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
#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
- Jurisdiction invoked
- Articles 162(2)(b) and 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
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.