Failure to enforce eviction orders cost State Sh30 million

A court in Voi has awarded former Taveta MP Basil Criticos Sh30 million after finding that the government’s failure to enforce eviction orders on his sisal estates violated his constitutional right to property.

In a judgment delivered on February 26, 2026, Justice Edward Wabwoto ruled that prolonged inaction by State agencies in removing alleged invaders from Criticos’ land amounted to a breach of Article 40 of the Constitution.

The dispute traces back more than two decades. 

The petition was first filed in the High Court in Nairobi in April 2004 and subsequently transferred to the Environment and Land Court in Nairobi in July 2025 before being moved to Voi in September 2025 for determination.

Criticos sued the Attorney General, the then Commissioner of Police and the Minister of State in the Office of the President.

He accused the State of failing to protect his properties — Jipe Sisal Estate and Taveta Sisal Estate — from invasion between 1998 and 2000.

He told the court that thousands of people invaded the land, destroyed property including a sisal factory and crops, and that despite repeated complaints and court orders, the police failed to evict them. 

He relied in part on orders issued on September 13, 2005 by Justice Mohamed Ibrahim (as he then was), and later orders issued on March 11, 2016 directing the Officer Commanding Police Division in Taveta to eject trespassers after being supplied with a list of invaders.

Criticos argued that the continued occupation, coupled with what he described as State facilitation amounted to unconstitutional deprivation of property. 

"Various state players and other parties have interfered with his land charged to AFC. This has facilitated easyaccess for invasion of the said land, the government rehabilitated the canals running through the AFC land without his consent and thus encouraging invasion of his land," court documents state 

He sought declarations that his rights under the repealed Constitution and Article 40 of the 2010 Constitution had been violated, and asked for compensation, including general, special and exemplary damages.

The State opposed the petition through grounds of opposition and written submissions dated February 2, 2026.

 It argued that the court lacked jurisdiction because the matter was sub judice (under judicial consideration), citing another case in Mombasa ELC No. 113 of 2015. 

It further contended that the petition was effectively a contempt proceeding disguised as a constitutional case, since the reliefs sought were aimed at enforcing earlier court orders.

"That there has been no exhaustion of the available remedies available in law and further that the same does not disclose any genuine constitutional grievance and or course of action against the Respondents," State argued.

They cited the failure to exhaust alternative remedies available under the law, including procedures under Sections 152B and 152E of the Land Act governing eviction from private land. 

They urged the court to dismiss the matter with costs.

In rebuttal, Criticos maintained that the cited Mombasa case involved different parties and issues, and that no pleadings had been presented to demonstrate any nexus. 

He argued that the petition was properly before the court as a constitutional claim for violation of property rights and that the State had not filed any evidence to show compliance with the eviction orders.

Justice Wabwoto rejected the State’s preliminary objections. 

He held that the State had failed to demonstrate that the matter was sub judice, noting that no material had been placed before the court to establish similarity of issues or parties.

On exhaustion, the judge observed that the petition was filed in 2004 and that the objection had only been raised in 2026, terming it an afterthought. 

The court also found the State had also failed to identify specific alternative remedies that were available at the time the suit was filed.

On the merits, the court found that the Respondents had not rebutted the detailed evidence presented by Criticos. 

The judge held that failure to file an affidavit to challenge serious allegations of breach of fundamental rights could be deemed an admission.

The court concluded that the State’s failure to enforce its own eviction orders and protect the petitioner’s land amounted to a violation of Article 40. 

"A declaration is hereby issued that the Petitioner has been deprived of his constitutional rights contrary to the provisions of Article 40 of the Constitution of Kenya, 2010," the court ruled.

It awarded Sh20 million in general damages and Sh10 million in exemplary damages, citing guidance from the Court of Appeal and the Supreme Court on constitutional compensation.

However, the judge declined to order a government valuation or award special damages, holding that such claims must be specifically pleaded and strictly proved.

In the end, the court declared that the ex-MP’s property rights had been violated and ordered the State to pay him Sh30 million plus costs, bringing to a close a 22-year legal battle over the Taveta sisal estates.