 (KLR)

Environment and Land Court
25 February 2026
6,258 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kakamega against the judgment of Hon. Z.J. Nyakundi (SPM) in Butali ELC Case No. 167 of 2018, which dismissed the appellant's claim and allowed the respondents' counterclaim, directing the appellant to facilitate transfer of parcel Kakamega/Lugari/3691 to the respondents. The appellant, registered owner of the parcel, had sued for nullification of sale agreements dated 7th December 2016 and 21st February 2017, damages, eviction, an injunction and mesne profits, arguing the Lugari Sub-County Government never paid the Kshs. 1.2 million consideration. The respondents countered that they bought from the then registered owner, Jonah Wafula Simiyu, and that payment awaited the appellant's completion documents. The 1st respondent also challenged the appeal's competence for want of a certified decree. The ELC dismissed that objection as raised too late. On the merits, the court held the agreement unambiguously required payment of the consideration to the appellant within 30 days, unconditional on registration, and that availing completion documents was the obligation of the registered owner, Jona Wafula Simiyu. The respondents' conceded non-payment was a fundamental breach. Granting them specific performance was an error that wrongly treated a private sale as a compulsory acquisition; public interest in a school did not excuse non-payment. The court set aside the trial judgment, declared both agreements null and void for want of consideration, awarded Kshs. 300,000/= damages for breach against the 1st respondent, ordered the school to vacate by 30th November 2026 with eviction in default, issued a permanent injunction effective 1st December 2026, and awarded costs of the appeal and the suit to the appellant against the 1st respondent. The mesne profits claim failed for want of strict proof. The appeal was canvassed by written submissions; the appellant's counsel did not appear on delivery day.

Key legal issues

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01

Competence of the appeal for want of a certified copy of the decree

Holding

The objection was dismissed as it was raised too late, after the appeal had been admitted and directions given

Reasoning

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.

p. 7
02

When the purchase price fell due under the sale agreement dated 7th December 2016

Holding

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

Reasoning

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.

p. 8
03

Whether the respondents breached the agreement

Holding

Yes; the respondents conceded not to have paid the consideration within 30 days or at all, breaching the sale agreement

Reasoning

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.

p. 8
04

Whether the trial court erred in granting specific performance to the respondents

Holding

Yes; specific performance was wrongly granted where the respondents had paid no consideration and had not performed their own obligations

Reasoning

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.

p. 9
05

Nullification of the agreements and entitlement to remedies

Holding

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

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Agreements dated 7/12/2016 and 21/2/2017 declared null and void for want of consideration
  2. 2.Damages for breach of contract of Kshs. 300,000/= awarded to the appellant, to be paid by the 1st respondent
  3. 3.The 2nd respondent ordered to vacate land parcel No. Kakamega/Lugari/3691 by 30th November 2026, in default eviction orders to issue
  4. 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. 5.Costs of the appeal and of the suit in the court below awarded against the 1st respondent
  6. 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

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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, "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.