Court Dismisses TotalEnergies, Gapco Petition Over Nairobi Land Dispute

By : Mweru Mbugua 

The Environment and Land Court in Nairobi has struck out a constitutional petition filed by TotalEnergies Marketing Kenya PLC and Gapco Kenya Limited over the ownership of a disputed parcel of land, ruling that the matter should have been pursued as an ordinary civil suit

In a decision delivered on Friday, Justice J.G. Kemei upheld a preliminary objection raised by businessman Samuel Kazungu Kambi and Riva Oils Limited, finding that the petitioners had improperly invoked the court’s constitutional jurisdiction

TotalEnergies and Gapco had accused land administration authorities including the National Land Commission, the Chief Land Registrar and the Director of Survey of unlawfully allocating and converting land originally known as LR 209/19703 (IR 123186), later registered as Nairobi Block 58/067 in Kambi’s name. They argued that the alleged actions violated their constitutional right to property under Article 40

However, the court held that the dispute was fundamentally about contested land ownership and title, issues that require the testing of evidence through a full civil trial rather than constitutional adjudication

Justice Kemei noted that the Land Registration Act provides adequate mechanisms for challenging land titles on grounds such as fraud or illegality, and that these remedies should be exhausted before resorting to constitutional litigation

“The doctrine of constitutional avoidance applies in this matter,” the judge ruled, warning that elevating ordinary land disputes to constitutional petitions risks trivialising the Constitution

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Through their advocate Phillip Nyachoti, Kambi and Riva Oils argued that the petition was premature, defective and an abuse of the court process. Development Bank of Kenya Limited, which holds a charge over the disputed property, supported the objection

While the petitioners maintained that the case raised broader public interest concerns relating to land administration, accountability of public officers and the integrity of land records, the court rejected this position

Justice Kemei consequently struck out the petition and the accompanying application, awarding costs to the respondents, except for the state parties