NAIROBI, Kenya – 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 matter should have been pursued as a civil suit rather than through constitutional proceedings.
Justice 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 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).
The land was later registered as Nairobi Block 58/067 in Kambi’s name.
They argued the actions violated their constitutional right to property under Article 40.
However, the court held that the dispute was fundamentally about land ownership and title, requiring a full civil trial where evidence is tested through standard legal procedures.
Justice Kemei said constitutional adjudication was not appropriate for cases where title and ownership are contested.
“The doctrine of constitutional avoidance applies in this matter,” Justice Kemei stated, noting that constitutional questions should not be addressed where alternative remedies exist.
He further cautioned that converting ordinary land disputes into constitutional petitions could trivialise the Constitution and undermine legal processes.
The judge directed that disputes over ownership should be addressed through ordinary suits under the Land Registration Act, which provides legal mechanisms to challenge titles on grounds such as fraud or illegality.
In court submissions, Kambi and Riva Oils, represented by lawyer Phillip Nyachoti, argued 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, supported the objection.
The petitioners insisted the case raised wider public interest issues, including land administration, accountability of public officers, and integrity of land records.
They urged the court to treat the matter as a constitutional issue.
The court disagreed, striking out the petition and the accompanying application, and awarding costs to the respondents, excluding the state respondents.
