The Court of Appeal has upheld a landmark ruling declaring that the land occupied by Drive-In Primary School and Ruaraka High School is public land, dismissing an appeal by two private companies seeking billions of shillings in compensation.
In a judgment delivered in Nairobi on Friday, July 4, a three-judge bench comprising Justices W. Karanja, F. Tuiyott and W. Korir ruled that the payment of KSh1.5 billion as partial compensation to Afrison Export Import Limited and Huelands Limited was unlawful because the land had already been surrendered to the government.
Court Rules Schools Already Stood on Public Land
According to the Office of the Director of Public Prosecutions (ODPP), which was a respondent in the appeal, the court found that the appeal lacked merit and upheld an earlier decision by the Environment and Land Court (ELC).
The appellate court agreed with the ELC’s finding that the compulsory acquisition process initiated by the National Land Commission (NLC) was irregular because the schools already stood on public land.
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In its judgment, the court held that the NLC had no legal basis to compulsorily acquire land that already belonged to the State.
“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.
Court of Appeal Rejects Companies’ Compensation Bid
The court further stated that the government cannot compulsorily acquire land it already owns.
“Consequently, the payment of KSh1.5 billion to the appellants was illegal, null and void. It was money paid under a mistake both in law and fact.”
Afrison Export Import Limited and Huelands Limited had asked the Court of Appeal to declare their title to L.R. No. 7879/4 as an indefeasible private title and to rule that the portions occupied by Drive-In Primary School and Ruaraka High School had never been surrendered to the government.
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The companies also sought a declaration that the KSh1.5 billion already paid did not amount to a loss of public funds and asked the court to order the NLC to pay the outstanding compensation balance of KSh1.769 billion.
However, the appellate judges rejected all the prayers and dismissed the appeal in its entirety.
Court records indicate that the dispute dates to 2015, when Francis Mburu, a director of the two companies, filed a claim before the NLC seeking compensation for about 13.5 acres under L.R. No. 7879/4, which is occupied by the two public schools.
Although investigations showed that the companies acquired the land through an indenture registered in 1981, subsequent investigations by the Ethics and Anti-Corruption Commission (EACC) and Parliament concluded that the land on which the schools are located had previously been surrendered to the government.
The NLC informed the ELC that the land was therefore public property, making it ineligible for compensation using public funds.
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