EACC Asks Supreme Court to Strike Out Ruaraka Land Appeal

The Ethics and Anti-Corruption Commission has asked the Supreme Court to strike out an appeal by two companies linked to the late businessman Francis Mburu. The firms are challenging a Court of Appeal decision that declared illegal a Sh1.5 billion payment made as compensation for 13.5 acres of land occupied by Drive-In Primary School and Ruaraka High School.

Huelands Limited and Afrison Export Import Limited filed the appeal after the Court of Appeal upheld earlier findings that the land had been surrendered for public use. EACC argues that the companies are attempting to turn factual and evidential disputes into constitutional questions in order to persuade the apex court to re-examine findings already made by the Environment and Land Court and confirmed on appeal.

The commission maintains that such a move falls outside the Supreme Court’s appellate jurisdiction under Article 163(4)(a) of the Constitution. “Having made concurrent findings of fact on that issue, the petition of appeal seeks to invite this court to re-evaluate the evidence and interfere with those findings, contrary to its appellate jurisdiction,” EACC submitted.

At the centre of the dispute is whether the companies voluntarily surrendered the 13.5 acres when seeking approval for subdivision of a larger parcel in the 1980s. The firms insist there was no formally registered instrument of surrender and that treating planning approval as a mechanism for surrender amounted to compulsory acquisition without compensation.

They argue that the Court of Appeal failed to properly interpret Article 40(3) of the Constitution, which protects property from arbitrary deprivation, and that the National Land Commission had lawfully initiated compulsory acquisition proceedings after establishing that the schools stood on privately owned land. The companies further claim the NLC approved an additional Sh1.769 billion in compensation that remains unpaid.

EACC counters that none of the constitutional provisions now cited formed the basis of the dispute in the lower courts. Those courts, it says, focused on factual questions, including whether the companies had unequivocally surrendered the land as a condition for approval of a 1982 subdivision scheme.

The Environment and Land Court examined documentary evidence and concluded that the land had been surrendered. The Court of Appeal re-evaluated the record and affirmed that finding. Correspondence from February 1984 showed the Director of City Planning asking the Commissioner of Lands to transfer portions reserved for public purposes to the then Nairobi City Commission.

The schools were established on the land in 1984 and 1987 respectively, and the companies took no action to reclaim the property for decades. The appellate court consequently held that the Sh1.5 billion paid in 2017 was illegal.

The companies have separately moved to the High Court seeking to stop EACC from recovering the money pending the Supreme Court appeal, arguing that recovery would render their case nugatory.