Court strikes out petition by TotalEnergies and Gapco over land ownership dispute

The Environment and Land Court in Nairobi struck out a constitutional petition filed by TotalEnergies Marketing Kenya PLC and Gapco Kenya Limited in a land dispute.

The court ruled that the dispute should have been brought as an ordinary civil suit rather than a constitutional petition.

In a ruling, Justice Grace Kemei upheld a preliminary objection raised by businessman Samuel Kazungu Kambi and Riva Oils Limited, finding that the petition improperly invoked the court’s constitutional jurisdiction.

The petitioners had accused land authorities, including the National Land Commission, the Chief Land Registrar and the Director of Survey, of unlawfully allocating and converting a parcel of land, initially known as LR 209/19703 (IR 123186), which was later registered as Nairobi Block 58/067 in Kambi’s name.

They claimed the actions violated their constitutional right to property under Article 40.

The court found that the core issue before it was a contested land ownership dispute requiring the testing of evidence through a full civil trial, not constitutional adjudication.

Justice Kemei said where ownership and title are disputed, the proper avenue is an ordinary suit under the Land Registration Act, which provides mechanisms for impeaching titles on grounds such as fraud or illegality.

“The doctrine of constitutional avoidance applies in this matter,” the judge ruled.

She noted that constitutional questions should not be determined where adequate alternative remedies exist.

He added that converting ordinary land disputes into constitutional petitions risks trivialising the Constitution.

In submissions, Kambi and Riva Oils through lawyer Phillip Nyachoti, argued that the petition was premature, defective and an abuse of the court process, while Development Bank of Kenya Limited which holds a charge over the disputed land, supported the objection.

The petitioners maintained that the case raised broader public interest issues touching on land administration, accountability of public officers and integrity of land records.

They urged the court to hear the matter as a constitutional petition, arguing that the alleged violations were clear and direct.

The court disagreed, striking out both the petition and the accompanying application with costs awarded to the respondents, save for the state respondents.