The Lower Eastern Times Opening The Third Eye
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The Environment and Land Court in Nairobi has dismissed a constitutional petition filed by TotalEnergies Marketing Kenya PLC and Gapco Kenya Limited, finding that the dispute should have been pursued through a regular civil lawsuit rather than a constitutional claim.
In his decision, Justice J.G. Kemei upheld a preliminary objection lodged by businessman Samuel Kazungu Kambi and Riva Oils Limited, ruling that the petitioners had wrongly invoked the court’s constitutional jurisdiction.
TotalEnergies and Gapco had alleged that land agencies—including the National Land Commission, the Chief Land Registrar, and the Director of Survey—illegally allocated and altered the status of a property originally identified as LR 209/19703 (IR 123186), later registered as Nairobi Block 58/067 in Kambi’s name. They argued that these actions infringed on their constitutional right to property under Article 40.
However, the court held that the matter essentially involved a contested ownership and title dispute that required examination of evidence through a full civil trial, rather than resolution through constitutional proceedings.
Justice Kemei noted that disputes over land ownership should be addressed under the Land Registration Act, which provides clear legal mechanisms for challenging titles on grounds such as fraud or illegality. He invoked the doctrine of constitutional avoidance, emphasizing that constitutional questions should not be entertained where adequate alternative legal remedies are available.
The judge further warned that turning ordinary land disputes into constitutional petitions undermines the seriousness of the Constitution.
In their arguments, Kambi and Riva Oils, represented by lawyer Phillip Nyachoti, maintained that the petition was premature, flawed, and an abuse of the court process, a position supported by Development Bank of Kenya Limited, which holds a charge over the contested property.
While the petitioners insisted the case raised significant public interest concerns relating to land administration, accountability of public officials, and integrity of land records, the court was not persuaded.
Ultimately, the court struck out both the petition and the related application, awarding costs to the respondents, except for the state agencies involved.
