Oil marketer TotalEnergies has suffered a setback after the Environment and Land Court dismissed its case seeking to reclaim a parcel of land in Nairobi’s Makadara area from former Cabinet minister Samuel Kazungu.
The court ruled that while it has jurisdiction to hear land-related disputes, TotalEnergies and Gapco Limited wrongly filed a constitutional petition to challenge ownership of the land instead of instituting an ordinary civil suit.
The two firms had sought cancellation of the title held by Mr Kazungu and compensation for alleged violation of their proprietary rights.
TotalEnergies said it acquired the contested land from Kenya Railways Corporation in 1999 and had occupied it for 25 years, until it received an eviction notice last year.
Mr Kazungu, who is also a director at Riva Oils, said he was allocated the parcel along Jogoo Road in 2010 while serving as Kaloleni MP.
Through his lawyer, the former minister argued that the dispute was not constitutional in nature but a straightforward land ownership matter, and that TotalEnergies had wrongly invoked the court’s constitutional jurisdiction.
The court agreed, stating that although it can hear constitutional petitions relating to land rights, disputes over ownership or title should be resolved through civil suits or statutory adjudication.
“Consequently, in observance of the principle of constitutional avoidance, the court declines to entertain the instant petition as it ought to have been brought as an ordinary civil suit,” the judge ruled.
TotalEnergies had argued that its rights under Article 40 of the Constitution were violated, claiming the land was unlawfully created and allocated to Mr Kazungu in 2010 despite being registered in the name of Gapco Ltd.
The firm faulted the Chief Land Registrar and the Director of Survey for alienating private property and converting it into a new land registration regime without due process.
It sought declarations that the land was not available for allotment in April 2010, that the allocation to Mr Kazungu was unlawful and illegal, and payment of damages for alleged illegal possession.
Mr Kazungu asked the court to strike out the case, maintaining that he is the lawful owner of the land and that the dispute did not raise any constitutional question.
In an affidavit, the National Land Commission said records showed the land belonged to Mr Kazungu.
The commission added that it was impossible to ascertain TotalEnergies’ interest from records held by the Lands Office and the Directorate of Survey and Mapping, and said Gapco Ltd would need to substantiate its claim.
