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ELCPartially AllowedVOI ELCLC No. 3 of 2024 (formerly Mombasa ELC Suit No. 125 of 2018)

Criticos & another v AIC Makutano & 67 others (Land Case 3 of 2024) (Environment and Land) [2026] KEELC 3529 (KLR)

Environment and Land Court of Kenya
11 June 2026
11,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court voided 67 parties' titles to Criticos' Taita Taveta land but ordered the Government to pay Kshs. 320 million instead of evicting occupants.

What this practically means

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Executive summary

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The Plaintiffs, Basil Criticos and Kenya Trade & Development Company Limited, sued 67 Defendants, including a church, a school, individual and corporate allottees, the Attorney General, the Land Settlement Fund Board of Trustees and the land registrars, seeking cancellation of titles carved out of L.R. No. 10287/4, declarations of ownership and trespass, injunctions, eviction, damages and, alternatively, indemnity of Kshs. 320,000,000 from the Government. The suit was transferred from Mombasa to Voi. The Plaintiffs asserted an unbroken chain of title from Grant No. I.R. 17933 and contended that they never sold, surrendered or exchanged the suit property, the Government having unlawfully consolidated it with L.R. No. 10287/1 (which alone had been sold to the SFT) and allotted subdivisions through a parallel registry process. The Government contended that a binding exchange for the wildlife corridor L.R. No. 24890 existed, invoking constructive trust, proprietary estoppel and unjust enrichment; the private Defendants alleged a 1990 sale to the SFT. The court found the Plaintiffs to be the registered owners who never parted with the land: no sale, transfer or surrender instrument was produced, the Government's own Internal Memo of 9th August 2014 recorded that the rest of the land remained with Basil Criticos, and the alleged exchange never crystallised. The Defendants' titles were declared illegal, null and void under section 80 of the Land Registration Act, the bona fide purchaser doctrine not availing where the root of title is void. However, exercising the discretionary remedial power, the court made indemnity at full market value (Kshs. 320,000,000, payable jointly and severally by the State Defendants within 365 days) the primary relief, with cancellation and rectification of the register operating only in default, holding the Plaintiffs to their own alternative election and citing proportionality and the position of innocent occupants. General damages for trespass of Kshs. 10,000,000 were awarded against identified trespasser Defendants; injunction and eviction were declined; the claim against the 13th Defendant was dismissed with costs; costs otherwise to the Plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs are the owners of, or sold, the suit property
  2. 2.Whether the Plaintiffs exchanged the suit property for the wildlife corridor (L.R. No. 24890), and whether the Defendants' titles are illegal, null and void
  3. 3.Whether the Plaintiffs are entitled to the reliefs sought

Key legal issues

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01

Whether the Plaintiffs own the suit property and whether they sold it

Holding

The Plaintiffs are the registered proprietors and did not sell the suit property; no sale, surrender or exchange instrument touching L.R. No. 10287/4 was ever produced

Reasoning

The Plaintiffs produced the certificate of title and traced an unbroken chain from Grant No. I.R. 17933 to the 2nd Plaintiff. The Government's own Internal Memo of 9th August 2014 recorded that only L.R. No. 10287/1 was purchased by the SFT and that 'the rest of the land remained with Basil Criticos'. No Defendant produced any sale, transfer or surrender instrument; the Government witness conceded only a proposal existed. The forgery allegation based on a date discrepancy was not specifically pleaded or strictly proved.

p. 12
02

Whether there was a completed exchange of the suit property for the wildlife corridor and whether the Defendants' titles are null and void

Holding

No completed exchange occurred; the Defendants' titles created through parallel proceedings at the District Lands Registry are illegal, null and void under section 80 of the Land Registration Act

Reasoning

The Safari Report recorded objections; KWS confirmed no title for the corridor was received; the 2014 Internal Memo made no mention of any exchange; and no signed instrument was produced. No Land Control Board consent was obtained under section 8 of the Land Control Act. Constructive trust and proprietary estoppel were not pleaded and fail on the merits; unjust enrichment fails because the corridor was created from land already sold. The SFT having no title, derivative titles were void (nemo dat quod non habet).

p. 15
03

Whether the 55th Defendant is protected as a bona fide purchaser for value

Holding

The bona fide purchaser protection does not avail the 55th Defendant because the root of its title (the SFT allocation) was itself unlawful

Reasoning

Section 26(1)(b) permits impeachment where title was acquired illegally, unprocedurally or through a corrupt scheme. Interrogation of root title is necessary; here the rot originated at the first link, the SFT's allocation of a parcel it did not own. The 55th Defendant's remedy lies against the Government entities that caused the defective title, not against the true owner.

p. 14
04

What is the appropriate remedy: cancellation of titles or compensation

Holding

Indemnity at full market value (Kshs. 320,000,000) is the primary relief, with cancellation of titles and rectification of the register operating in default of payment within 365 days

Reasoning

Section 80 confers a discretionary power to rectify, paired with the statutory indemnity in sections 81 and 82. Equitable relief yields where damages are adequate; the Plaintiffs themselves elected compensation in the alternative pegged to their own unchallenged valuation. Proportionality, the position of innocent occupants (a church, a school, settlers, a purchaser for value), and the need to cast the burden on the State organs that authored the wrong all support a measured remedy preserved by a default mechanism.

p. 19

Legal principles established

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  • A disposition of land must be effected by a written, signed and attested instrument under section 3(3) of the Law of Contract Act; an intention to exchange that never crystallised into a completed transaction confers no enforceable rights
  • Where the root of title is void because the allotting authority had no title to allot, a subsequent bona fide purchaser's good faith and due diligence cannot defeat the true owner's subsisting title
  • Equitable relief (injunction, eviction) will be withheld where an adequate monetary remedy exists, and courts must fashion proportionate remedies with regard to innocent third parties and the public interest
  • Rectification under section 80 of the Land Registration Act is discretionary and may be paired with a statutory indemnity under sections 81 and 82, with cancellation operating in default of payment

Court orders

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  1. 1.Declaration that the 2nd Plaintiff, Kenya Trade & Development Company Limited, is the rightful, lawful and current registered proprietor of L.R. No. 10287/4, and that the Plaintiffs neither sold, surrendered, nor exchanged the suit property
  2. 2.Declaration that the entry upon and occupation of the suit property by the Defendants identified as trespassers constitutes unlawful trespass and infringement of the Plaintiffs' right to property under Article 40
  3. 3.Declaration that the titles created out of the suit property (L.R. Nos. Taita Taveta/Lake Jipe Settlement Scheme/397 through 1494, as listed) are illegal, null, void and incapable of vesting any title
  4. 4.Order that the 11th, 65th, 66th and 67th Defendants jointly and severally pay the 2nd Plaintiff Kshs. 320,000,000, being the market value of the suit property, within 365 days, in full and final satisfaction of the Plaintiffs' proprietary claim
  5. 5.Prayer for a permanent injunction declined
  6. 6.Prayer for eviction declined; parties at liberty to apply for consequential orders once the indemnity is satisfied or the register rectified
  7. 7.General damages for trespass of Kshs. 10,000,000 payable jointly and severally by the Defendants found liable in trespass (the 4th, 5th, 6th, 7th, 9th, 10th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 22nd, 23rd, 25th, 26th, 27th, 30th, 33rd, 34th, 35th, 43rd, 44th, 45th, 46th, 47th, 49th, 50th, 55th, 56th, 57th, 59th, 60th, 61st, 62nd and 64th Defendants)
  8. 8.In default of payment of Kshs. 320,000,000 within 365 days, the Chief Land Registrar and the Taita Taveta Land Registrar shall, within 90 days of expiry, rectify the register by cancelling all the titles listed, whereupon the suit property shall revert to and be registered in the name of the 2nd Plaintiff
  9. 9.Costs of the suit awarded to the Plaintiffs against the Defendants save for the 13th Defendant
  10. 10.Suit against the 13th Defendant dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land registered under the Land Registration Act (Cap. 300); reliefs sought under section 80 of that Act and Article 40 of the Constitution

Relief refused

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Permanent injunction restraining the Defendants from dealing with the suit property

Discretionary equitable relief withheld where damages and the primary indemnity order adequately protect the Plaintiffs; immediate injunction would be drastic and disproportionate to innocent occupants

p. 20

Eviction order

Would evict a church, a school and settlers despite a complete monetary remedy against the State wrongdoers; disproportionate

p. 20

Claim against the 13th Defendant, Marion Atieno Moon

No act, omission, occupation or dealing pleaded or proved against her personally; separate corporate personality of the 55th Defendant not pierced

p. 16

Costs

Costs of the suit awarded to the Plaintiffs against the Defendants save for the 13th Defendant; the suit against the 13th Defendant dismissed with costs to her.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Issue (ii) is answered in favour of the Plaintifis: there was no completed exchange, and the Defendants' titles are illegal, null and void.
p. 15invalidity of defendants' titles
A party cannot simultaneously assert that the same parcel was sold and exchanged; the inconsistency itself weakens the credibility of both contentions.
p. 11inconsistent defences
That fundamental defect cannot be cured by a subsequent purchaser's good faith, however impeccable the due diligence at the transaction level may have been.
p. 15limits of bona fide purchaser protection
To cancel some sixty titles at a single stroke and to evict a church, a school and a group of settlers, where a complete monetary remedy is available against the wrongdoers, would be to infiict upon the innocent the consequences of a wrong they did not commit. Proportionality forbids it.
p. 18proportionality in remedies
(iv) An order that the 11th, 65th, 66th and 67th Defendants do jointly and severally pay to the 2nd Plaintifi the sum of Kshs. 320,000,000, being the prevailing market value of the suit property within three hundred and sixty-five (365) days of the date of this judgment, in full and final satisfaction of the Plaintifis' proprietary claim to the suit property.
p. 20final orders - indemnity
(viii) In default of payment of the sum of Kshs. 320,000,000 under Order (iv) above within the prescribed period of 365 days, the Chief Land Registrar the 66th Defendant and the Taita Taveta Land Registrar the 67th Defendant shall, within ninety (90) days of the expiry of that period, rectify the register by cancelling all the titles listed in Order (iii) above, whereupon the suit property shall revert to and be registered in the name of the 2nd Plaintifi.
p. 20final orders - default cancellation and rectification
(ix) Costs of the suit are awarded to the Plaintifis against the Defendants save for the 13th Defendant.
p. 21final orders - costs

Issues in the judgment

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minor

The Attorney General's written submissions are said to be filed for the 11th, 64th, 65th, 66th and 67th Defendants, whereas elsewhere the 11th, 65th, 66th and 67th Defendants are identified as the Government Defendants, without explaining the reference to the 64th Defendant

minor

The opening paragraph describes the pleading as a Further Further Amended Plaint dated 29th August 2025, but the submissions reference a Further Amended Plaint dated 7th February 2023

minor

Order (ii) refers to trespassers identified at paragraph 61, while the list of trespassers appears at paragraph 59

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Criticos & another v AIC Makutano & 67 others (Land Case 3 of 2024)  (Environment and Land) [2026] KEELC 3529 (KLR)", Case Analysis (2026). VOI ELCLC No. 3 of 2024 (formerly Mombasa ELC Suit No. 125 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.