Court of Appeal declares Ruaraka school land public, rejects Sh1.77bn compensation claim

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 companies that sought to secure ownership rights and billions of shillings in compensation.

In a judgment delivered in Nairobi on Friday, appellate judges upheld an earlier decision by the Environment and Land Court (ELC), finding that the compulsory acquisition process initiated by the National Land Commission (NLC) was unlawful because the land had already been surrendered to the government.

According to the Office of the Director of Public Prosecutions (ODPP), the Director of Public Prosecutions was among the respondents in the appeal.

The three-judge bench comprising Justices W. Karanja, F. Tuiyott and W. Korir dismissed the appeal filed by Afrison Export Import Limited and Huelands Limited, ruling that it lacked merit.

The judges affirmed the ELC's finding that the land on which Drive-In Primary School and Ruaraka High School stand is public land, meaning the State had no legal basis to compulsorily acquire it or compensate private entities for it.

"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 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," the court held.

The ruling effectively upholds the finding that the Sh1.5 billion already paid to the companies as partial compensation amounted to an unlawful expenditure of public funds.

In the appeal, Afrison Export Import Limited and Huelands Limited had sought several orders from the court, including a declaration that their title to L.R. No. 7879/4 was an indefeasible private title and that the portions occupied by the two schools had never been surrendered to the government.

The companies also asked the court to find that the Sh1.5 billion already paid did not constitute a loss of public funds and to compel the NLC to pay an outstanding compensation balance of Sh1.769 billion.

However, the Court of Appeal rejected all the prayers and dismissed the appeal in its entirety.

Court records indicate that the dispute dates back to 2015 when Francis Mburu, a director of the appellant companies, filed a claim before the NLC seeking compensation for about 13.5 acres of L.R. No. 7879/4 occupied by the two public schools.

Investigations later established that while 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 hosting the schools had already been surrendered to the government.

Based on those findings, the NLC informed the Environment and Land Court that the land was public property and therefore did not qualify for compensation using public funds.