The Court of Appeal has affirmed that the land occupied by Drive-In Primary School and Ruaraka High School is public land, dismissing an appeal that sought to overturn an earlier ruling and secure additional compensation for private companies claiming ownership.
In its judgment delivered on Friday, July 3, the appellate court also upheld the finding that the Ksh1.5 billion already paid as partial compensation to the firms was unlawful, saying the payment resulted in a loss of public funds.
According to the Office of the Director of Public Prosecutions (ODPP), athree-judge bench comprising found that the appeal filed by Afrison Export Import Limited and Huelands Limited lacked merit and dismissed it in its entirety.
The appeal challenged a previous decision by the Environment and Land Court (ELC), which concluded that the schools are situated on public land.
The lower court had also ruled that the National Land Commission (NLC) wrongly initiated compulsory acquisition proceedings because the land had already been surrendered to the Government.
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After examining the evidence and the applicable legal framework, the Court of Appeal agreed with the findings of the ELC.
"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 explained that compulsory acquisition cannot apply to land that already belongs to the State.
"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 added.
Notably, in their appeal, Afrison Export Import Limited and Huelands Limited had sought declarations recognizing their title as an indefeasible private title.
They also wanted the court to find that the sections occupied by Drive-In Primary School and Ruaraka High School had never been surrendered to the Government, declare that the Ksh1.5 billion payment did not amount to a loss of public funds, and compel the NLC to pay the remaining Ksh1.769 billion in compensation.
However, the Court of Appeal rejected all the requests and dismissed the appeal.
The dispute dates back to 2015 when Francis Mburu, a director of the two companies, filed a claim before the NLC seeking compensation for about 13.5 acres which is occupied by the two public schools.
Court records indicate that the companies acquired the land through an indenture registered in 1981.
However, during proceedings before the Environment and Land Court, the NLC stated that investigations by the Ethics and Anti-Corruption Commission (EACC) and Parliament established that the land hosting the schools had already been surrendered to the Government.
As a result, it was classified as public land and was not eligible for compensation using public funds.
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