The ghost of the controversial payment of Sh1.5 billion in the Ruaraka land scandal has returned to haunt the key architects barely two months after Auditor General Edward Ouko for the second time queried its acquisition.
On Friday, the High Court finally declared that the 13.77-acre parcel of land in Ruaraka registered as LR NO. 7879/4 where two schools -- Ruaraka High School and Drive Inn Primary School -- sit was public land.
The latest development puts the conduct of National Lands Commission (NLC), then led by Mohammed Swazuri and the Ministry of Education then led by Dr Fred Matiang'i under scrutiny.
While making the ruling, Justices Bernard Eboso, Elijah Obaga and Kossy Bor said the Sh1.5 billion payment to businessman Francis Mburu for the acquisition of the land was illegal.
“We find that the compulsory land acquisition should not have happened in the first place. One cannot compulsory acquire what is an already a public land,” ruled Justice Obaga.
The three judges said that was public land and could not be subjected to compulsory acquisition under Section 8 of the Land Acquisition Act.
NLC moved to court last year to determine the validity of the title of the said land and whether the two schools – Ruaraka High School and Drive Inn Primary School – are on private land.
In their ruling on Friday, the three judges said NLC did not follow elaborate steps as stipulated in the Lands Act in paying Afrison Export Import Limited and Huelands Limited, the two companies belonging to Mburu.
Even before the court ruled on the matter, Ouko had poked holes in the procedure of the acquisition and the valuation report of the NLC for the two parcels, which resulted in a variance of Sh6 million that was not explained.
The ruling also concurred with a report by a Ministry of Education’s five-member taskforce formed by the then CS Amina Mohamed to probe the matter.
The task force, chaired by Nairobi Regional Education Coordinator John Ololtuaa, had recommended that no payment should be made to the two companies given that the land was surrendered for public use in accordance with the law.
Amina, while appearing before the Senate Committee on Public Accounts and Investment (CPAIC) probing the land acquisition, indicted Matiang’i for the payment.
The CS told the Senators: “If anything is brought to my desk, I will determine if we are getting value for money. At the very least, I will budget for it before carrying out any transaction. Things should have been done differently.”
In the intrigues, both the task force report and the High Court ruling all barred the ministry from paying for the land.
It is therefore not clear if the then senior Ministry of Education officials, including Matiang’i and PS Kipsang Belio, will now be held culpable.
Both were indicted in the Ruaraka land saga in a Senate report which was shot down in the House after senators failed to garner the requisite numbers to adopt it.
The report by Senator Moses Kajwang-led committee, which caused a storm in Parliament, endorsed a probe against Swazuri, Mburu, Matiangi and Kipsang for their roles in the Ruaraka land scam.
As a result, the committee recommended that Matiang’i and Kipsang be held responsible and if found guilty, be prosecuted for the loss of Sh1.5 billion.
The controversial Ruaraka land has also sucked in two committees in National Assembly and the Senate, whose members were accused of extorting money to write a favourable report.
The National Assembly Lands Committee was accused of exonerating government officials over the questionable payment while the Senate shot down a “powerful report” after four committee members were accused of soliciting money to water down its findings.
The Budget and Appropriation Committee at the National Assembly was forced to rescind an earlier decision in its report to regularise the payment. Committee chairman Kimani Ichung’wa told the House they had decided to expunge the decision over questionable payment months after payment had been made.
The Senate Committee members Kajwang, Mithika Linturi (Meru), Kimani Wamatangi (Kiambu) and Millicent Omanga (nominated) were later to be implicated in an alleged extortion racket which almost brought the integrity of the House to disrepute.
A probe by the Powers and Privileges Committee chaired by Speaker Ken Lusaka to authenticate the claims hit a snag. And sadly, the Senate shot down the report indicting the two officials in November last year, even as the National Assembly report exonerated the officers from any wrong doing.
Two months ago, Director of Public Prosecution (DPP) Noordin Haji indicated that he was closing in on the movement of the cash proceeds of Sh1.5 billion, including some millions in a Mauritius bank account.
“We are following the money we believe to have been transferred out of the country. We seek to establish the conspirators and the beneficiaries in our financial probe,” he said and added: “The Ruaraka matter is not a dead case.”
He indicated that the financial investigation was not complete yet, but the ongoing civil case had temporarily staled. “My office is waiting for the court ruling to give direction on the same.”
The ruling seems to have been in concurrence with Mr Ouko’s queries over the part payment of Sh3.2 billion to Mburu’s firms.
“I am unable to confirm whether the process of acquisition of the 13.7 acre parcel was procedural and payment of Sh1.5 billion made to the vendor is a proper charge to public funds,” Ouko said.
When Ouko submitted his latest report for the financial year ended June 2018 on the NLC, he faulted the Education ministry’s request in March 2017 to the NLC to commence the process leading to compulsory acquisition of the land. On March 17, Matiang’i made a request to Swazuri asking NLC to begin negotiations for the compulsory acquisition of the Ruaraka land.
Swazuri wrote back advising Matiang’i that prompt compensation should be paid.
He quoted Sh3,269,040,600 as the amount required inclusive of 15 per cent statutory disturbance allowance. The NLC chair said the Commission had duly undertaken the legal process and the ministry was expected to deposit the funds in the Commission’s account.
In June 2017, the auditor said there was no justification of the payment of 15 per cent disturbance allowance since the claimant of the land had not developed it.
The court ruling reaffirms Ouko’s assertions and Senate Public Accounts and Investments Committee (CPAIC)’s verdict that this was public land and the payment to Mburu occasioned the loss of taxpayers’ money.