Total Energies loses Sh355m land dispute with ex-CS Kazungu Kambi, Riva Oils

Former CS Kazungu Kambi. [File, Standard]

A court in Nairobi has struck out a Sh355 million land case filed by oil marketing firm Total Energies Marketing Kenya PLC against former Labour and Social Services Cabinet Secretary Kazungu Kambi, his company Riva Oils Limited, the Development Bank of Kenya (DBK), and the National Land Commission (NLC).

In her ruling, Environment and Land Court Judge Grace Jemutai said that although the court has powers to hear constitutional questions concerning land rights, Total and its subsidiary Gapco Kenya Limited ought to have filed an ordinary case on land ownership.

She, however, declined to strike out the case against the Attorney General and the Chief Land Registrar.

According to the judge, where there are two titles on a piece of land, the parties ought to present evidence to show that their title is genuine while the other was illegally acquired.

“Ultimately, 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 second to fourth respondents,” ruled Justice Jemutai.

Kambi and Riva’s lawyer, Phillip Nyachoti, raised an objection in the case, saying that it was defective.

Nyachoti said that for Total and Gapco’s case on the property along Jogoo Road, Nairobi County, to stand, they ought to initiate an ordinary civil case and present evidence to establish through a hearing that they were the rightful owners.

According to the lawyer, his clients were also laying claim to the same property; hence, it could not be resolved through a constitutional petition.

Nyachoti further stated that in 1999, Kambi approached the Minister of Lands seeking allocation of the property, which was then reserved for Kenya Railways Corporation (KRC).

“He engaged the then Managing Director of KRC, who confirmed that the land was in the process of being surrendered to the government,” said Nyachoti, adding that by January the following year, the Commissioner of Lands confirmed that it was available for allocation.

“After fulfilling all conditions, including payment and survey, the Commissioner of Lands confirmed via a letter dated 23 July 2010 that the land was now private property registered in the fifth respondent’s (Kambi) name. A grant of title was issued under the Registration of Titles Act (now repealed),” he added.

Nevertheless, he argued that the registrar of titles issued a gazette three days later, indicating that the title had allegedly been revoked.

Nyachoti asserted that the action was taken without notice or a hearing. He said that the powers of a lands registrar are limited to correcting errors in the description of land or boundaries, or where entries or endorsements to any grant or certificate of title are made in error or are fraudulent.

“This is a limited jurisdiction that does not include cancellation of titles. Even where the registrar exercises such powers granted to her, the facts that are conditions precedent to the exercise of such power must be shown to exist, and the party against whom the power is invoked must be given an opportunity to be heard,” argued Nyachoti.

The National Lands Commission backed Kambi’s case, arguing that he was the rightful owner of the property. The Director of Survey said that it was impossible to tell Total’s interests in the contested property from the records currently held by both the Lands Office and the Directorate of Survey and Mapping.

DBK also urged the judge to throw out the case, arguing that it had nothing to do with constitutional violations.

On the other hand, Total and Gapco’s lawyer, Ochieng Oduol, argued that the case was about interference with his client’s ownership rights.

The senior lawyer argued that the two firms were seeking the court’s intervention as Kambi was also holding a title, whose authenticity they disputed.

He stated that the nine-acre property was transferred to Gapco on 19 October 1999, and the title was registered six days later.

Oduol further said that the title could only be impeached if it was found to have been acquired fraudulently.

Total bought out Gapco on 28 March 2017.

“In sum, the first petitioner and second petitioner have been in continuous possession and use of this property LR 209/13767 (IR 80524) for over 25 years,” said Oduol.

He said that it received a demand letter from Kambi’s lawyers ordering it to leave.

He stated that Kambi then used the property as security for a Sh350 million loan from DBK. According to him, the property was registered at all times in the name of Gapco.

“For all intents and purposes, therefore, the suit property, since the original registration, was titled, alienated, and registered in favour of the second petitioner, not capable of allocation to the fifth respondent,” he said, adding that the charge to DBK was illegal and unlawful.