The Court of Appeal upheld a decision declaring that the land occupied by Drive-In Primary School and Ruaraka High School is public land, affirming that the payment of Sh1.5 billion as partial compensation to private firms was unlawful and amounted to a loss of public funds.
The Director of Public Prosecutions is a respondent in this case.
In a judgment delivered in Nairobi on Friday, Justices W. Karanja, F. Tuiyott and W. Korir dismissed an appeal by Afrison Export Import Limited and Huelands Limited, finding it lacked merit.
The appeal challenged an earlier decision of the Environment and Land Court (ELC), which held that the schools stand on public land and that the compulsory acquisition process initiated by the National Land Commission (NLC) was irregular because the land had already been surrendered to the Government.
After reviewing the evidence and applicable law, the appellate judges upheld the ELC’s findings.
“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 court ruled.
The judges added that the State cannot compulsorily acquire land it already owns.
“Consequently, the payment of Sh1.5 billion to the appellants was illegal, null and void. It was money paid under a mistake both in law and fact.”
The appellants had asked the Court of Appeal to declare their title to L.R. No. 7879/4 as an indefeasible private title, rule that the portions occupied by the two schools had never been surrendered to the Government, affirm that the Sh1.5 billion payment did not constitute a loss of public funds, and order the NLC to pay the outstanding compensation balance of Sh1.769 billion.
The court rejected all the prayers and dismissed the appeal.
Court records show that the dispute originated in 2015 when the late 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 the two schools.
Investigations established that the companies acquired the land through an indenture registered in 1981.
However, the NLC later informed the ELC that investigations by the Ethics and Anti-Corruption Commission (EACC) and Parliament concluded that the land hosting the schools had previously been surrendered to the Government, making it public land and ineligible for compensation from public funds.
Other respondents in the appeal included 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.
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