Former Education Cabinet Secretary Fred Matiang'i and PS Belio Kipsang disregarded the ministry's internal report to authorise Sh1.5 billion payments for the controversial Ruaraka land, it has been revealed.
Fresh documents tabled in Parliament yesterday show that a team appointed by the Ministry of Education to investigate the land’s ownership had concluded that the parcel occupied by Ruaraka High School and Drive-In Primary was public.
The report by the Quality Assurance and Standards task force was submitted to Matiang'i and Kipsang on February 3, 2017 — 11 months before the duo approved payment of Sh1.5 billion to city businessman Francis Mburu.
This was part of Sh3.2 billion that the government had agreed to pay before the scandal burst into the public spotlight.
According to the report, the land was surrendered for public use by Drive-In Estate, a sister company to Afrison Import Export Limited, as a mandatory condition for subdivision of the 96-acre piece of land.
“From the documents availed from the school, it was evident that the surrender of a portion of land for a primary and secondary school for public utility was mandatory for approval of subdivision of the Housing Scheme,” the assessment report concluded.
“The panel thus established that the Ruaraka High school and Drive-In-Estate Primary school was established on public utility land surrendered by Drive-In-Estate and registered by the Survey of Kenya as schools' plot.”
The five-man team headed by Nairobi Regional Coordinator of Education John Ololtuaa concluded that Mburu has no basis whatsoever to seek compensation for the land.
“Having been surrendered portion of land for the public utility, the panel's view was that the claimant has no basis for compensation for the land,” the assessment report concluded matter settled once and for all,” the report stated.
The team recommended that chairman of the National Lands Commission Muhammad Swazuri and Matiang'i should hasten the processing of the school land documents to protect the property from grabbing or encroachment.
The team said Ruaraka High School occupied 7.6 acres as per the letter of allotment Ref. No 108096/57 dated June 28, 1999.
In fact, the school paid Sh3,566 for the allotment letter issued in 1999.
“The adjacent national government learning institution was Drive-In Estate Primary School, a public primary school, whose land ownership documents, as was reported, were held in trust by the Nairobi City County, as was expected of land documents of all public primary schools in Nairobi,” the report states.
But just a month after the report was submitted, Matiang'i wrote to Swazuri to kick-start the acquisition of the land, which he termed “private”.
“The Ministry of Education has determined that it's necessary to acquire all that piece of land on which the two respective institutions named above are situated. I therefore formally request the National Land Commission to commence the process leading to the acquisition of the private land,” his letter stated.
Matiangi’s letter was prompted by a letter written by Swazuri to Kipsang advising that under the Constitution, it is only the minister who can request the commission to acquire land.
Matiangi’s letter dated March 17, 2017, triggered the process leading to the compensation. It was followed by a legal opinion authored by Attorney General Githu Muigai on June 29, 2017, in which he stated that Afrison had declined the condition for subdivision of the land on April 3, 1984.
Yesterday, Education Cabinet Secretary Amina Mohamed appeared to pass the buck back to Matiang'i, her predecessor, faulting the ministry for not following through with the recommendations of the report.
“After the process was initiated by the National Lands Commission, a team was sent out to verify facts on the ground. The team came back with a report. The recommendations entailed in the report were not fully followed,” Amina told the Senate Public Accounts committee chaired by Homa Bay Senator Moses Kajwang.
On Thursday last week, the Star exclusively reported how the officials — Matiang'i, Kipsang and Swazuri — ignored a court order stopping compensation for the land to Afrison.
Activist Okiya Omtatah had filed a petition in November 2016, objecting to what he termed as “unjust enrichment by Afrison Import Export and Huelands Limited from numerous payments made by the State for multiple acquisition of LR No. 7879/4.”
The High Court had granted an injunction on December 13, 2016, which remains intact to date.
In her submission to the Senate committee, Amina said she could not understand why the payment was made in haste.
She said she did not consider the payments an emergency that necessitated they be factored into a supplementary budget.
“The letter that we received from the National Lands Commission said that we should urgently compensate for this piece of land. When I read that letter, I had the same question in my mind; that these schools had been in the land for 30 years, why was it so urgent to compensate?” she asked.
“I have not had any discussion with those who were in office then to find out why there was urgency for compensation. Maybe as per that time there was certain urgency in addressing the issue. I was not in office at that time,” she said.
Last month, the National Assembly Lands Committee, which investigated the matter, concluded that the process of acquiring the parcel was fraudulent and hinted at collusion by top Ministry of Education, Treasury and NLC officials to swindle the taxpayer.