Criticos & another v AIC Makutano & 67 others (Land Case 3 of 2024) (Environment and Land) [2026] KEELC 3529 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiffs own the suit property and whether they sold it
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
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.
Whether there was a completed exchange of the suit property for the wildlife corridor and whether the Defendants' titles are null and void
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
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).
Whether the 55th Defendant is protected as a bona fide purchaser for value
The bona fide purchaser protection does not avail the 55th Defendant because the root of its title (the SFT allocation) was itself unlawful
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.
What is the appropriate remedy: cancellation of titles or compensation
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
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.
Legal principles established
#- 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
#- 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.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.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.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.Prayer for a permanent injunction declined
- 6.Prayer for eviction declined; parties at liberty to apply for consequential orders once the indemnity is satisfied or the register rectified
- 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.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.Costs of the suit awarded to the Plaintiffs against the Defendants save for the 13th Defendant
- 10.Suit against the 13th Defendant dismissed with costs
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kibukwoi v Mugo (Environment and Land Case 298 of 2017) [2026] KEELC 4087 (KLR)[2026] KEELC 4087 (KLR)3 Jul 2026applied
Cite this brief
#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.