Criticos v Attorney General & 2 others (Environment and Land Petition E010 of 2025) (Environment and Land) [2026] KEELC 1155 (KLR)
The bottom line
#Kenya's government was ordered to pay Kshs. 30 million for failing to protect a private landowner's property from invasions it helped enable.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is barred by sub judice (Emfil Ltd v AG, Mombasa ELC 113 of 2015)
The objection failed; the Respondents did not furnish pleadings demonstrating the nexus between the Emfil matter and this Petition.
The court restated section 6 of the Civil Procedure Act and the elements of sub judice, including pendency of a previously instituted suit between the same parties over the same issues. The Respondents merely mentioned the Emfil case in submissions without furnishing any pleadings to show the nexus. The court was therefore unable to find that the instant Petition was sub judice.
Whether the Petition is barred by failure to exhaust alternative remedies
The objection was declined as an afterthought; the Respondents failed to identify the alternative remedies available in 2004 when the Petition was filed.
The Petition was commenced in 2004 and the Respondents have been parties throughout over 20 years of litigation without raising the objection until their grounds of opposition dated 2nd February 2026. The Respondents also failed to demonstrate which alternative legal remedies and specific provisions of law were available to the Petitioner when the suit was commenced.
Whether the Petition is merited - violation of the right to property under Article 40
The Petition was merited; the State's inaction and facilitation of invasions of the Petitioner's sisal estates amounted to a violation of Article 40.
Between 1998 and 2000 thousands of persons invaded the Petitioner's estates and State officials took no steps to remove them despite court orders. The Respondents filed no affidavit evidence to rebut the Petitioner's allegations, which the court treated as an admission of the facts. Following Arnacherry, the State's conduct amounted to constructive compulsory acquisition of land without compensation, violating Article 40.
Whether the Petitioner is entitled to exemplary, aggravated and general damages and a compulsory valuation
General damages of Kshs. 20,000,000/= and exemplary/aggravated damages of Kshs. 10,000,000/= awarded; the valuation request refused.
Constitutional remedies are vindicatory; awards are discretionary and guided by Ramanoop and Kiai. Exemplary damages may be awarded for oppressive, arbitrary or unconstitutional action by government servants (Rookes v Barnard via Mbogori). Guided by Kental Enterprises, Ringera and Zinj, the court awarded Kshs. 20 million general and Kshs. 10 million exemplary damages. The valuation order was refused because special damages must be specifically pleaded and proved.
Legal principles established
#- Jurisdiction flows from the Constitution or legislation and a court without jurisdiction must down its tools
- For sub judice to apply, the invoking party must demonstrate that the matter in issue in the subsequent suit is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title
- Failure to file an affidavit to rebut evidence of breach of fundamental rights amounts to admission of the facts alleged
- The main objective of a constitutional remedy is vindicatory, not punitive
Court orders
#- 1.A Declaration that the Petitioner has been deprived of his constitutional rights contrary to Article 40 of the Constitution of Kenya, 2010
- 2.An award of general damages of Kshs. 20,000,000/= against the Respondents for violation of the Petitioner's constitutional rights
- 3.An award of exemplary and aggravated damages of Kshs. 10,000,000/= to the Petitioner
- 4.The Petitioner to have costs payable by the Respondents
- 5.Any other reliefs not expressly granted are denied
- Jurisdiction invoked
- Articles 22, 23 and 40 of the Constitution of Kenya, 2010 and Sections 70, 75, 76 and 82 of the repealed Constitution (petition commenced 2004 under the former Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Criticos v Attorney General & 2 others (Environment and Land Petition E010 of 2025) (Environment and Land) [2026] KEELC 1155 (KLR)", Case Analysis (2026). Originating Summons dated 30th April 2004 (Amended 16th September 2016) (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1155/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.