Court rejects Ruaraka land appeal, upholds public ownership of school land

The Court of Appeal has upheld a ruling declaring the land occupied by Drive-In Primary School and Ruaraka High School as public land, dismissing an appeal by Afrison Export Import Limited and Huelands Limited.

The court ruled that the Sh1.5 billion paid as partial compensation to the firms was unlawful, null and void, saying the State cannot compulsorily acquire land it already owns. Judges also rejected a bid by the firms to secure additional compensation of Sh1.769 billion.

The decision, delivered in Nairobi on Friday by Justices W. Karanja, F. Tuiyott and W. Korir, reinforces an earlier ruling by the Environment and Land Court (ELC), which found that the land on which the two schools sit had already been surrendered to the Government and therefore remained public land.

The appeal had challenged the ELC's findings and sought to establish that the disputed land, identified as L.R. No. 7879/4, was private property legally owned by Afrison Export Import Limited and Huelands Limited.

The companies had also sought a declaration that the payment of Sh1.5 billion made as part compensation did not amount to a loss of public funds and requested an order compelling the National Land Commission (NLC) to pay a further Sh1.769 billion as the outstanding compensation balance.

However, the appellate court dismissed the arguments and upheld the findings of the lower court.

“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 judges ruled.

The court further stated that compulsory acquisition laws could not apply in the circumstances of the case.

“The doctrine of eminent domain only applies where the State initiates the taking of private property for public use,” the ruling said.

The judges went further, stressing that government institutions cannot acquire land already under state ownership.

“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.”

Court records show that the dispute dates back to 2015 when Francis Mburu, a director of the appellant firms, lodged a claim before the NLC seeking compensation for about 13.5 acres occupied by the two schools.

Investigations by the Ethics and Anti-Corruption Commission and Parliament later concluded that the land hosting the schools had previously been surrendered to the Government, making it ineligible for compensation using public funds.