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ELCDismissed· [2026] KEELC 1120 (KLR)

Criticos & another v Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third party) (Environment and Land Case 8 of 2024) (Environment and Land) [2026] KEELC 1120 (KLR)

Environment and Land Court
26 February 2026
5,750 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a Kshs 19 million trespass claim because the landowners could not prove the land they sued over still existed.

What this practically means

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Executive summary

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The Plaintiffs, Basil Criticos as former registered owner and a company to which L.R No. 10287/4 was allegedly transferred on 13th October 2020, sued the Defendant (a road contractor) for trespass, alleging that from April 2014 the Defendant occupied a portion of the suit property in Taita Taveta County and excavated some 24,000 tonnes of ballast/murram valued at Kshs. 19,320,000, and sought permanent injunctions, a declaration of trespass, vacant possession, general damages, special damages, interest and costs. The Third Party, Andrew Jumamosi Masomo, claimed the parcel ceased to exist in 1990 when it was sold to the Settlement Fund Trustee and amalgamated into the Lake Jipe Settlement Scheme, and that he was issued Title Taveta/Lake Jipe/780, which he leased to the Defendant. The Defendant denied trespass, relying on due diligence, leases and a Certificate of Finality under the Land Adjudication Act. The court framed three issues: ownership, trespass and entitlement to relief. Relying on the Evidence Act and the balance-of-probabilities standard, and on the testimony of DW3, the Assistant Director of Land Adjudication and Settlement, that L.R No. 10287/4 does not exist in the records, the court held the Plaintiffs failed to prove ownership. It followed that the trespass claim could not be sustained, as the Defendant's operations were on land leased from the Third Party and DW2. The Plaintiffs' pending suit, Voi ELCLC No. 3 of 2024, seeking cancellation of titles emanating from the parcel, was noted. The suit was dismissed with costs to the Defendant, the Plaintiffs bearing their own costs of the suit.

Key legal issues

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01

Whether the Plaintiffs proved ownership of L.R No. 10287/4

Holding

Not proved; the evidence, including that of the Assistant Director of Land Adjudication and Settlement, was that the parcel ceased to exist after its 1990 sale to the Settlement Fund Trustee and subsequent adjudication

Reasoning

The Plaintiffs produced a certificate of title, but the Defendant and Third Party challenged it. DW3, the Assistant Director Land Adjudication and Settlement, testified the parcel does not exist in the records and confirmed letters showing the parcel ceased to exist as at 1990. The Plaintiffs also acknowledged in Voi ELCLC No. 3 of 2024 the issuance of titles to third parties from the same parcel. Ownership was therefore not proved to the required standard.

p. 10
02

Whether the Defendant trespassed on the suit property

Holding

Trespass not proved; the Defendant's activities were on leased land belonging to the Third Party and another lawful owner

Reasoning

Trespass requires immediate exclusive possession. Having found ownership unproved, the court held the trespass claim could not be sustained. The evidence showed the Defendant operated on Taveta/Lake Jipe/780 leased from the Third Party and on land leased from DW2, not on L.R No. 10287/4.

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Whether the Plaintiffs are entitled to the reliefs sought

Holding

No; the suit was dismissed with costs

Reasoning

Both trespass and ownership having failed, the injunctions, declaration, vacant possession, general and special damages could not issue. Costs follow the event.

Legal principles established

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  • A claim in trespass requires proof of possession or proprietary rights over the land; where a certificate of title is challenged, the burden lies on its owner to prove ownership
  • The standard of proof in civil claims is the balance of probabilities

Court orders

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  1. 1.Suit dismissed with costs
  2. 2.Plaintiffs to bear costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107(1)(2)
  • Evidence ActSection 109
  • Evidence ActSection 112
  • Trespass ActSection 3(3)
  • Land Adjudication ActSection 5
  • Land Adjudication ActSection 26(A)
  • Land Adjudication ActSection 28

Cases cited (10)

  • David Kimuyun Koskei v Benjamin Tuwei & Another
    (2019) eKLR
  • Rhoda S. Kiilu v Jiayi Water and Hudropower Construction Kenya Limited
    (2019) eKLR
  • Mwangi v Njaria
    (Civil Suit E015 of 2021 (2022) KEELC 13567 (KLR) (19th October 2022)
  • Frank Logistics Limited v Golden Lion Real Estate Company & 6 Others
    (Civil Appeal E303 of 2024) (2025) KECA 1471 (KLR) (12 September 2025)
  • Mumbi M'Nabea v David M. Wachira
    [2016] eKLR
  • Maria Ciabaitaru M'mairanyi & Others v Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280
  • Palace Investments Limited v Geoffrey Kariuki Mwenda & another
    [2015] eKLR
  • Miller v Minister of Pensions
    [1947] 2 All ER 372
  • M'ikiara M'rinkanya & another v Gilbert Kabere M'mbijiwe & another
    [2014] eKLR
  • Basil Criticos v AIC Makutano & 66 Others
    Voi ELCLC No. 3 of 2024
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning land in Taita Taveta County; specific provision not stated in the judgment

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, "Criticos & another v Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third party) (Environment and Land Case 8 of 2024)  (Environment and Land) [2026] KEELC 1120 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1120/eng@2026-02-26

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