The Environment and Land Court in Nairobi has struck out a constitutional petition filed by TotalEnergies Marketing Kenya PLC and Gapco Kenya Limited, ruling that the dispute should have been pursued as an ordinary civil suit rather than a constitutional petition.
The Ruling
In his decision, Justice J.G. 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), later registered as Nairobi Block 58/067 in Kambi’s name.
They argued that the actions violated their constitutional right to property under Article 40 of the Constitution.
Court’s Reasoning
Justice Kemei ruled that the matter was essentially a contested land ownership dispute, requiring the testing of evidence through a full civil trial rather than constitutional adjudication.
“The doctrine of constitutional avoidance applies in this matter,” the judge stated, emphasizing 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.
Submissions by Respondents
Lawyer Phillip Nyachoti, representing Kambi and Riva Oils, argued that the petition was premature, defective, and an abuse of the court process. The Development Bank of Kenya Limited, which holds a charge over the disputed land, also supported the objection.
Petitioners’ Position
TotalEnergies and Gapco maintained that the case raised broader public interest issues, including land administration, accountability of public officers, and the integrity of land records. They urged the court to hear the matter as a constitutional petition, insisting that the alleged violations were clear and direct.
The court disagreed, striking out both the petition and the accompanying application. Costs were awarded to the respondents, except for the state respondents.
Implications
The ruling underscores the principle that land ownership disputes must be resolved through ordinary civil suits under the Land Registration Act, which provides mechanisms for impeaching titles on grounds such as fraud or illegality. It also reinforces the judiciary’s caution against overextending constitutional jurisdiction into matters where statutory remedies exist.
Conclusion
By striking out the petition, the Environment and Land Court has reaffirmed the importance of distinguishing between constitutional violations and ordinary civil disputes. For businesses and individuals alike, the ruling serves as a reminder that contested land ownership claims must be pursued through the proper statutory channels.
