Total Energies Marketing Kenya Plc & another v National Land Commission & 6 others (Environment and Land Petition E088 of 2024) [2026] KEELC 228 (KLR)
The bottom line
#A Kenyan court struck out a land petition, confirming that disputed land ownership must be fought in a civil suit, not a constitutional petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection is a pure point of law
- 2.Whether the constitutional jurisdiction of the court has been improperly invoked / whether the preliminary objection is merited
Key legal issues
#Whether the preliminary objection raises a pure point of law
Yes - a challenge to the court's constitutional jurisdiction is a pure point of law
Applying Mukisa Biscuit, the court held that a preliminary objection on jurisdiction meets the test of a pure point of law since it can dispose of the suit without ascertainment of facts. Jurisdiction can be raised at any stage, and a court seized of the matter must decide it on the material before it, per Owners of Motor Vessel 'Lillian S'.
Whether the constitutional jurisdiction of the ELC was improperly invoked
Yes - the petition is struck out on constitutional avoidance
Although the ELC enjoys jurisdiction over land-related constitutional petitions, where the real dispute is contested ownership or title of land, parties must prove their competing claims through evidence and cross-examination in an ordinary civil suit. The reliefs sought showed the petition was essentially a land ownership dispute, so the doctrine of constitutional avoidance required the court to decline constitutional adjudication.
Legal principles established
#- The ELC has jurisdiction to hear constitutional petitions concerning land rights, but where ownership or title is disputed the appropriate forum is a civil suit or statutory adjudication rather than a constitutional petition
- Jurisdiction flows from the law and a court cannot arrogate to itself jurisdiction through judicial craft or interpretation
- A valid preliminary objection must be a pure point of law, argued on the assumption that all facts alleged by the opposing party are correct, and cannot be invoked where facts require ascertainment
Court orders
#- 1.The Petition and the Application dated 30/10/24 are struck out
- 2.Costs in favour of the Respondents, except for the 2nd - 4th Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(b) and 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Relief refused
#Entire Petition and Application (declarations on allotment, conversion, charge, permanent injunction and damages for violation of Articles 40 and 47)
The dispute is a contested land ownership matter which should be resolved through an ordinary civil suit, not a constitutional petition; constitutional avoidance applies
Costs
Costs in favour of the Respondents, except for the 2nd - 4th Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The instant preliminary objection seeks to challenge the constitutional jurisdiction of this Court to hear and determine the Petition before the court. For that reason, therefore, I find that the objection raises a pure point of law
Jurisdiction is everything. Without it, a Court has no power to make one more step
the principle of avoidance, also known as constitutional avoidance, entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis
the court finds that the preliminary objection is merited. Consequently, the Petition and the Application are hereby struck out with costs in favour of the Respondents, except for the 2nd -4th Respondents
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 not a constitutional petition
Issues in the judgment
#Costs order in paragraph 36 excludes 2nd-4th Respondents from costs while the 1st Respondent and 7th Respondent supported the objection, but the same sentence also states the parties shall adduce evidence at trial, suggesting the substantive dispute continues - internal tension between striking out the petition and directing future trial evidence
Submissions dates reference 2026 (7th Respondent's submissions dated 2/1/2026) though the objection was dated 9/10/25; also the affidavit of the 1st Respondent is sworn 26/2/26 yet judgment is dated 20/1/2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Energies Marketing Kenya Plc & another v National Land Commission & 6 others (Environment and Land Petition E088 of 2024) [2026] KEELC 228 (KLR)", Case Analysis (2026). PET.E088.2024-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/228/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.