High Court orders government to pay former MP Basil Criticos Ksh.30M for violation of property rights

In its judgment, the court declared that Criticos had been deprived of his constitutional rights contrary to Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property.

The court awarded him Ksh.20 million in general damages for the constitutional violation and an additional Ksh.10 million as exemplary and aggravated damages against the respondents.

Criticos had told the court that between 1998 and 2000, thousands of people invaded his sisal estates and that state officials failed to remove them despite repeated requests. 

He further alleged that following his protests over the invasions, he was dismissed from his position as Assistant Minister for Roads and Public Works.

According to the petition, his sisal factory and 4,400 acres of sisal were burnt between 1998 and 1999, resulting in massive losses. About 1,600 employees reportedly lost their jobs, while thousands of casual workers were rendered destitute. He also claimed he was forced to flee the county.

Criticos argued that despite having sold 23,400 acres to the Settlement Fund Trustees in 1991 for the resettlement of squatters, the State failed to relocate the squatters to that land. 

Instead, various state agencies allegedly facilitated occupation of his charged land by connecting electricity, constructing roads, rehabilitating canals, and installing water pipelines through Constituency Development Fund projects.

The court also heard that previous court orders issued in 2005 and 2006 requiring the removal of installations on the land were not complied with, and that police allegedly failed to act even after being served with orders and lists of squatters.

Ultimately, the court found that the actions and omissions of the respondents and their officers amounted to infringement of Criticos’ constitutional right to property and failure to obey court orders, warranting the award of damages.

Further Criticos sought various reliefs in his petition, including compensation of Ksh.100 million, arguing that due to the government’s actions, he was unable to service his debts, which had escalated because of accrued interest. 

He told the court that a Ksh.100 million loan was to be repaid from proceeds of subdivided land, but he had to obtain a court order to compel the Land Control Board to approve the subdivision.

He also sought an order compelling the Government Valuer to carry out a valuation of Land Reference numbers 6731 and 6732, stating that he lacked the financial means to conduct the exercise privately.

In its determination, the court emphasized that constitutional remedies are primarily vindicatory rather than punitive, meant to affirm rights and deter future violations. 

While declining to grant the full Ksh.100 million sought, the court found that an award of Ksh.20 million in general damages and Ksh.10 million in exemplary damages was appropriate.

The court noted that the respondents failed to respond to the petition or rebut the factual evidence presented. No affidavits were filed to counter the allegations, nor were written reasons provided to justify the actions complained of. 

The court held that failure to rebut serious constitutional allegations amounted to admission of the facts.