Court of Appeal upholds ruling declaring Ruaraka school land public

In a judgment delivered in Nairobi on Friday, Justices W. Karanja, F. Tuiyott and W. Korir upheld an earlier decision by the Environment and Land Court (ELC), which found that the compulsory acquisition process initiated by the National Land Commission (NLC) was unlawful because the land had already been surrendered to the Government.

The appeal had been filed by Afrison Export Import Limited and Huelands Limited, which challenged the ELC's finding that the schools sit on public land.

The appellate court ruled that the NLC had no legal basis to compulsorily acquire land already owned by the State, rendering the payment of Ksh.1.5 billion to the companies unlawful.

"On the question of the lawfulness of the part payment of the compensation, it follows from our finding that the schools are located on public land by virtue of the surrender, that the NLC had no legal basis upon which it could compulsorily acquire them. The doctrine of eminent domain only applies where the State initiates the taking of private property for public use," the judges ruled.

The court further held that the State cannot compulsorily acquire land it already owns.

"Consequently, the payment of Ksh.1.5 billion to the appellants was illegal, null and void. It was money paid under a mistake both in law and fact," the judges stated.

The companies had sought to have the Court of Appeal declare their title to L.R. No. 7879/4 as an indefeasible private title, find that the portions occupied by the two schools had never been surrendered to the Government, rule that the Ksh.1.5 billion already paid did not amount to a loss of public funds and compel the NLC to pay the outstanding compensation balance of Ksh.1.769 billion.

However, the appellate court rejected all the prayers and dismissed the appeal in its entirety.

Court records show that the dispute dates back to 2015, when Francis Mburu, a director of the appellant companies, lodged a claim before the NLC seeking compensation for approximately 13.5 acres of L.R. No. 7879/4 occupied by Drive-In Primary School and Ruaraka High School.

Investigations established that the companies acquired the land through an indenture registered in 1981.

However, subsequent investigations by the Ethics and Anti-Corruption Commission (EACC) and Parliament concluded that the land occupied by the two schools had previously been surrendered to the Government, making it public land and therefore ineligible for compensation using public funds.

The Director of Public Prosecutions was among the respondents in the appeal, alongside the National Land Commission, Nairobi City County, the Chief Land Registrar, the Director of Surveys, the Cabinet Secretaries for Lands and Education, the Attorney General and Patrick Kanyuira.