Recently the County Government of Kakamega gave notice of its intention to repossess all undeveloped leasehold plots within Kakamega Municipality. This act was met with a furious reaction from landowners who thought that the County government was overstepping its mandate. Some alleged that such powers only belong to courts of law, while others misconstrued the intended action as an indirect case of compulsory acquisition. Other reactions were more political and personal and alleged that some individuals who have recently acquired wealth through corruption wanted to grab their land. These reactions come from all sorts of sources, including the legal fraternity, civil society, individual landowners, and even Government officials. Whichever the case, it was clear that very few people understood the limitations, principles, and procedures, including terms and conditions governing private leasehold land emanating from public land. This article is meant to shed some light on this rare aspect of land administration.
Leasehold Interest in Land
Leasehold interests are some of the most restricted and least privileged rights in a property. The sustainability of leasehold interests is sanctioned on adherence to stringent terms and conditions controlled by the lessor or the person who grants the lease. Williamson et.al, (2010) defines leasehold as ‘property right created by a lease, which is a contract by a landlord (the lessor) giving exclusive possession to a tenant (lessee) for an agreed period of time’… and on certain terms and conditions. This is different from freehold land which is a free tenure with maximum rights permissible within the tenure system for an indefinite duration (Williamson et.al, 2010). Leasehold interest may arise from either private land owned by individuals (private leases) or from public land owned by the government (public leases). In Kenya, land ownership in most urban areas is dominated by Public leases. However, lease management and administration remains one of the least attractive aspects of land administration scholars (Wheeler, 1987)
Leasehold rights are alienated for a specific period of time, and their sustainability is subject to strict adherence to a several conditions. Public leasehold in Kenya is granted for either ninety-nine years or thirty-three year depending on the planned use of the land. Lease for agricultural or ranching purpose are allocated for thirty three years or less while ninety nine years is granted for leases in for urban development. Besides terms, urban leases are subjected to strict conditions to ensure continued and controlled development and payment of rates and rent. Systems of lease administration are meant to ensure financial benefits accrue to the lessor as stated in the lease agreement, and the lessee adheres to development conditions to facilitate desired urban development vision.
The need for development conditions
What is the reason for imposing development conditions on leasehold land? In order to understand why development conditions are imposed on lease agreements, it’s important to appreciate the reason why the government alienates public land to private individuals. Generally, land may be allocated by the government to citizens and other entities either on equity grounds or for productive investment, or environmental protection and conservation. The equity principle mostly applies to land allocated on freehold tenure by virtue of entitlement through acquired customary rights or on the basis of the right to land as a citizen (Matende-Omwoma, 2021). The equity principle may be applied in urban areas for the formalization of informal settlements on the basis of citizens’ right to living space. However, it should be appreciated that the majority of public land allocated in urban areas are meant for productive investment only. This may take the form of industrial, residential, commercial or a mixture of commercial and residential investments. Allocation of land for productive investment is expected to spur not only urban growth but also to the development of the entire national economy in order to contribute to increased income through employment and provision of space for business operations. Thus, the alienation of public land in urban areas for private development is critical for achieving urban growth and the development of the national economy.
Keeping leased public land undeveloped for a long period, stifles urban development and denies residents access to employment, business opportunities, decent housing, infrastructure and leisure. Such undeveloped land leads to urban sprawl and informal developments in the rural areas surrounding the urban centre and may in the long run affects overall agricultural productivity in the region and lead to slum development. According to the laws of Kenya, leased public land in urban areas should be developed within forty eight months after the actual registration of the lease agreement. Development conditions are not only meant to hasten controlled urban development but also to avoid use of public land by individuals for speculation, profiteering and land hoarding.
Ownership of leasehold land is not absolute to the lessee. The government retains substantive interests and rights to enable policing of development on the leased land. According to Siganga (1997), the administration of land through the use of leases allows a landlord to retain control of his land even as he gives up physical possession. The terms and conditions of the lease agreements are used by the landlord to maintain this control during the term of the lease. Problems arise when the landlord or tenant breaches the terms or conditions of the lease (Siganga, 1997)
Development conditions are also aimed at directing the lessee to develop their land in accordance with approved physical development plans. Section 12(7) of the Land Act, requires that public land be allocated only after being planned, surveyed and serviced. Development conditions thus restrict the allottee to developing the plot for a specific purpose and not any other. Save for affirmative action considerations, allocation principles requirements for public land fevour those who have ready capital for development. Thus, after such land has been advertized for allocation, applicants are required to indicate their development capacity through healthy bank statements or bank guarantees and undertake to develop the land within 48 months after actual registration of the lease. Advertisement for allocation of public land is normally done in open media complete with special conditions, so that the applicants may have prior knowledge of the implications and obligations that go with such a lease allocation.
Rights, covenants and privileges
Leasehold title is actually a covenant between the lessor and lessee. The lessor gives the terms and conditions to the lessee who must comply with them in order to enjoy his rights of occupation, privileges and freedom from interruption by the lessor. It is clear that the rights of the lessee can only be sustained by compliance to terms and conditions imposed by the lessor. In the advertisement of public land for allocation, the government makes an offer to allocate land on certain terms and conditions. Upon allocation, this offer is formalized through a letter of allotment in which the lessee is obliged to accept the terms and conditions in writing and make the required statutory payments within thirty days of the offer. Acceptance of conditions and payment of statutory payment seals the agreement between the government and the allottee. Execution of the formal lease document between the lessee and the lessor, and issuance of a lease certificate upon registration legally binds the lessee to the lessor terms and conditions of the lease. This forms a covenant between the lessor and the lessee.
The covenant also gives the lessee pre-emptive rights upon the expiry of the lease. However, these pre-emptive rights to lease extension or renewal are subject to compliance with terms and conditions in the subsisting lease agreement. Section 24, 25 and 26 of the Land Act gives more information on the obligations of the lessor and lessee in the covenant.
Breach of Terms and conditions of lease
The Land Act No.6 of 2012 tend to recognize two main circumstances under which lessee may forfeit their leasehold interest in public land: non-payment of rent and failure to comply with development conditions attached on the lease agreement. Failure to comply with the obligations or liabilities agreed upon in the lease agreement by the lessee constitutes a breach of the terms and conditions of lease (Tenga and Mramba, 2008). Moreover, studies have found that some clauses in the lease agreement are more prone to breach than others (Chomba, 1992; Mutua, 1989; Kariuki, 1990; Mutiso, 1989). Some of the conditions that are more prone to breaching include timely presentation of building plans and specification, completions of building within the stipulated time period and payment of rent in time.
The type and extent of development allowed on a leasehold property is usually indicated in the lease agreement. Lessees may breach this clause by erecting buildings whose plans have not been approved by the government, such buildings may not meet the planning regulations, for instance for plot coverage or user (Siganga, 1997). Other forms of breach may include subleasing the plot without the consent of the lessor and building unapproved illegal extensions to the main building.
Section 12(9) of the Land Act states that ‘where the land allocated under section 12(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…’. This section may be interpreted to imply that unlike non-payment of rent, the breach of lease covenant relating to non-development within a specified period has no other remedy other than automatic reversion of land to the Government. Breach of rent payment on the other hand may be remedied by impositions of penalties and enforcement through auctions.
There are numerous conditions binding the lessor and the lessee in a lease agreement. The centrality of controlled development on leased public land is indicated by the fact that the first nine conditions of the lease are all related to the development of the plot. The first condition states that all buildings erected on land shall be in conformity with plan and specification previously approved in writing by the government. Thus, any developments or buildings on the land that are not based on approved plans and specifications are considered to illegal, and may not be treated as development in the strict legal sense. The second condition stipulates that plans and specifications to develop the plot should be submitted within the first six months of actual registration of the lease, and development of the plot should be completed twenty four months (this has been enhanced to 48 months) after registration of the lease. The condition expressly states that, failure to adhere to this timelines or default of this condition ‘shall make it lawful for the government to re-enter into or upon the land, and thereupon the terms hereby created shall cease but without prejudice to right of remedy (paraphrased). The remedy expected in this case may relate to grant of extension of the building period for a structure that is under construction and nearing completion.
Conditions also stipulate what the lessee should do if he/she is unable to develop the plot or complete development within the specified period. Other subsequent development conditions stipulate the use to which land should be put, site coverage and other specific development control measures. Unlike the breach of non-development, other breaches which may occur by failure to adhere to development standards and user are capable of remedy. Breach of terms and conditions of lease may lead to forfeiture of leasehold ownership by the lessee leading to re-entry or repossession by the lessor. Forfeiture and repossession are therefore just different sides of the same coin.
Forfeiture of lease
Williamson et al., (2010) defines forfeiture as a right to regain possession of leased or mortgaged premise if the tenant or borrower breaches conditions contained in the agreement. Oxford Dictionary of Law 5th edition of 2003 defines forfeiture as Loss of property or a right as a consequence of an offence or of the breach of an undertaking. Both definitions are acceptable, the former defines the concept from the lessor point of view while the later looks at the concept from the lessee’s context. Whatever the case, forfeiture makes the lessee to lose his rights which are regained by the lessor. Forfeiture of leasehold interests must happen through a court of law if the lease agreement is registered; and by notice and re-entry if the lease is not registered. In any case, forfeiture principle is intrinsic not only land but all properties possessed by man. Anything owned by man that is associated with unlawful action can be forfeited.
Grounds for forfeiture of lease
According to the Government Land Act cap 281( repealed), ‘he rent or royalties or any part thereof reserved in a lease under the Act is at any time unpaid for the space of thirty days after the same has become due, or if there is any breach of the lessee’s covenants, whether express or implied by virtue of this Act, the Commissioner may serve a notice upon the lessee specifying the rent or royalties in arrear, or the covenant of which a breach has been committed, and at any time after one month from the service of the notice may commence an action in the High Court for the recovery of the premises, and, on proof of the facts, the High Court shall, subject to relief upon such terms as may appear just, declare the lease forfeited, and the Commissioner may re-enter upon the land’. Failure to pay rent, rates and other charges imposed by the government, and breach of covenant are the grounds upon which forfeiture may be granted by court. However, breaches related to monetary payment are all capable of remedy through payment of damages in form of interests, penalties and fines.
Section 31 0f the Land Act No 6 of 2012, gives two main grounds upon which public leasehold land may be forfeited, these include unpaid rent and breach of covenant. Section 73 provides more grounds for Lessor’s right to forfeiture; these include a situation where the lessee has been adjudicated bankrupt or the lessee being a company goes bankrupt. According to the Oxford Dictionary, property may be forfeited if it is illegally possessed; or if its associated with misuse of drugs or drug trafficking offence; or if it’s used or intended to be used for crime ( e.g. get-way car in robbery).
Procedures for Forfeiture
Forfeiture of lease is actually a civil court process which may commence via originating summons by the lessor. The lessor may approach the court by way of plaint where facts or evidence are given by way of an affidavit and submissions. The affidavit should clearly inform the court about the details of the property, the extent of the breach of lease agreement and the kind of remedy or relief sought from the court
Section 31 (1) of the Land Act provides that, the government may ‘serve notice upon the lessee specifying the rent or royalties in arrears or the covenant of which the breach has been committed; commence an action in court for recovery of the land at any time at least one month after serving the notice’. The court shall declare the lease forfeited on proof of facts contained in the affidavit sworn by the lessor. Any relief against forfeiture granted by the court under its powers shall only be guided by the principles of the doctrine of equity. Section 75 of the Land Act emphasizes the importance of sufficient notice to the lessor as a prerequisite to forfeiture. It states that no lessor is entitled to exercise the right of forfeiture for the breach of any agreement or condition in the lease, until the lessor has served on the lessee notice of not less than thirty days. In the notice, the lessor should specify, the particular breach complained of, and if the breach is capable of remedy, the notice should include the remedy required of the lessee within such a reasonable period. Remedy that may be required in case of breach of development conditions may include, granting of extra time to complete the building or to make adjustments for breached standards or to apply for a change of user. Breaches involving complete non-development of the plot, negligence or abandonment of site in disused state may not be capable of remedy.
As it has been noted, sufficient notice is a necessary precedence for a successful forfeiture process in court. The notice should clearly explain to the lessee the nature and extent of the breach committed and if the breach is capable of remedy, gives reasonable time for the default to be remedied. Validity and effectiveness of notice and default in procedure by the lessor can be a source of lengthy and multifarious court processes. While general notice in mass media may be effective, it’s advisable for notice for forfeiture to be served individually and the facts therein be accurate and unambiguous to the lessee.
Remedy for breach of lease conditions
Remedy for breach of terms and conditions of lease by the lessee may be categorized into two main types: breach capable of remedy and breach incapable of remedy. Forfeiture is directed only at braches that are not capable of any remedy. According to Tenga and Mramba (2008), breaches that are incapable of remedy may include incidents where the breach is so serious and with far reaching consequences, for instance the breach may be such that it is actually impracticable the owner to remedy within reasonable time and cost, or remedy may also be incapable where the owner is unwilling to remedy the breach; or where the lessee has abandoned the land and rent and rates have remained unpaid for a long period of time.
Leased public land provided for in section 12 of the Land Act tend to hinge sustainability of ownership interests on development. The implication one gets from reading this section is that public land is allocated to individuals on leasehold terms only for the purpose of development. Thus, ownership interests of such land can only be sustained by development of the specified structure within specified period of time provided for in the lease agreement. Section 12(8) disallows any dealings ‘unless the land is developed for the purpose for which it was allocated’. Section 12(9) states failure to develop public land allocated under section 12 within terms and conditions of the lease leads to automatic reversion to government. What does this imply legally? While opinions may differ, it’s clear from the foregoing that development is central to ownership of leased public land. That is to say, unlike freehold land which may be allocated on principles of equity, or right to land by citizens, public land is only allocated for development. Subsequently, non-development of such land after registration of ownership is not open to any remedy.
Claim to Rights and pleadings against forfeiture
People who have previously been affected by forfeiture of leased public land have made different pleadings and claims to certain rights. In this section we revisit some of these reasons cited in defence of leasehold interests by defaulting lessees. This information is derived from experiences from the ongoing repossession process in Kakamega County. Some issues brought out by the affected lessees include their right to fair hearing, indefeasibility of title, protection of private property by the constitution, succession, ignorance about terms and conditions, and issue of third party interests. Let’s look at each of these excuses in details.
Fair Administrative Action
Previously, local Government authorities used to publish undeveloped plots in mass media and undertake repossession without giving the lessees any hearing. Affected individuals complained of ambush, ill-intention, intimidation and bad faith. Some indicted the authority of indolence, which is failure to remind or give them a reminder to fulfill their obligations. From this, it’s clear that there is need for the lessor to establish a mechanism to grant fair administrative action to lessees who have breached terms and conditions of the lease before commencing forfeiture through the court process. This has been affirmed by the ruling in a case ELC petition No.8 of 2018 between Antony Milimu Lubulellah and the County Government of Kakamega. This means that besides the notification, lessee is entitled to hearing under a fair administrative action.
Indefeasibility of title
Some leaseholders have pleaded that a title can never be defeated unless on grounds of fraud or forgery. They cite section 26 of the Land Registration Act No 3 of 2012 which states that:
‘….. Certificate of title issued by registrar ….shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner …’
People who cite this clause actually fail to understand the comprehensive meaning of the concept of indefeasibility. According to Matende-Omwoma (2021) any certificate of title may be defeated by other interests in that title. Even the above citation subject prima facie evidence of ownership to encumbrance, easements, restrictions and conditions contained or endorsed in the certificate. Section 28 of the LRA subjects all registered land to overriding interests and this includes defeat through ‘compulsory acquisition, resumption, entry’. Repossession through forfeiture is a form of re-entry and resumption of rights by the lessor. So there are many other legal grounds beyond fraud and forgery, upon which a registered title may be defeated
Constitutional protection of rights to property
Some people have observed that repossession of registered leasehold land goes against the constitutional protection of right to property. Right to property is among the general rights provided for by the bill of rights in chapter four of the constitution of Kenya. Article 40 of the constitution provides for the protection of rights to property and states that ‘every person has the right, either individually or in association with others, to acquire and own property of any description; and in any part of Kenya’; it further caution that ‘Parliament shall not enact a law that permits the State or any person—to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description’. Does forfeiture law arbitrarily deprive a person of property? The word arbitrary means ‘illogical’ or ‘without reason’. Arbitrary action is random, and based on whim rather than legitimate logical process. Forfeiture is based on principles that are provided in the law and follows a legally prescribed process that is not only open but systematic. Thus forfeiture is not equivalent to arbitrary deprivation of property by the state.
Article 40(3) states that ‘the State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, As you can see these individual interests in property are limited to interests of other parties intrinsic in the same property. Property rights are limited by law and are not absolute or fundamental rights (Matende-Omwoma, 2021). Leasehold interest for instance is limited to ownership and use for a definite period time, subject to Lessor’s term and condition and is just a portion of the larger perpetual ownership interest of the lessor. This means that the Lessor’s interests are primary, superior and of priority compared to the lessee’s.
Misinterpretation and Ignorance of terms and conditions
Some land owners who found themselves victims of forfeiture have pleaded ignorance of the terms and conditions contained in the lease. Some actually confessed that people who sold them land gave them only certificates of lease and not lease documents containing the conditions. Whether ignorance shall be accepted as defence in courts of laws is a matter that is awaited with curiosity. In the spirit of the law, ignorantia juris non excusat, which means ‘ignorance of the law is no excuse’ in law. In fact some leaseholders have been heard to say that they though leasehold title was as free as freehold title.
Kariuki (1990) affirms that the interpretation of leases lies at the heart of property management. Studies have indicated that in some instances tenants or lessor are not familiar with the document and are not aware of its importance (Chomba, 1992; Mutua, 1987).
The way land owners perceive their relationship with the land in terms of development has attracted a few studies. According to Doebele, (1983) tenure as a legal concept involves the occupant’s perception of his interest in terms of development. In a leasehold tenure, the lease greatly affects the activities that the leaseholder can engage in and directs his occupation (Siganga, 1997). Leasehold title may therefore be viewed as a secondary title whose holder enjoys ownership and user rights subject to strict adherence to the terms and conditions contained in the lease agreement.
Case of death- Succession proceedings
Dead people tell no tells. In some cases it may be found that the lessee is deceased and succession process has not been concluded. In such case where who should be the consumer of the forfeiture notice, and who should be blamed for non-development? These are some of the aspects the court needs to look into on the scales of equity in order to dispense justice to both parties. The succession Act Cap 160 of the Laws of Kenya provides that ‘Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person’. It’s clear from this reading that attempting to develop a plot on behalf of a deceased person without a grant of representation or any other lawful authority may amount to meddling in the property of the deceased. However, it remains for the courts to tell us, whether its legally possible or proper, to ask dead people to forfeit their rights in a property!
Other interests in the lease (mortgage, charge, sublease,)
Terms and conditions of the lease disallows the lessee to sell, transfer, sublet, charge or dispose of the land in any other manner except with prior consent of the government. It further states that ‘no application for consent (except in respect of a loan required for building purposes) will be considered until development of the land in accordance with approved plans and specifications has been completed. Now, what happens in cases where the government has given consent to transfer, charge or disposes in violation of development conditions? Does this amount to waiver of forfeiture rights by the Government?
Section 54 of the Land Registration Act states that:
‘Upon the registration of a lease containing an agreement, express or implied, by the lessee that the lessee shall not transfer, sub-let, charge or part with possession of any of the leased land without the written consent of the lessor, the agreement shall be noted in the register of the lease, and no dealing with the lease shall be registered until the consent of the lessor, verified in accordance with this Act has been produced to the Registrar’.
In Kenya, Section 12(8) of the Land Act disallows dealings with registered leasehold land unless such land is fully developed in accordance with terms and conditions of the lease. However, during the regime of Daniel Arap Moi, this rule was flouted with informal transfers being allowed. Informal transfers included transfer of leasehold land even before survey and registration of lease agreement. Well-connected people enjoying the power of the day were in hurry to make cash out of public land. Even public utility land planned for schools, hospital, prison and stadiums were not spared from this land grabbing spree. The National Land Commission has found it difficult to revoke these allocations as the land is presently occupied by innocent purchasers.
Waiver of Forfeiture Rights
In spite of the immense power held by the lessor in the leasehold title, some acts or incidents may make the lessor loose his rights for forfeiture either for a short time or the entire duration of the lease. Oxford Dictionary of Law observes that ‘A landlord loses his right of forfeiture if he treats the lease as continuing when he is entitled to forfeit it’. Does this mean that a lessor or landlord has a time limit within which to claim his forfeiture rights? What happens if a lessor failed to claim his forfeiture rights after it has ripened? Section 12 (9) provides glue to answering this question, it states:
‘Where the land allocated (from public land).. 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’
The connotations of the word ‘automatic reversion’ is that the land will go back to the government on prove of facts of non-development within the prescribed period. This also means that, the forfeiture process is just a formalization of an act that has already happened and it’s aimed more at extinguishing the lessee’s interest in the title that has already lapsed. This means that at the lapse of the prescribed development period, the land reverts back to the lessor without the need for surrender or formal recovery by the government. This is more like the case of adverse possession where the dispossession of the registered owner ripens into ownership in fevour of the adverse occupier regardless of the inaction of the occupier. Evicting an adverse occupier after ripening of the prescribed period does not affect his entitlement on the land. In parallel to this, it may also be said for forfeiture that repossession ripens on leased public land, whether the lessee develops it later or not. Does indolence on the site of the Government not to claim its forfeiture rights when it ripens equivalent to waiver of such rights? Does consent by the government to Transfer the lease, charge the plot or sublease amount to waiver of rights to forfeiture?
Some court proceedings have taught us one or two lessons about forfeiture. In a High court Case no 28 of 2017 concerning repossession of a plot in Ukwala town, the lessor was defeated because the lessor went on to approve building plans on the plot after it had issued a notice for repossession. High court case number 74 of 2008 indicated that forfeiture need proper and sufficient notice and can only be undertaken through the court as opposed to direct re-entry. Repossession should follow the right procedure and re-allocation of the plots should also be legally procedural. High court case No. 8 of 2018 seemed to imply that the end or lapse development period does not imply automatic cessation of lease agreement. To extinguish the agreement a court process is necessary.
Determination of Court to be based on proof of facts
Forfeiture of leasehold land should happen through a court process and the courts should make rulings based on the principle of the doctrine of equity and on prove of facts. Section 31(2) states that upon proof of the facts alleged in a notice served under subsection (1) of this section, the Court shall, subject to any relief which it may consider to grant, declare the lease forfeited (if it is still subsisting), and make an order for the payment of the arrears of rent and the costs of the proceedings and for the delivery of possession of the land to the government either forthwith or on a specified date’.
Section 12 (8) and (9) provide for the principle of ‘non-disposal before development’ and ‘automatic reversion of all interest to the government in case of non-development in accordance with terms and condition of the lease and within the stipulated period time’. This mean the reversion of interests to the lessor should be undisputable if non-development in accordance to stipulated conditions is proved by the court. Prove of non-development is necessary and sufficient evidence for repossession under section 12 (9) and non development is sufficient evidence for denial of rights to dispose (section 12 (8)). In some jurisdictions the lease title is extinguished by approval of revocation by the president and gazettement of such revocation by the government. This is followed by cancellation of the titles by the registry through an entry of revocation (Tenga and Mramba, 2008).
Section 31 (4) of the Land Act directs the court to apply the principle of the doctrine of equity in determining relief against forfeiture. What this means is that facts about each case should be weighted on the scales of fairness. The courts should therefore consider various aspects, incidents and social circumstances relating to the plot and the lessee before determining forfeiture; these may include the amount of investment made by the lessee on the plot; the sensitivity of activities going on the plot in terms of local employment, livelihoods and income; costs and benefits on either side in case of forfeiture; and events and incidents which may have interfered with performance of terms and conditions of the lease, for instance, illness , death or imprisonment of the proprietor .
Conclusion
Many attempts by the government to reposes leasehold land for breach of terms and conditions have been unsuccessful because of failure to follow the legal procedure provided for in the Law. Many local authorities misunderstood the concept of ‘automatic reversion’ to mean automatic take over or direct re-entry by the government. As indicated above, repossession of leasehold land in breach of agreement is a legal process that takes place through forfeiture procedure and a court declaration. Forfeiture declaration by the court should be based on prove of facts and should respect the principle of equity. Leasehold title extinguishes automatically once the land registrar makes entry of forfeiture declaration from the court in the register. At this point the land reverts back to the government and becomes available for re-allocation or any other commitment.
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References
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Christensen S. and Duncan, B. (2006): Breaches of lease ‘capable of remedy’: A technical or practical approach? Australian Property Law Journal 13(2):204.
ELC petition No.8 of 2018 between Antony Milimu Lubulellah and the County Government of Kakamega.
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GOK (2019): Law of succession Cap 160. Government printers, Nairobi
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Institution of surveyors of Kenya (2018): Handbook of Land Laws, Publication of ISK
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Kariuki, C.W. (1990): “The Landlord and Tenant : A Relationship”. Unpublished Project Paper presented for the Institution of Surveyors of Kenya Diploma Examinations, Department of Land Development, University of Nairobi, Nairobi.
Mutiso, F. (1989): “The Lease and the Licence: A Critique of the effects of the two institutions on the socio-economic life of the tenant and licencee“. Unpublished Third Year Thesis, Faculty of Law, University of Nairobi.
Mutua, J. (1987): “Estate Management in Commercial – cum Residential Properties in Nairobi”, Unpublished Third Year Project, Department of Land Development, University of Nairobi.
Oxford Dictionary of Law, 5th Edition Oxford University Press
Pawlowski, M. (1999): The Forfeiture of Possessory Rights in Land and Chattels. Liverpool Law Review 21, 77–96 (1999). https://doi.org/10.1023/A:1005435525808
Siganga, Edith (1997): Lease and licence administration by a public corporation in kenya: The case of Kenya Railways Corporation. MA Thesis, University of Nairobi
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TUMAINI UNIVERSITY, GOVERNANCE NOTICE NO 86
Wheeler. P. (1987), “Lease Administration and the Property Manager”, in The Valuer, October 1987, p 598-601.
Ronald Matende Omwoma is a Land Administration Expert and a Practicing Physical Planner in Kenya and Uganda
Tel: 0723426114/0701204203