The National Land Commission (NLC) was Friday put on the spot after a three-judge bench ruled that it misled government officials who sanctioned payment of Sh1.5 billion to a businessman for land that belongs to the State.
Justices Elijah Obaga, Benard Eboso and Kossy Bor further said the payment made by the Ministry of Education to businessman Francis Mburu was irregular, as the land in which two public schools stand belongs to the government.
“It is therefore our finding that the two schools sit on public land. It is our further finding that the land on which the two schools sit could not be subject to compulsory acquisition,” the judges said.
Several government officials, including Cabinet Secretaries and Principal Secretaries, have previously appeared before Parliament to shed light on the matter.
NLC moved to court last year seeking to determine whether the land was private as claimed by Mr Mburu or whether it was public land as submitted by the Ethics and Anti-Corruption Commission (EACC).
The commission further wanted to find out whether the payment made was regular and whether the balance of the amount should be paid out.
NLC further said it completed all the legal processes of compulsory acquisition, on July 18, 2017, and the Education Principal Secretary wrote a letter to the Treasury asking it to process the compensation for the acquisition of land in which two public schools – Drive Inn primary and Ruaraka secondary – stand.
NLC argued that records held by the Lands and Physical Planning ministry showed the property is held on freehold tenure and was registered in favour of Afrison Export Import Ltd and Huelands Ltd.
The two companies allegedly purchased the property in December 1981 from a firm known as Joreth Limited.
On its part, EACC wants any further payment stopped as it pursues the recovery of Sh1.5 billion paid to the businessman.
In their ruling, the judges said looking at the record, they did not agree with the claims that the land is private. According to the judges, a search is not a conclusive document on ownership.
Further, the judges said the alleged compulsory acquisition was illegal as land that is already public cannot be compulsorily acquired.
The court also faulted the commission for filing the case, saying it was meaningless because they had already completed the process.
The judges said Mr Mburu and the two companies claiming the land did not explain why they did not pursue compensation in the 1980s when the school was established, only to pursue it decades later.
Giving a history of the land, EACC said the two companies associated with Mr Mburu – through an entity known as Drive-In Estate Developers – made an application to the City Council of Nairobi for sub-division of LR. No. 7879/4 property in 1983.
The application, EACC said, was later discussed in a Town Planning Committee meeting.
In a letter dated February 24, 1984, Mr Mburu – the Drive-In Estate Developers Limited managing director – confirmed to the Commissioner of Lands that there would be no objection to the surrender of the portions if a guarantee is given that the City Commission will develop the sites of the schools without delay.
Documents filed in court showed that the Education ministry formally requested NLC to guide it in the requisite formal process and secure public interest by acquiring the land on which the schools stand.
EACC told the court that upon investigating the matter, it discovered that NLC irregularly awarded compensation of Sh3,269,040,600 to the two firms, for the land measuring 13.5364 acres.
The anti-graft agency further said NLC chairman Mohammad Swazuri arrived at the figure before actual valuation on the portion occupied by the schools was carried out.
Evidence tabled in court showed that the Treasury, in a letter dated November 13, 2017, authorised the Education ministry to spend Sh1.5 billion in the compulsory acquisition of the land pending regularisation of the expenditure in the financial year 2017/18 Supplementary II Estimates. The balance would be paid in the next financial year.