It is now official. Kenyans were conned of Sh1.5 billion in the bizarre Ruaraka land case.
The government paid billions of shillings to third parties for its own land.
In what now puts paid to the long running matter, the High Court yesterday ruled that the National Lands Commission (NLC) misled the Ministry of Education to release Sh1.5 billion to acquire the parcel of land in Ruaraka where two schools are built.
Justices Bernard Eboso, Elijah Obaga and Kossy Bor of the Environment and Land Court ruled that the 13.5-acre land where Ruaraka High School and Drive Inn Primary School were built is public land, putting to an end the long running dispute between the ministry and businessman Francis Mburu.
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According to the three judges, the commission did not do due diligence in ascertaining Mr Mburu’s claim of historical injustices and ended up making the wrong recommendations to the Ministry of Education, leading to irregular approval of Sh3.2 billion payment to the businessman.
“We find that NLC misled the Ministry of Education to undertake a compulsory acquisition, which led to loss of public funds. You cannot seek to compulsory acquire what is already public land, their advice to the Ministry of Education was irregular and illegal,” ruled the judges. The suit was filed by the NLC in August last year, seeking the court’s determination on whether the land was public or private after questions emerged on their recommendations to the Ministry of Education to pay Mburu and his company, Afrison Export Ltd, Sh3.2 billion.
At the time of filing the suit, the commission had already paid Sh1.5 billion to the businessman and was in the process of releasing the remaining Sh1.7 billion.
The commission had argued that they did due diligence in ascertaining that the land was private and should not be held liable for facilitating the compensation to Mburu.
According to the NLC, they received complaints of historical justices from Mburu in 2016, claiming that the disputed land was his private property which was forcefully acquired by the government in 1984.
The Commission said it embarked on a fact-finding mission and after satisfying itself that the land was never legally acquired for public use, the commission advised the Education Ministry to compensate the businessman.
The NLC had also argued that it sought the Attorney General’s legal opinion before embarking on the process of acquiring the land for public use and releasing payments to Mburu.
But the judges found that the Commission did not follow the law and elaborate steps as stipulated in the Lands Act when they declared the land as private property, leading to the compensation to Mburu.
“It is therefore our finding that the two schools sit on public land and it’s our further finding that the land on which the two schools sit could not be subject to compulsory acquisition under part 8 of the Land Acquisition Act,” ruled the judges.
The judges stated that the NLC should always act in public interest to safeguard loss of public funds and they should have shown more transparency, considering that both Ruaraka High School and Drive Inn Primary School were already occupying the land. The judges said there were so many contradictions relating to the land’s title as two searches conducted in 2018 and 1991 were contradictory, which showed how lands records at the Ministry of Lands can be manipulated to suit certain interests.
According to the court, the NLC should have delved deeper into the history of the land’s title instead of relying on complaints filed by Mburu on historical injustices.
“The compensation claim giving rise to the reference only emerged in 2016 as a historical injustice claim by Mr Mburu and Afrison Export Ltd. In our view the schools have been on the land for the past 30 years without any contestation and we wonder why he took that long to file the claim,” the judges said.
They ruled that Mburu and his firm did not give any explanation why they did not pursue compensation in the 1980s when the schools were established, and that the search that the NLC relied on to advise the Ministry of Education was not enough evidence to justify the compensation.
It was the judges’ finding that the money paid out to Mburu was public money, which should not have been paid had NLC carried out due diligence in ascertaining the land’s ownership.