• The ruling could see top National Land Commission officials, including ex-chairman Muhammad Swazuri, charged
It's official. The government paid Sh1.5 billion for its own land in a mega scandal that may soon return to haunt top figures in government.
In a landmark decision on Friday, the High Court ruled that the Ruaraka Land, for which the state had already agreed to pay businessman Francis Mburu Sh3.3 billion, is public land.
The acquisition of the 13.7-acres for two public schools, Ruaraka High and Drive Inn primary, was executed during Fred Matiang’i's tenure as Education Cabinet Secretary and Belio Kipsang as his Principal Secretary.
Matiang'i is now CS for Interior and considered a 'super minister overseeing development projects.
The ruling could see top National Land Commission officials, including ex-chairman Muhammad Swazuri, charged for the deal for which they are already indicted by Parliament.
Yesterday, EACC Chief Executive Officer Twalib Mbarak told the Star they would study the ruling to determine their next course of action
“The Commission will go through the judgment in order to get the way forward,” Mbarak said. He declined to respond to questions on the state of the probe, often seen as a political hot potato for the Jubilee administration
A three-judge bench returned a harsh verdict on Friday, saying the compulsory acquisition did not meet the threshold and the monies should not have been paid in the first place.
“One cannot seek to compulsory acquire what is already public land,” the judges ruled, dealing a blow to Swazuri who has often insisted the acquisition was above board.
In a new twist, the judges – Brian Ebosos, Elijah Obaga and Kossy Bor – said the NLC misled the Ministry of Education in undertaking the acquisition that led to the loss of public funds.
It was not immediately clear if the Ministry of Education's top officials were cleared of any culpability.
Matiang'i and Kipsang 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 Education Ministry's own task force report had advised against any payment.
Similarly, on 13, 2016, the High Court issued orders barring the state from making any payments in the controversial Ruaraka case.
“I duly served the orders on the Attorney General, NLC and on Matiang'i, then Acting Lands CS,” activist Okiya Omtata said. He called the payment a deliberate scheme to steal from the public.
The NLC has already paid Sh1.5 billion as part of compensation in the acquisition of the land where iRuaraka High School and Drive Inn Primary School are located.
The Sh1.5 billion was released in January last year as a downpayment to businessman Francis Mburu’s Whispering Palms Company for the land, LR NO 7879/4.
The judges said no explanation was given by Afrison Export Import Limited and Huelands Limited, both owned by Mburu, as to why they did not pursue compensation of the land in the 1980swhen the school was established.
“The schools have been on the land for the past 30 years without any contestation,” they said.
The judges said the compensation claim giving rise to the reference filed in court only emerged in 2016 as a historical injustice claim by the two companies. They said it would not serve any purpose for the commission to move to court in a reference when it has already completed the process of compulsory acquisition because to recover public funds may be difficult.
The NLC filed the reference in court last year to help it determine whether the two schools — Ruaraka High School and Drive Inn Primary School — are on public land or private land.
NLC decided to invoke the jurisdiction of the Environment and Lands Court under Section 127 and 128 of the Lands Act to determine the validity of the title of LR 7879/4.
The said sections provide that the commission may at any time, "refer to the Court for its determination on any question as to — the construction, validity or effect of any instrument, the persons who are interested in the land concerned, the extent or nature of their interest and the persons [to] whom compensation is payable."
Yesterday, the judges found that the two schools are on public land. They also found that the land where the two schools are located could not be subject to compulsory acquisition under Part 8 of the Land Acquisition Act. Afrison and Huelands had contended the land was private.
“The commission should not have relied on a search alone but gone further. A search is not conclusive evidence of ownership,” they said.
They also held that the commission did not follow the elaborate steps as stipulated in the Lands Act regarding the compensation claim, but by a complaint which emerged in 2016 as historical injustices by the two companies.
According to documents filed in court by the commission, Mburu, the director of the two companies, sent letters to the commission on July 30, 2015, October 27, 2015, and August 16 seeking compensation in lieu of its compulsorily acquired land being part of LR 7879/4.
The companies were complaining of historical injustices. It was their contention that the government had invaded their property, being LR NO no. 7879/4, proceeded to settle and even constructed schools, government administrative offices, roads and other support services without affording them compensation.
They subsequently sought compensation for 13.5364 acres occupied by Ruaraka Secondary School and 4.0 acres occupied by a chief’s camp.
Following the multiple letters that had been written by Mburu claiming compensation for his companies’ private land, on August 17, 2016, NLC wrote back to Mburu stating that it would follow up on his claims to ascertain their veracity.
The NLC then began by conducting a search on the suit property and confirmed with the Registrar of Lands that the land was a freehold title registered in the name of the two companies.
The NLC says it did a site visit to establish the status on the ground and to confirm the validity of the claims made by the companies. The ground visit confirmed that there was indeed a Drive Inn primary school and Ruaraka Secondary School in occupation of 13.7701 Acres as opposed to the 13.5364 Acres claimed by Afrison. The actual acreage was determined based on two schools’ perimeter boundary fences erected.