https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1257

Afrison Export Import Ltd & another v National Land Commission & 9 others (Civil Appeal 303 of 2019) [2026] KECA 1257 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1257 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 303 of 2019 W Karanja, F Tuiyott & WK Korir, JJA July 3, 2026 Between Afrison Export Import Limited 1st Appellant Huelands Limited 2nd Appellant and The National Land Commission 1st Respondent County Government of Nairobi 2nd Respondent Director of Surveys 3rd Respondent Chief Land Registrar 4th Respondent Cabinet Secretary, Ministry of Education Science and Technology 5th Respondent The Attorney General 6th Respondent Ethics and Anti-Corruption Commission 7th Respondent Cabinet Secretary, Ministry of Lands and Physical Planning 8th Respondent Director of Public Prosecutions 9th Respondent Patrick Thoithi Kanyuira 10th Respondent (An appeal from the judgment of the Environment and Land Court at Nairobi (Obaga, Bor, & Eboso, JJ.) dated 28th June 2019 in NAI ELC Reference No. 1 of 2018 Environment and Land Case Reference 1 of 2018 ) Judgment 1.This appeal arises from the decision on a reference filed by the 1st respondent, the National Land Commission (“NLC”), before the Environment and Land Court (“ELC”) pursuant to the provisions of sections 127 and 128 of the Land Act, 2012. After hearing the reference, the ELC (Obaga, Bor, & Eboso, JJ.), delivered an advisory on 28th June 2019 in which they held that although the appellants are still the registered proprietors of L.R. No. 7879/4, the title is held subject to the Government’s interest in the plots designated for public amenities, which crystallized upon approval of the subdivision scheme proposed in 1982 by Afrison Export Import Limited (“1st appellant”) and Huelands Limited (“2nd appellant”), and the implementation of the plan on the ground. Consequently, the learned Judges issued, among other orders, a declaration that Drive-In Primary School and Ruaraka High School (“the schools”) sit on public land, that the compulsory acquisition of the parcels of land upon which the schools were constructed was irregular and, therefore, the part payment of Kshs. 1.5 billion as compensation to the appellants constituted a loss of public funds. 2.The appellants were aggrieved by the advisory and filed this appeal. In their memorandum of appeal dated 5th July 2019 filed by H&K Law Advocates, the appellants raised the following 13 grounds, which we reproduce hereunder verbatim:“i.That the Learned Judges erred in law and fact in finding that the Appellants' application for subdivision of Land Registration Number 7879/4 of September, 1982 was approved.ii.That the Learned Judges erred in law and fact in finding that the subdivision scheme over Land Registration Number 7879/4 submitted by the Appellants was for approval in September, 1982 was implemented.ii.That the Learned Judges erred in law and in fact by circumventing the express provisions of sections 19 and 24 of the Land Planning Act (repealed) and sections 99 and 100 of the Government Lands Act (repealed) in finding that the portions of L.R. No. 7879/4 occupied by Ruaraka High School and Drive In Primary School were surrendered to the Government of Kenya.iii.That the Learned Judges erred in law and in fact and misdirected themselves by relying on survey plans to impute surrender of the portions measuring 2.741 and 2.737 hectares of L.R. No. 7879/4 occupied by Ruaraka High School and Drive In Primary School respectively to the Government of Kenya.iv.That the Learned Judges erred in law and in fact and misdirected themselves by imputing approval of subdivision scheme selectively on the basis of one condition while ignoring other conditions.v.That the Learned Judges erred in law and in fact and abdicated their judicial duty by relying on contested correspondence letters produced by the 7th Interested Party (sic) herein to impute acceptance of approval conditions without determining tehri veracity, authenticity and reliability.vi.That the Learned Judges erred in law and in fact and misrepresented themselves by taking into consideration irrelevant factors in determining the issues before them; to wit, finding that the Government made double payment in respect of 196 units of houses and land which is occupied by the General Service Unit.vii.That the Learned Judges erred in law and in fact by failing to consider the submissions of the Appellants on historical injustices while finding that the Appellants took long to pursue compensation from the Government of Kenya over portions of land occupied by the Ruaraka High School and Drive In Primary School.xi.That the Learned Judges erred in law and in fact in finding that Ms. Whispering Palms Estate Limited had no authority to receive the part payment of the compensation fund on behalf of the Appellants.x.That the Learned Judges erred in law and in fact and ignored the evidence produced by the Appellants in support of the position on the ownership of the portions of the land occupied by Drive In Primary School and Ruaraka High School.xi.That the Learned Judges erred in law and in fact and misdirected themselves by failing to take into consideration the previous judicial determinations over the proprietorship of the suit property.xii.That the Learned Judges erred in law and in fact in finding that the Appellants surrendered to the Government of Kenya portions measuring 2.741 and 2.737 hectares of L.R. 7879/4 which was mortgaged to Intercontinental Credit Finance Limited on 30th December 1981 without the prior written consent of the Mortgagor.xiii.That the Learned Judges erred in law and in fact in finding and holding that the search of a land title at the Land Registry is not a conclusive proof of ownership.” 3.Consequently, the appellants ask that their appeal be allowed and orders issued as follows:“a)The title L.R. 7879/4 is an indefeasible title of private land registered in the names of the Appellants herein.b.The portions measuring 2.747 and 2.737 hectares of L.R. 7879/4 occupied by Drive In Primary School and Ruaraka High School respectively were not surrendered to the Government of Kenya in September 1982.c.That the Appellants duly appointed Whispering Palms Estate Limited as its agent and/or nominee to receive the first tranche of compensation in the sum of Kshs. 1,500,000,000/=.d.There has been no loss of public funds as a result of the payment of the partial award of compensation of Kshs. 1,500,000,000/= and the 1st respondent should promptly pay the 1st and 2nd Interested Parties [the appellants] the balance of compensation in the sum of Kshs. 1,769,040,600/=.” 4.In brief, the history presented to the ELC by the NLC was that in the year 2015, one Mr. Francis Mburu, a director of the appellants made a claim of historical injustice to the Commission seeking compensation in respect of 13.5364 acres being a portion of the appellants’ L.R. No. 7879/4 upon which the schools stood, and which was compulsorily acquired by the Government way back in 1984. 5.Upon investigation, of the complaint, the NLC established that the appellants were indeed the owners of L.R. No. 7879/4 through an Indenture between them and Joreth Limited registered in 1981; that Drive-In Estate Developers Limited had, on behalf of the appellants, made an application for subdivision of the parcel of land and were granted a conditional approval by the then Director of Planning, Nairobi City Council. The investigation further established that Drive-In Estate Developers Limited was, however, not agreeable with the terms of the conditional approval and on 5th April 1984, the then director of Drive-In Estate Developers Limited, Mr. Francis Mburu, wrote a letter to the Director of City Planning withdrawing and cancelling the entire application for subdivision. 6.The NLC further stated that on 7th February 2017, the 1st appellant wrote to the County Government of Nairobi following up on the letter of 5th April 1984, and on 17th February 2017, the Director of Development Management and Regularization responded that following the 1st appellant’s letter of 5th April 1984, the development application for the suit land was halted and no further processing was done. 7.According to the NLC, on 18th April 1984, the then Commissioner of Lands, A. F. Mwangi, wrote a letter to the Manager of Drive-In Estate Developers Limited expressing the Government’s intention to acquire the suit land, and in 1984, Ruaraka High School was established, while Drive-In Primary School was put up in 1987. The NLC confirmed that the two schools are established on 13.7701 acres and not 13.5364 acres of the suit land. 8.Additionally, the NLC averred that it carried out the necessary compulsory acquisition processes upon confirming that the schools were indeed established on private land. Further, that other portions of the appellants’ land had previously been compulsorily acquired through the NLC, and compensation fully paid to the appellants. 9.The NLC disclosed in its pleadings that it had filed the reference following investigations by the 7th respondent, the Ethics and Anti-Corruption Commission (EACC), and Parliament, which had found that the land upon which the schools sit had been surrendered by the appellants and was, therefore, public land which could not attract compensation from the public purse. Through the reference dated 2nd August 2018, the NLC sought the opinion of the ELC on the following issues:“a.The construction, validity, or effect of the title document over LR 7879/4 - The Applicant refers this issue for consideration so that court can determine whether the two schools sit on public land or private landb.Whether or not the compulsory acquisition of the land occupied by the two schools as being undertaken by the Applicant meets the constitutional threshold of public purpose - The question shall determine whether there has been loss of public funds as a result of payment of the partial award of compensation of Kshs 1,500,000,000/-c.The person to whom compensation is payable - The applicant seeks this Court to determine whether an award compensation is payable to an agent/ nominee/assignee of the person duly identified as having interest in the land upon request. The validity and/or effect of the payment of the partial award of compensation made to the 1st and 2nd interested parties through their agent/nominee/ assignee Whispering Palms Estate Limitedd.Of vesting and formal taking of possession of compulsorily acquired land - At what point should the Applicant take possession of compulsorily acquired land; either after payment of the initial award of compensation or upon gazettement of the notice of intention to acquire.e.An opinion on whether a search of a title at the Registrar [is] conclusive evidence of proprietorship, andf.What other steps is, if any, the applicant and any other person to undertake to confirm the authenticity of a title before transacting on it.” 10.Stressing that the proceedings were non-adversarial, the NLC joined ten interested parties “to help the Honourable Court determine the issues raised in the Reference.” In the reference, the 1st and 2nd appellants were named as the respective 1st and 2nd interested parties. Also named as interested parties were: County Government of Nairobi (3rd Interested Party and now the 2nd respondent), Director of Surveys (4th Interested Party and now the 3rd respondent), Chief Land Registrar (5th Interested Party and now the 4th respondent), Cabinet Secretary Ministry of Education Science and Technology (6th Interested Party and now the 5th respondent), the Attorney General (7th Interested Party and now the 6th respondent), Ethics and Anti-Corruption Commission (8th Interested Party and now the 7th respondent), Cabinet Secretary Ministry of Lands and Physical Planning (9th Interested Party and now the 8th respondent), and Director of Public Prosecutions (10th Interested Party and now the 9threspondent). Patrick Thoithi Kanyuira, the 10th respondent, later joined the reference as the 11th Interested Party. 11.In an affidavit sworn on 26th September 2018 by their director, Mr. Francis Mburu, the appellants gave a history similar to that given by the NLC, asserting that the suit property belonged to them. Mr. Mburu averred that upon purchasing L.R. No. 7879/4 from Joreth Limited in 1981, the appellants borrowed Kshs. 21 million from Continental Credit Finance Limited (In Liquidation) to facilitate the construction of 500 maisonettes for Kenya Posts and Telecommunications Corporation (KPTC), and a mortgage to secure that lending was registered against the title. 12.Mr. Mburu averred that KPTC then took over the construction work, but sometime in 1988, KPTC, being unable to complete financing the rest of the development, entered into a sale agreement, consented to by the Official Receiver, with the Office of the President, which bought the completed 196 maisonettes which were occupied by General Service Unit (GSU) officers. Further, that although 196 out of 500 housing units were developed on a distinctly surveyed plot measuring 7.5 acres of L.R. No. 7879/4, the GSU later fenced off a total of 37.5 acres. However, Mr. Mburu averred that with the consent of the Official Receiver, the Government had paid for the land occupied by the GSU. According to Mr. Mburu, it was only in 2013, after the negotiations over the GSU land, that LR 7879/4 was subdivided into LR No. 7879/24 and LR No. 7879/25, and that there was no subdivision in 1984 as allegedly established by the EACC in its investigations. 13.Turning to the history of the portions occupied by the schools, Mr. Mburu averred that the two schools were moved from a different parcel of land to the portions they currently occupy sometime in 1989. This was during the time when he was engaging the GSU which had taken over the whole land. He averred that although the Government had paid rates for the whole land in 1987 pursuant to a court order, rates were later demanded from the appellants who continued paying them. 14.Mr. Mburu deposed that owing to the illegal allocation of the land to private developers and squatters, the appellants and the Official Receiver filed several cases claiming ownership. He made specific reference to JR ELC Civil Application No. 72 of 2002 Afrison Import Export Limited and Another vs. Nairobi City Council & 4 Others, and averred that the appellants sought judicial review orders against the City Council of Nairobi, the Commissioner of Police and the Attorney General for illegally allotting the premises to the schools and private developers and a consent recorded before Koome, J. (as she then was) affirming that the appellants were the registered proprietors of L.R. No. 7879/4 was mysteriously set aside leading to their filing of ELC No. 819 of 2012 - Afrison Export Import Ltd & Huelands Ltd vs City Council of Nairobi & Another which was still pending determination as at the time he swore the affidavit. 15.Regarding the appellants’ application in 1982 to the defunct Nairobi City Commission for subdivision of L.R. No. 7879/4 so as to develop 1,200 housing units, Mr. Mburu averred that in the subdivision plan, the appellants had proposed to set aside 4.4 hectares for a primary and secondary school apart from making provision for roads, a nursery school, a shopping centre, a community centre, a sewer and other public amenities. He averred that the subdivision plan was indeed discussed in the Town Planning Committee meeting held on 6th September 1982, which recommended approval of the plan to the Commissioner of Lands, subject to 17 conditions to be met by the appellants. According to Mr. Mburu, on 22nd November 1983, Drive-In Estate Developers Limited received an approved subdivision scheme plan from the Commissioner of Lands, subject to “acceptance in writing of all the attached special conditions”. 16.At paragraph 37 of the replying affidavit, Mr. Mburu averred that “the 1st and 2nd Interested Parties did not authorize Drive-In Estate Developers Limited to write back to the Commissioner of Lands accepting the conditions because the conditions were punitive and financially impossible to meet.” Instead, the directors of the appellants met and agreed that they could only surrender the land designated for public amenities on condition that the Nairobi City Commission would purchase the same. Thereafter, the appellants instructed Drive- In Estate Developers Limited to write to the Director of City Planning, forwarding the valuation reports in respect of the land that had been proposed for the construction of a primary school, secondary school, and other public amenities, and asking for compensation before the appellants could surrender the land. According to Mr. Mburu, on 28th March 1984, the Director of City Planning responded to the appellants’ demand letter dated 14th March 1984, stating that the Nairobi City Commission never entertained negotiations on the conditions of approval and was not interested in the valuation reports and consequently returned them. Through the same letter, Drive-In Estate Developers Limited was advised to either accept the conditions in their totality or cancel the subdivision scheme. Further, that on 5th April 1984, the appellants responded to the letter rejecting the approval conditions and cancelling the application for subdivision. According to Mr. Mburu, there was no further communication on the matter, although the developer engaged the Ministry of Education and the Commissioner of Lands with a view to developing private schools. 17.The appellants denied any surrender, asserting that a surrender required registration, yet there was no evidence of any registration or even subdivision of the land. The appellants stressed that the written consent of Intercontinental Credit Finance Limited, the registered mortgage holder, was never obtained. Further, that there was no partial re-conveyance prepared or registered by the mortgagee re-conveying or discharging the portions alleged to have been surrendered by the appellants to the City Commission of Nairobi. 18.Mr. Mburu additionally averred that if indeed there was any subdivision approval in respect of the land, then the same would have lapsed by 1986 by operation of section 19 of the repealed Land Planning Act because the developer had not commenced the construction of the housing units for which consent had been given. According to Mr. Mburu, applications made in 1996 for allotment made by certain persons for the area initially earmarked for commercial plots in the canceled subdivision scheme were rejected by the Commissioner of Lands, who stated that the plan was canceled and the plots were on private land. 19.In response to the affidavit sworn on behalf of EACC, Mr. Mburu rejected the letters exhibited therein, averring that the letters were in respect of communication between the Director of Physical Planning and the Commissioner of Lands, which were only copied to Drive-In Estate Developers Limited for information and did not amount to approval of the subdivision plan. He also averred that the letters were not credible as they were not sequential. 20.In respect to the letters allegedly written by Drive-In Estate Developers Limited, Mr. Mburu outrightly disowned the letters, averring that they were not on the letterhead of the company and the author never worked for the developer. Further, that Jane Mburu and himself, were the only directors of the developer, and they were the only ones who wrote letters on behalf of the developer. Mr. Mburu also averred that some of the documents exhibited by the EACC were not only incomplete, but confirmed that as at March 1985, the subdivision plan had not been approved. Referring to the allotment made by the Commissioner of Lands to the Ministry of Education in June 1999, Mr. Mburu deposed that it was an illegal and irregular allotment because the Commissioner of Lands had no authority to allocate private land. 21.Responding to a letter which the EACC claimed was an admission of the surrender by the Official Receiver, Mr. Mburu rejected the insinuation, averring that a reading of the letter showed that the Official Receiver, Mr. Omondi Mbago, who was the liquidator of Continental Credit Finance Ltd, never admitted the surrender or confirmed the existence of any title as he simply stated that he was informed that the piece of land was one of those surrendered by Drive-In Estate Developers Limited, and indicated that if that was the case, he would release the title once the deed plans for separate titles were registered. 22.Mr. Mburu conceded that the housing units that were being developed by KPTC commenced immediately upon the purchase of the property by the appellants and without any development scheme. 23.Finally, Mr. Mburu accused the EACC of witch hunt because the appellants declined to release millions of Kenyan shillings to its officers through a named agent. 24.The appellants also filed an affidavit sworn on 18th December 2018 by Patrick Tom Odongo, who introduced himself as a practising physical planner with over 30 years’ experience. In summary, his evidence was that the subdivision scheme plan that had been proposed by the appellants was a comprehensive development that included the construction of houses, physical infrastructure, social amenities, as well as the undertaking of the applicable preliminaries as part of the process of the implementation of the subdivision scheme plan. 25.According to Mr. Odongo, all these activities were to be undertaken by the land owners, and the activities not having been executed, there was no possibility that the condition for the surrender of public utility plots could have occurred in isolation. He averred that the surrender could only have taken place once the implementation was complete, and this was not the case. His conclusion was that the subdivision scheme plan was, therefore, not enforceable. 26.Priscilla N. Mwango swore an affidavit on 20th November 2018 on behalf of the 3rd respondent. In summary, she averred that she was a surveyor working with the Department of Surveys of Kenya in the Ministry of Lands and Physical Planning. She disclosed that L.R. No. 7879/4 was first subdivided on 10th April 1985, and the survey was revised on 1st November 2011, resulting in two parcels being L.R. No. 7879/22 and L.R. No. 7879/23. Following a request from the Office of the President to establish the measurement of the portion occupied by the GSU, a survey was conducted, leading to the issuance of deed plans for L.R. No. 7879/24 and 7879/25 on 18th March 2016. 27.On behalf of the 4th respondent, C. K. Ngetich, a Principal Registration Officer in the Ministry of Lands and Physical Planning, swore an affidavit on 24th January 2019 averring that L.R. No. 7879/4 measuring 96 acres, which originally belonged to Joreth Limited, was transferred to the appellants as tenants in common through a conveyance dated 29th December 1981 and registered on 30th December 1981. That concurrent with the transfer, the appellants mortgaged the property to Continental Credit Finance Limited for a sum of Kshs. 21 million. Also, that there was a further mortgage dated 11th July 1986 to KPTC for Kshs. 165 million. He deposed that the records also showed that a caveat dated 1st March 2018 was placed by the Government claiming interest. 28.According to the Chief Land Registrar, the NLC had shown the intention to acquire various portions of the land by issuing gazette notices. The Chief Land Registrar concluded by deposing that the appellants were the registered proprietors of the entire parcel of land. 29.On behalf of the 5th respondent, Dr. Belio Kipsang, the Principal Secretary in the Ministry of Education, State Department of Early Learning and Basic Education swore an affidavit on 15th November 2018 deposing that the process of the acquisition of the land measuring 13.5364 acres occupied by Ruaraka High School and Drive-In Primary School came to the attention of the Ministry through a letter dated 13th September 2016 addressed to the Cabinet Secretary by the Chairman of the NLC indicating that they had received a complaint from the appellants, who were the registered owners of LR No. 7869/4, that the schools had been occupying a portion of their land for over 30 years without compensation. He averred that it was that letter and the advice of NLC which triggered the process that eventually led to the part payment of Kshs. 1.5 billion to compensate the appellants. Dr Belio stressed that the appellants were in possession of the instruments of ownership of the land and that due diligence was exercised in the process of compulsory acquisition. 30.Dr. Belio closed his affidavit by averring that by going ahead with the acquisition, the Ministry was convinced that the NLC, being a constitutional commission duly mandated to conduct the process of compulsory acquisition, had access to relevant land records, and would competently, truthfully, faithfully, and lawfully interpret and apply the law, rules, and regulations, and the Ministry acted as advised. 31.The 7th respondent expressed its position through affidavits sworn on 15th August 2018 and 22nd January 2019 by its forensic investigator, Mr. Alfred Joel Mwendwa, stating that the Director of Surveys had confirmed that there was a sub-division of L.R. No. 7879/4 in 1985, thus buttressing EACC’s investigatory findings that there existed an approved sub-division scheme plan upon which L.R. No. 7879/4 was surveyed, leading to the production of survey plans FR No. 179/55-61. The EACC insisted that there was an approved sub-division scheme as confirmed by the affidavit of Timothy W. Mwangi, sworn on 26th October 2018. Further, that the sub-division scheme plan had never been revised, as alleged by the appellants. According to the EACC, prior to the engagement between the appellants and KPTC in 1986, the appellants, through their agent, Drive-In Estate Developers Limited, had initiated the sub-division of the property in 1982, leading to a conditional approval of the sub-division scheme plan on 22nd November 1983. 32.The EACC’s position was that the appellants did indeed instruct a private surveyor to conduct a survey with a view to the titling of the maisonnetes bought by KPTC and that the survey was approved by the Director of Surveys through a letter dated 10th May 1985. Further, that the appellants’ surveyor prepared 506 deed plans out of which 323 were submitted to Continental Credit Finance Limited. That although the 196 maisonettes had been allocated land reference numbers, the appellants had failed to lodge the mother title for the purposes of subdivision and creation of the respective titles. According to the EACC, the land reference numbers for the 196 maisonettes arose from their respective deed plans, which in turn were prepared following the survey carried out in 1985 on the basis of the subdivision scheme plan approved in 1983. The EACC rejected the appellants’ reference to the sub-division schemes of 2011 and 2013, contending that those sub-division schemes were irregular and void. 33.According to the EACC, the appellants expressly and impliedly accepted the conditions of the sub-division scheme plan of 1983. It was averred that it was entirely upon the appellants as the persons who applied for the sub-division to complete the process by preparing the deed of surrender and lodging it together with the mother title for registration and processing of the resultant titles by the Land Registry. The EACC took the position that convenience cannot accrue to a party from his own wrong and a party cannot be allowed to benefit from his own wrongful act. Further, that the developments on the property, including the 196 maisonettes, the schools, the community centre, sewer lines, and access roads, mirror the 1983 sub-division scheme plan. 34.On the appellants’ contention that the sub-division scheme plan could not have been approved without the concurrence of the mortgage holder, Continental Credit Finance Limited, the EACC asserted that such consent was not necessary since the scheme was only meant to show what the appellants intended to surrender for purposes of access and public use. 35.Still rejecting the appellants’ averment that the sub-division scheme plan was never approved, the EACC insisted that evidence of the approval of the plan is found in the existence of deed plans for each maisonette and the parcels of the portions occupied by the GSU, the schools, the multipurpose and community centre, and the roads. Further, that had the appellants been dissatisfied with the approved plan, they ought to have appealed to the Minister in writing, with a further right of appeal to the High Court, as was provided by section 21 of the Land Planning Act, Cap 303 (repealed). 36.The appellants’ deposition that the documents exhibited by the EACC were forgeries was rejected, with the EACC averring that the impugned documents were retrieved from the Ministry of Lands, the City Council of Nairobi, and the appellants. In response to the appellants’ averment that one J.W. Maina who purported to sign letters on behalf of Drive-In Estate Developers Limited was not a director of the developer and therefore a stranger, the EACC deposed that although J. W. Maina was indeed not a director of the developer, records showed that he was a director and shareholder of the 2nd appellant and, therefore, a co-owner of L.R. No. 7879/4. The EACC queried the credibility of the evidence of Mr. Francis Mburu, contending that in the reference, he had denied authoring the letter 20th February 1985 addressed to one Bedan Mbugua, notwithstanding his admission that he wrote the letter in a statement recorded with the EACC on 26th February 2018. 37.The EACC rejected the 10th respondent’s averment that he was unaware of the 1983 approved sub-division scheme plan, the subsequent survey, and the processing of deed plans, asserting that the 10th respondent referred to the deed plans for the 196 maisonnetes in several correspondences. 38.In regard to the key question as to whether the appellants’ application for sub-division was ever approved, the EACC gave a chronology of the events as follows: that the application for sub- division was made to the City Council of Nairobi by the appellants through an entity known as Drive-In Estate Developers Limited; that the Town Planning Committee in its meeting held on 6th September 1982 recommended approval subject to 17 conditions; that in a letter dated 22nd September 1982, the Director of City Planning notified the Commissioner of Lands of the approval; that through a response dated 8th October 1982, the Commissioner of Lands returned the sub-division plans for amendments advising that the owners of the land needed to surrender an additional strip for road widening purposes so that the main distributor road measures 25 meters wide; and, that on 22nd December 1982 the Director of City Planning wrote back to the Commissioner of Lands confirming that the land owners had surrendered 6 meters of their land as evidenced in the attached revised drawings which the Commissioner of Lands was requested to approve. 39.According to the EACC, the Commissioner of Lands requested comments from the Director of Physical Planning and the Director of Surveys in respect of the proposed subdivision scheme, and on 23rd June 1983, the Director of Physical Planning proposed amendments to be made before approval. The Director of Surveys had no objection as per the letter dated 13th June 1983. On 30th June 1983, the Commissioner of Lands wrote to the Director of City Planning directing that the proposed amendments be incorporated before he could approve the plan. The Director of City Planning returned the revised layout plan of the sub-division of the parcel of land to the Commissioner of Lands on 25th October 1983, recommending approval subject to the conditions outlined in the letter dated 22nd December 1982. On 11th November 1983, the Director of Physical Planning wrote to the Commissioner of Lands recommending a final approval of the sub-division scheme plan, stating that he had further examined the plan and found it to be in order from a town planning point of view. Further, that on 11th November 1983, the Commissioner of Lands wrote to Drive-In Estate Developers Limited asking for Kshs. 21,510 to facilitate the approval of the sub-division scheme plan, and the money was indeed paid to the Department of Lands on 18th November 1983. The approval of the sub-division scheme plan in respect of L.R. No. 7879/4 was communicated on 22nd November 1983 to Drive-In Estate Developers Limited by the Commissioner of Lands, subject to 17 conditions attached to the approval. 40.The EACC deposed that based on the approved sub-division scheme, the Director of City Planning on 20th February 1984 requested the Commissioner of Lands to release the portions surrendered for public purposes to the Nairobi City Commission for development. On 24th February 1984, Mr. Francis Mburu, the Managing Director of Drive-In Estate Developers Limited, confirmed to the Commissioner of Lands that there would be no objection to the surrender of the portions if a guarantee was given that the Nairobi City Commission would develop the schools without delay. A guarantee to that effect was given by the Director of City Planning on 29th February 1984. 41.Following the guarantee given to Mr. Mburu, the Nairobi City Commission wrote a letter dated 8th March 1984 to the Commissioner of Lands, urging him to surrender the pieces for the development of the schools. However, on 14th March 1984, the Managing Director of Drive-In Estate Developers Limited wrote to the Nairobi City Commission seeking compensation of Kshs. 5,850,000 before the surrender of the public utility plots on the basis that private land should not be acquired without compensation. In a response dated 28th March 1984, the Director of City Planning notified Drive-In Estate Developers Limited that the proposed development was given conditional subdivision approval and they could either accept the conditions in total or cancel the subdivision scheme. 42.According to the EACC, the Managing Director of Drive-In Estate Developers Limited, through a letter dated 5th April 1984, purportedly canceled the entire application of the sub-division of the land. The EACC averred that the letter was written with the intention of perpetuating fraud. The EACC contended that despite purporting to cancel the application for sub-division, Drive-In Estate Developers Limited wrote to the Commissioner of Lands on 14th May 1984, followed by another letter dated 4th July 1984, requesting to be re-allotted the plots surrendered by the appellants so that they could construct schools and the shopping centre. 43.Additional documentation placed before the ELC by the EACC included a letter dated 12th July 1984 addressed to the Permanent Secretary, Ministry of Education by the Commissioner of Lands forwarding a plan showing a portion measuring 3.05 hectares for the purpose of a secondary school; letter dated 20th February 1985 addressed to one Mr. Bedan G. Mbugua by the appellants telling him that they could not sell him the portion on which the primary school sits as requested because the Commissioner of Lands had already allocated that portion to the City Council of Nairobi; comments made in March 1985 by the Director of Physical Planning to the Commissioner of Lands as to the positioning of the multipurpose/community centre and the nursery school leading to the Commissioner of Lands’ letter dated 22nd March 1985 revising the sub-division plan; the Commissioner of Lands’ letter of allotment dated 28th June 1999 granting the Permanent Secretary of the Ministry of Education a site for a secondary school and the receipt for Kshs. 3,556 issued to the school for payment for the allotment; and, the letter dated 21st February 2000 from the Official Receiver addressed to the Principal of Ruaraka High School confirming that he was in possession of the title deed for L.R. No. 7879/4 and would release it once the deed plans for all the titles were registered. 44.Two affidavits were filed on behalf of the 8th respondent. The first one was sworn on 26th October 2018 by Timothy W. Mwangi, a Deputy Director of Physical Planning in the Ministry of Lands and Physical Planning. He deposed that the applicable laws at the time were the repealed Land Planning Act, Cap 303 and the Town Planning Act, Cap 134, and that by virtue of section 11(2) of the Land Planning Act, a person seeking consent for development was required to indicate the land he intended to surrender for the purposes of access to any sub-division within the land and public purpose utilities (educational, medical, religious, public open spaces, car parks, Government and local Government purposes) consequent upon the proposed sub- division. Mr. Mwangi averred that once land was surrendered for public purposes to the Government free of cost, it ceased being private land under section 16 (2) of the Land Planning Act and would henceforth be administered under the repealed Government Lands Act, Cap 280, as Government land. 45.Turning specifically to L.R. No. 7879/4, Mr. Mwangi deposed that through a letter dated 22nd September 1982, the City Council of Nairobi forwarded to the Commissioner of Lands the subdivision scheme as recommended for approval by the Town Planning Committee in its meeting of 6th September 1982. He averred that condition 10, being one of the conditions attached to the approval, required the surrender of land free of cost to the City Council of Nairobi for purposes of nursery, primary school, secondary school, social centres, special purpose, and shopping centre. 46.According to Mr. Mwangi, the subdivision scheme was revised and recommended for approval by the City Council of Nairobi on 10th January 1985 and approved by the Commissioner of Lands on 22nd March 1985. Further, that upon approval of the subdivision scheme, the resultant land use pattern became part of the planning framework of the City of Nairobi and ceased being under the control of the land owners as the proponents of the sub-division scheme. 47.Other correspondences referred to by Mr. Mwangi in support of the averment that there was an approved sub-division scheme were: letter dated 3rd May 1983 from the Commissioner of Lands to the Director of Physical Planning for comments on the attached proposed sub-division; letter dated 3rd May 1983 from the Commissioner of Lands to the Director of Physical Planning amending the sub-division plan so that the public utilities plots would be surrendered to the Government and not the City Council; letter dated 23rd June 1983 from the Director of Physical Planning to the Commissioner of Lands recommending some amendments before the approval of the plan; letter dated 27th July 1983 from the Director of Physical Planning informing the Commissioner of Lands that the Project Manager of Drive-In Estate Developers Limited had revised the scheme and incorporated all the proposed amendments and that the scheme was acceptable for approval from a physical planning point of view; letter dated 22nd August 1983 from Drive-In Estate Developers Limited to its consultant, Ichoya Consortium Company asking the consultant to follow up on the approval of the amended sub-division scheme plan with the City Council of Nairobi; letter dated 4th July 1984 by Drive-In Estate Developers Limited surrendering to the Commissioner of Lands the plots indicated under condition 10 of the approval letter; and, letter dated 30th April 1996 to the Director of Physical Planning from the Commissioner of Lands asking for the preparation of a comprehensive Part Development Plan for the shopping centre which was part of the surrendered land. 48.The 8th respondent’s second affidavit was sworn on 18th January 2019 by Roberts J. Simiyu, the Chief Land Administration Officer, who restated the historical background of L.R. No. 7879/4, and averred that the appellants’ scheme of subdivision was approved. Further, that Drive-In Estate Developers Limited wrote to the Commissioner of Lands on 4th July 1984, surrendering all public utility plots as per the approval letter dated 22nd November 1983. 49.It was attested by Mr. Simiyu that on 12th July 1984, the Commissioner of Lands issued a letter to the Permanent Secretary, Ministry of Education, Science and Technology, reserving the site planned for a secondary school. Later, on 28th June 1999, the Commissioner of Lands formally issued a letter of allotment to the Permanent Secretary, which was accepted by Ruaraka High School as evidenced by an official receipt issued on 14th September 1999. 50.According to Mr. Simiyu, the Official Receiver did indeed allude to the surrender of the land in a letter he addressed to the Principal of Ruaraka High School on 21st February 2000. Also exhibited was the letter dated 12th May 2005 addressed to the Commissioner of Lands by the Principal of Ruaraka High School seeking confirmation that the land on which the school stood belonged to the school and asking for the processing of the title deed. In reply, the Commissioner of Lands, through a letter dated 26th May 2005, asked the Principal to liaise with the Permanent Secretary of the Ministry of Education to facilitate the preparation of the title deed in the name of the school. In conclusion, Mr. Simiyu averred that the Ministry of Lands and Physical Planning was awaiting issuance of the relevant deed plan from the Director of Surveys to facilitate processing of a title to the school. 51.Ms. Faith Mwila, a prosecution counsel in the Office of the Director of Public Prosecutions (DPP), swore an affidavit on behalf of the 9th respondent in October 2018, pointing out that the reference was brought by the NLC belatedly, as it ought to have been brought prior to making any award or payment in respect of the land in question. She viewed the NLC’s action of filing the reference as an attempt to unlawfully curtail the constitutional and statutory mandates and independence of the EACC and the DPP. She, therefore, urged for the dismissal of the reference, stating that it had been brought in bad faith and was “saddled with untruths and half-truths”. 52.The 10th respondent, Mr. Patrick Thoithi Kanyuira, a Deputy Chief State Counsel in the Office of the Official Receiver, swore an affidavit on 7th January 2019. He averred that Continental Credit Finance Limited (In Liquidation) held an undischarged mortgage over L.R. No. 7879/4. Mr. Kanyuira deposed that the parcel of land, which measured 96 acres, was registered in the names of the appellants. Further, that simultaneous with the purchase of the property, the appellants borrowed Kshs. 21 million from Continental Credit Finance Limited (In Liquidation) to facilitate the construction of 500 residential units, which were to be bought by the staff of the defunct KPTC. The rental income was to be applied to settle the outstanding loan. 53.Only 196 units were developed and occupied by the GSU, which eventually appropriated 37.5 acres. Mr. Kanyuira averred that following a recommendation made by an inter-ministerial task force, the Government had acquired the portion occupied by the GSU, and the property had been subdivided in 2013, yielding L.R. No. 7879/24 and 7879/25. 54.In response to the affidavits filed by the EACC, Mr. Kanyuira denied knowledge of any subdivision of the property in 1983; acknowledged that there was only an intention to sub-divide the property with provisional approval granted; averred that the initial application for sub-division was canceled by the appellants on 5th April 1984; stated that the Official Receiver never gave consent to the proposed sub-division of 1983 but gave consent to the one of 2013; deposed that the Commissioner of Lands then in office had sworn affidavits stating that no sub-division or surrender took place during his tenure; asserted that the Director of Surveys had confirmed that the only authenticated subdivision approval from that office is the one that resulted in L.R. No. 7879/24 and L.R. No. 7879/25; and, deposed that the process of subdivision and surrender of an interest in land can only be conveyed by way of a duly registered instrument of surrender. 55.When the appeal came up for hearing on 8th December 2025, learned counsel Mr. Macharia was present for the 1st appellant, while learned counsel Mr. Kingara and Mr. Mirie represented the 2nd respondent. Also, in attendance were learned counsel Mr. Odoyo for the 1st respondent; learned counsel Mr. Odhiambo for the 2nd respondent; learned Chief State Counsel Mr. Eredi for the 3rd, 4th, 5th, 6th and 8th respondents; learned counsel Ms. Kibogy for the 7th respondent; learned prosecution counsel Mr. Akula holding brief for learned prosecution counsel Mr. Monda for the 9th respondent; and, learned counsel Mr. Njenga for the 10th respondent. Apart from relying on the filed submissions, counsel for the parties also made oral highlights. 56.Despite filing a joint appeal, the appellants filed separate submissions. Through submissions dated 15th May 2024, the 1st appellant identified four issues for the determination of the Court as follows:a.Whether rule 16(2)(iii) of the repealed Development and Use of Land (Planning) Regulations, 1961 was unconstitutional, and thus violated the provisions of section 75(1) of the retired Constitution of Kenya, to the extent that it sought to compel owners of private land to surrender their property free of cost as a precondition for planning approval;b.Was there a lawful and procedurally compliant surrender of the land occupied by Drive-In Primary School and Ruaraka High School to any Government organ or agency?c.Did the National Land Commission lawfully compensate the appellants for the land occupied by Drive-In Primary School and Ruaraka High School?d.Should the Court grant the orders sought in the appeal? 57.On the first issue, the 1st appellant submitted that the pivotal question before the ELC and this Court is whether the appellants were under statutory obligation to surrender a portion of their property to the Government free of cost, and if such obligation existed, whether the obligation was void for violating the repealed Constitution. Counsel submitted that the ELC did not examine the constitutional soundness of the demand for surrender of the land free of cost as a condition for granting planning approval, but only dealt with the facts regarding the surrender. According to counsel, the ELC, therefore, made a fatal error of law in finding that “every registered title of land is held subject to the provisions of the prevailing physical planning laws” without recognizing that those physical planning laws were subject to the provisions of section 75 of the former Constitution, which protected citizens from deprivation of property. 58.Counsel equated the involuntary surrender of private property to a State organ or agency, free of cost to compulsory acquisition of property. According to counsel, section 75 of the previous Constitution, which was similar to Article 40(3) of the current Constitution, expressly barred such surrender. It was submitted for the 1st appellant that the impugned regulation, which was enacted in 1961, clearly offended the right to property protected by the retired 1963 Constitution. 59.In support of the argument that surrender of private land for public use without compensation is unconstitutional, reference was made to section 3 of the previous Constitution, which decreed that “if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of inconsistency, be void.” Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169 was cited for the proposition that an act that is void is a nullity in law. Also relied upon were Marbury vs. Madison, 5 U.S. 137 (1803) (as cited in Attorney General vs. Law Society of Kenya & Another [2017] eKLR) and East African Community vs. Republic [1970] EA 457 for the affirmation of the principle of constitutional supremacy and the holding that any law in conflict with the Constitution is void to the extent of the conflict. 60.Turning to the second issue as to whether there was a surrender of portions of the appellants’ land to the public, counsel argued that there was no surrender because the appellants rejected and never complied with the conditions imposed by the Director of Physical Planning and the Commissioner for Lands. According to counsel, even the ELC did not find, as a matter of fact, that the appellants had surrendered any land but instead determined that the court’s “understanding of the physical planning laws at that time is that once the subdivision scheme was approved and implemented on the ground, then the public plots were deemed to have been surrendered for the designated public amenities.” 61.Relying on the decisions in Telkom Kenya Ltd vs. Jeremiah Achila Gogo & Another [2004] eKLR; Esther Anyango Ochieng vs. Transmara Sugar Company [2020] eKLR; and Anyang’ Nyongo & 10 Others vs. Attorney-General & Others [2008] 3 KLR (EP) 398, counsel disputed the ELC's reliance on a "deemed" surrender, arguing that "deeming" was a legal fiction that could not be used to dispossess a citizen of land without compensation. Counsel insisted that the Constitution, as it stood at the material time, and even now, did not and does not contemplate the compulsory expropriation of property on the basis of a legal fiction. 62.Counsel cited the decisions in Commissioner of Lands & Another vs. Coastal Acquaculture Limited [1997] eKLR and Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR to stress that, owing to the sensitivity of land issues, private land can only be acquired for public use in strict compliance with the land laws and the Constitution. 63.Relying on section 99 of the repealed Government Lands Act, Cap 280 which required registration of all transactions affecting land, counsel, while asserting that the Commissioner of Lands has consistently stated that the land was never surrendered, argued that the appellants never surrendered portions of their land in the 1980s because there is no registration of such surrenders. 64.Counsel challenged the finding by the learned Judges that the subdivision was confirmed by the implementation of the plan on the ground, arguing that once the breach of statute was brought to the attention of the court, it was its duty to uphold the law. In support of this proposition, reliance was placed on the decision of the Court in Standard Chartered Bank vs. Intercom Services Limited & 4 Others [2014] eKLR for the holding that no court will lend its aid to a man who has founded his cause of action on an immoral or illegal act. Stressing that the majority of the developments on the land were undertaken by individuals who had been unlawfully allocated the land, counsel submitted that the developments did not deserve the protection of the law. 65.In concluding the arguments on the second issue, counsel submitted that the inescapable conclusion to be drawn from the law as applied to the facts of the case is that the appellants have never in fact or in law surrendered the land occupied by the schools to the Commissioner of Lands, the defunct City Council of Nairobi, or any other Government body. 66.Concerning the third question as to the lawfulness of the compensation for the land occupied by the schools, the 1st appellant defended the payment made to the appellants’ nominated agent, Whispering Palms Estate Limited, arguing that the ELC erred in finding the payment irregular. 67.Finally, the 1st appellant answered the fourth question by submitting that the appellants have made a compelling case for the grant of the orders sought in their memorandum of appeal. 68.On its part, the 2nd appellant prosecuted the appeal through submissions dated 25th April 2024. The submissions are in respect of each ground of appeal, but we will abridge them. Counsel argued that the learned Judges erred in finding that the 1982 subdivision scheme was approved and implemented. According to counsel, the proposed approval of the scheme, which was subject to 17 mandatory conditions, including the surrender of the freehold title for conversion to leasehold, was expressly rejected in writing on 5th April 1984. The 2nd appellant maintained that the scheme was botched, cancelled, and lapsed by operation of law as enacted under section 19 of the Land Planning Act (repealed). The 2nd appellant stressed that no formal surrender of the land occupied by the schools ever occurred, as no instruments were registered as required by the repealed Registration of Titles Act, Cap 281. It was further argued that the schools are not even situated on the plots originally proposed in the aborted 1982 plan. 69.Referring to Jane Muthini vs. Veronica Makau [2022] eKLR for the holding that a certificate of official search is conclusive evidence as regards the proprietorship of land; Embakasi Properties Limited & Another vs. Commissioner of Lands & Another [2019] eKLR for the principle that a certificate of title can only be impeached if fraud or misrepresentation is established, or if it has been acquired illegally, unprocedurally or through a corrupt scheme; Mbarak vs. Freedom Limited [2024] KECA 160 (KLR) for the proposition that the sanctity of title to land is protected by the Constitution; and, Chemei Investments Limited vs. The Attorney General & Others - Nairobi Petition No. 94 of 2005 for the holding that registration of title to land is absolute and indefeasible, counsel faulted the learned Judges for failing to adhere to these principles. 70.Additionally, the 2nd appellant submitted that the trial court ignored several prior decisions of courts of concurrent jurisdiction that had already determined that the subdivision was never implemented and that the land remained private property. Consequently, counsel argued that the trial court was functus officio with respect to these settled issues. 71.Finally, in respect to the issue of compensation, counsel disputed the finding that the payment of Kshs 1.5 billion was irregular, arguing that, as the lawful owners of the land, the appellants were entitled to compensation under Article 40 of the Constitution for the compulsory acquisition. It was also argued that the appellants had the contractual freedom to direct that the compensation funds be paid to their nominated agent, Whispering Palms Estate Limited. We were therefore urged to allow the appeal. 72.Counsel for the 10th respondent supported the appeal through submissions dated 9th October 2019, asserting that no subdivision could have occurred without the consent of the registered chargee, which consent was never obtained. It was submitted that the ELC misdirected itself by construing a mere "recommendation for approval" as a final approval and by implying surrender in light of developments that predated the alleged planning scheme. 73.The 10th respondent argued that the processes of subdivision and surrender are strictly governed by statute and require registered legal instruments. In support of this proposition, reliance was placed on sections 99 and 100 of the Government Lands Act (repealed) to urge that no evidence of land transactions can be received by a court unless they are in writing and duly registered. The 10th respondent also cited section 97(1) of the Evidence Act to stress that the burden of proving a surrender lies with the State and must be demonstrated by documentary and not oral evidence. 74.Finally, the decision in Chief Land Registrar & 5 Others vs. Koech & 3 Others [2018] KECA 27 (KLR) was cited for the proposition that surrender cannot be equated to or used as a substitute for the lawful regime of compulsory acquisition. 75.The posture of the 1st respondent, as gleaned from the submissions dated 5th December 2025, was understandably neutral. Through the submissions, counsel reiterated that the NLC filed the reference at the ELC seeking judicial clarity on the validity of the appellants’ title and the legality of the compensation paid to the appellants due to conflicting claims and a report from the National Assembly. Counsel maintained that the NLC was neutral in this appeal and emphasized the role of the Commission to safeguard public funds and ensure that all claims are legally verified by the courts. According to counsel, the reference was initiated based on the power donated to the NLC under section 127 of the Land Act to refer complex questions of ownership and compensation to the ELC. Finally, the 1strespondent, relying on section 116 of the Land Act, stated that were this Court to find that the compensation was made in error, the NLC is entitled to recover the paid amount. 76.Learned Chief State Counsel, Mr. Eredi, filed submissions dated 30th May 2025 on behalf of the 3rd, 4th, 5th, 6th, and 8th respondents in opposition to the appeal. The Chief State Counsel argued that the subdivision of L.R. No. 7879/4 was lawfully approved in 1985, subject to the surrender of the schools’ sites to the Government free of cost. He submitted that the appellants’ agreement to this condition, and the subsequent development of houses, later occupied by the GSU, and the schools, in line with the approved subdivision scheme, constituted de facto surrender and implementation. According to him, the land occupied by the schools, therefore, became public land, making the subsequent compulsory acquisition and payment of Kshs 1.5 billion illegal, as the State could not acquire that which it already owned. 77.Mr. Eredi placed reliance on Mwinyi Hamisi Ali vs. The Attorney General & Another [1997] KECA 210 (KLR) for the proposition that a de facto surrender is valid and binds the owner even in the absence of formal registration. The decision of the Court in Kenya Urban Roads Authority & Another vs. Belgo Holdings Limited [2025] KECA 764 (KLR) was cited for the principle that once land is surrendered for public use, it can never revert to the original proprietor. 78.To counter the assertion that the appellants cancelled the scheme, Mr. Eredi argued that the attempted cancellation was of no consequence because they failed to exhaust the mandatory statutory appeal procedures through the liaison committees. We were therefore urged to dismiss the appeal. 79.The 7th respondent filed submissions dated 5th June 2025 in opposition to the appeal, maintaining that the trial court properly found that the 13.5 acres occupied by the schools had been surrendered by the appellants following the approval of the 1982 subdivision proposal. It was contended that the appellants’ purported 1984 cancellation of the scheme was a "backpedaling" maneuver and that their continued benefit from other parts of the subdivision scheme (such as the GSU housing) estops them from denying the surrender of the school plots. 80.The EACC characterized the compensation claim as a scheme designed to defraud the Government of public funds. The Commission relied on Ngimu Farm Limited vs. Attorney General [2019] KEELC 1099 (KLR) to define surrender as a tool for land planning where an owner yields land to the State in exchange for the benefits of subdivision. Also cited was Maina & 87 Others vs. Kagiri [2014] KECA 880 (KLR) for the equitable principle that a party cannot be allowed to benefit from their own wrongdoing, with counsel arguing that the appellants seek to unjustly enrich themselves after factually surrendering the land decades ago. The 7th respondent, therefore, urged for the affirmation of the de facto surrender. 81.Also opposing the appeal through submissions dated 2nd December 2025 was the 9th respondent. On a preliminary point, the Director of Public Prosecutions submitted that the appeal is procedurally incompetent and incurably defective because the appellants failed to seek and obtain the leave of the Court to appeal from the reference judgment. It was argued that since the original proceedings were an advisory reference under section 127 of the Land Act, the resulting judgment is not an "enforceable" decree but a guidance, and an appeal does not, therefore, lie as of right. Reliance was placed on Boit vs. Kumin; Boit & Another (Interested Parties) [2025] KECA 568 (KLR) for the submission that where the law requires that leave be obtained before an appeal is lodged, it is a jurisdictional prerequisite, and failure to obtain leave renders the appeal a nullity. Also cited were Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act to emphasize that the right of appeal must be explicitly provided for. 82.As regards the merits of the appeal, the 9th respondent supported the trial court's finding that the land was already public property pursuant to the 1982 surrender. 83.This is a first appeal, and it is our duty, in addition to considering the submissions filed by the parties, to analyze, examine, and re-assess the evidence on record and reach our own independent conclusion. In so doing, we must bear in mind that we did not have the benefit of seeing and hearing the witnesses, as did the court of first instance. The mandate of a first appellate court has been reiterated in several decisions of the Court, including Nairobi Bottlers Limited vs. Imbuga [2024] KECA 434 (KLR) where it was held that:“Our mandate in a first appeal as donated by rule 31 of the Court of Appeal Rules, 2022 is to re-appraise the evidence and to draw inferences of fact; to retry the case. That mandate has been the subject of various judicial pronouncements in such cases as Nicholas Njeru vs Attorney General & 8 Others [2013] eKLR, where it was stated: “[In] a first appeal, we are required to re-evaluate the evidence and arrive at our own independent findings and conclusions of the matter.” 84.In complying with the said duty, we identify the issues for our determination in this appeal as:i.Whether this Court has jurisdiction to entertain this appeal;ii.Whether the requirement to surrender land free of cost as a condition for subdivision approval was inconsistent with section 75 of the repealed Constitution;iii.Whether there was a valid and lawful surrender to the Government of the portions of land occupied by the schools;iv.Whether the subsequent compulsory acquisition and part payment of Kshs. 1.5 billion was lawful;v.What reliefs, if any, should the Court grant?vi.Who should bear the costs of the appeal? 85.Before addressing the core issues in this appeal, we must first address the question as to whether we have jurisdiction to entertain the appeal in the first place. Two jurisdictional questions were posed by the 2nd appellant and the 9th respondent. On the first issue, the 2nd appellant contended that the learned Judges of the ELC had no jurisdiction to entertain the reference because the issues raised therein had been adjudicated by courts of coordinate jurisdiction. In particular, counsel submitted that a determination had been made that L.R. No. 7879/4 was private land belonging to the appellants and the ELC was, therefore, functus officio in that regard. 86.In answer to the foregoing issue, we observe that the record does not show that the issue of the ELC being functus officio was raised by the appellants, but there was an averment that other matters had been filed in respect to L.R. No. 7879/4. The closest averment in respect to the issue was the deposition by Mr. Mburu that the appellants had filed a case that was still active as at the time the reference was being heard. That averment alone cannot amount to the defence of functus officio as the appellants clearly conceded at the trial that disputes over the subject matter were still ongoing in the courts. Be that as it may, it is also apparent that the issue was not raised in the submissions and, as expected, was not addressed by the learned Judges. Without evidence that the issue was raised before the court of first instance, and there being no determination of the issue by that court, this issue must fall by the wayside. We will shortly cite authorities barring an appellate court from entertaining issues not raised before the trial court. 87.The second jurisdictional issue was raised by the 9th respondent, who contended that the appeal is defective for failure by the appellants to seek and obtain leave to appeal. It was argued that since the appeal arose from a reference under section 127 of the Land Act, the resulting advisory is not an "enforceable" decree but a guidance, and thus an appeal does not lie as of right. This position was supported by Mr. Odhiambo for the 2nd respondent, who took the radical view that an appeal does not lie at all against an opinion given in a reference since the proceedings are neutral. 88.The appellants responded to the arguments at the plenary with Mr. Macharia for the 1st appellant submitting that a right of appeal lies where there is a decree, as existed in this matter. Mr. Kingara and Mr. Mirie for the 2nd appellant, added that the decision of the ELC took away their client’s right to land, and the right to appeal against the decision is automatic. They additionally submitted that by virtue of section 16 of the Environment and Land Court Act, a right of appeal lies against a decision of the ELC. 89.Our condensed answer to the arguments on the issue is that there is indeed a decree on record which adversely affected the appellants, as it affirmed that they are not entitled to compensation for the portions of land upon which the two schools are constructed, in addition to declaring that the part payment made to them was a loss of public funds. Section 16 of the Environment and Land Court Act provides that appeals shall lie from the ELC to this Court “against any judgement, award, order or decree issued” by the ELC. We do not see how we can deny the appellants' audience in the face of such a clear provision of the law, more so where the decision being appealed against is alleged to have violated their right to property. Furthermore, having not sought to strike out the notice of appeal or appeal within the prescribed period on the ground that no appeal lies as per the provisions of rule 86(a) of the Court’s Rules, we deem that the concerned respondents lost the right to have the appeal struck out, and they cannot therefore seek to strike out the appeal at this late stage. In short, we find the challenge to the jurisdiction of the Court to handle the appeal to be without merit, and it must fail. 90.We now turn to the substantive issues. On issue as to whether the requirement to surrender land free of cost as a condition for subdivision approval was inconsistent with section 75 of the repealed Constitution, the 1st appellant argued that the demand for surrender of private land free of cost violated the right to property. According to the appellants, any expropriation of private land required prompt payment of full compensation. According to counsel, the ELC erred in failing to examine the constitutional soundness of the demand for surrender of the land free of cost as a condition for granting planning approval.Counsel argued that this failure by the ELC led to its erroneous conclusion that “every registered title of land is held subject to the provisions of the prevailing physical planning laws” without appreciation of the fact that the physical planning laws were subject to the provisions of section 75 of the retired Constitution which protected citizens from deprivation of property. 91.Unfortunately, this issue raised by the 1st appellant, though pertinent does not fall for our determination in this appeal for the simple reason that it was not placed before the ELC for determination. We have elsewhere in this judgment reproduced the issues framed for the determination of the trial court by the ELC and nowhere did the issue of the constitutionality of the surrender arise. We have also gone through the affidavit sworn by Mr. Mburu on behalf of the appellants in response to the reference and we find no averment that the surrender was unconstitutional. Finally, the issue is not found in the appellants’ memorandum of appeal. 92.Time without number, the Supreme Court has reiterated the principle that an issue not taken up by the parties before the court below does not fall for determination by the court appealed to. In that regard we will only cite two decisions from the Supreme Court. In Mahamud vs. Mohamad & 3 Others; Muktar (Interested Party) [2019] KESC 70 (KLR), it was held that:“I agree and it follows that, if there is no determination by the Court of Appeal on an issue which is now before us, how then will the correctness of the “decision” by the superior Court be tested? With regard to the exercise of our jurisdiction under Article 163(4)(a) of the Constitution, how would a litigant fault the Court of Appeal on the basis of a particular interpretation or application of the Constitution? It is those lingering questions that lead me to the more persuasive conclusion that, in the absence of a determination by the Court of Appeal on a specific matter, no “appeal” can properly fall before the Supreme Court in exercise of its appellate jurisdiction save where the non- determination is itself the question placed before this Court in which case, the considerations would be completely different. This is because, the appellate jurisdiction of this Court is predicated upon specific findings by the Court of Appeal.” 93.And, in Petition No. E018 of 2023 - Republic vs. Joshua Gichuki Mwangi, though a decision arising from a criminal matter, the Court stressed that:“The record also shows that issue of constitutionality of the sentence was raised for the first time before the Court of Appeal and introduced by way of submissions by counsel representing the Respondent. Having combed through the Record of Appeal and proceedings, we note that the constitutionality of the Respondent’s sentence was also not raised either before the trial court or the High Court. The Respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from addressing the issue on appeal before the Court of Appeal.” 94.We are guided on the applicable principle as enunciated by the Supreme Court in the cited decisions and find that the question as to whether the requirement to surrender land free of cost as a condition for subdivision approval was inconsistent with section 75 of the retired Constitution does not fall for our consideration in this appeal. It also follows that the learned Judges of the ELC cannot be faulted for failing to consider an issue that was, in the first place, not pleaded for their determination. 95.We now turn to the question as to whether there was a valid and lawful surrender to the Government of the portions of land occupied by the schools. At the core of this appeal is the question whether there was actual surrender, and if so, whether such surrender could be valid without a registered instrument under the Government Lands Act (repealed). We are thus faced with two intertwined issues as to whether there was indeed a surrender of the spaces for public amenities and, if so, whether a de facto surrender is valid or simply a legal fiction, perforce invalid. 96.The appellants’ position is that there was no surrender at all because they formally cancelled their proposed subdivision plan when the City Commission of Nairobi/City Council of Nairobi insisted that the plan could only be approved upon the appellants meeting all the conditions attached to the approval. Further, that a surrender is only enforceable once it is registered. 97.In support of their argument that the subdivision scheme said to have been approved in 1983 is non-existent, the appellants relied on the letter dated 5th April 1984 wherein Mr. Mburu communicated to the Director of City Planning that the appellants were cancelling the entire application for subdivision and were no longer interested with the conditional approval. That letter was a response to the letter dated 28th March 1984 from the Director of City Planning, firmly rejecting Mr. Mburu’s claim for compensation for the portions of the land surrendered for public use. 98.The appellants argued that their letter dated 5th April 1994 halted the proposed subdivision scheme. In support of their contention that the process of the approval actually ceased pursuant to their cancellation of the application for subdivision, the appellants relied on the letter dated 17th February 2017 by the Director of Development Management and Regularization of Nairobi City County, where in answer to the appellants’ enquiry as to the status of the 1982 subdivision plan, it was stated that the application was halted and the conditions of approval waived. 99.The respondents opposed to the appeal argued that, despite the purported cancellation of the application by the appellants, subsequent activities show that the appellants implemented the subdivision scheme and approval was indeed granted in 1985. 100.These arguments were placed before the learned Judges, and after considering the evidence adduced, they concluded that:“Firstly, on 4/7/1984, Drive In Estate Developers Limited, the duly appointed agent of the 1st and 2nd Interested Parties, wrote to the Commissioner of Lands and formally confirmed surrender of the public utility plots, including the two plots on which the two schools sit. Drive In Estate Developers Limited did not contest that fact. Based on the surrender, the subdivision scheme was approved by the Central Authority. After the surrender and approval, the two schools were developed on part of L.R. No. 7879/4 and have been on this land for over thirty (30) years without any contestation or objection from the 1st, 2nd or 11th Interested Parties.No explanation was given by the 1st and 2nd Interested Parties as to why they did not pursue compensation from the Government for the land occupied by the two schools from the 1980’s when the schools were established on part of L.R. No. 7879/4. The compensation claim giving rise to this reference only emerged in 2016 as a historical injustice claim by the 1st and 2nd Interested Parties. In our view, the two schools were built on part of L.R. No. 7879/4 after the 1st and 2nd Interested Parties surrendered the plots for public utility. Indeed, there is evidence that the 1st and 2nd Interested Parties made pleas to the Commissioner of Lands to allow them to develop the two schools as private entities because the Nairobi City Council was likely to take inordinately long to develop them.Secondly, there is evidence demonstrating that the subdivision scheme was implemented on the ground through the actual subdivision of the land and erection of permanent developments on L.R. No. 7879/4, and this land is fully settled on. The 1st and 2nd Interested Parties admitted that there had been occupation and development of L.R. No. 7879/4 and that a substantial part of this land was occupied by multi-storied commercial and residential investments. What the 1st and 2nd Interested Parties have failed to finalize is the processing of the titles in respect of the approved subdivision scheme. Among the developments on this land are 196 units which were developed by KPTC on behalf of the 1st and 2nd Interested Parties…Our view on the purported cancellation of the subdivision plan would have been different had the 1st and 2nd Interested Parties demonstrated that the approved subdivision scheme was never implemented on the ground and that the intended developments were not carried out on the ground. To the contrary, there was evidence that the 1st and 2nd Interested Parties implemented the subdivision scheme on the ground and there were physical developments on the ground. Therefore, the planning purposes for which the public amenity plots were set aside and surrendered exist on the ground and the schools which were contemplated were duly developed and are serving that purpose.Thirdly, the 4th Interested Party, through Priscilla N. Wango, confirmed that in April 1985, the 1st and 2nd Interested Parties subdivided L.R. No. 7879/4 as indicated on survey plans F/R No. 179/55-61 approved by the Director of Surveys on 10/4/1985. We have examined the survey plans and confirmed that on F/R No. 179/58, the two plots on which the schools sit were surveyed as L.R. No. 13421/242 measuring 2.741 hectares and L.R. No. 13421/243 measuring 2.737 hectares respectively. The survey plans in respect of the subdivision were approved by the Director of Surveys on 9/5/1985.Fourthly, we have noted that the subdivision scheme giving rise to the establishment of the two schools was processed under Section 24 of the repealed Town Planning Act and Regulation 16 of the Development and Use of Land (Planning) Regulations of 1961 which enjoined the regulatory authorities to seek the surrender of land for public utilities before approving a subdivision scheme.” 101.The question then is whether the appellants have made out a case to persuade us to depart from the conclusions of the learned Judges. The applicable principle is that an appellate court should not lightly depart from the factual conclusions of the trial court. In that regard, it was held by the Court of Appeal for East Africa in Peters vs. Sunday Post Limited [1958] E.A. 424 that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.” 102.We appreciate that the proceedings that gave rise to the instant appeal arose from a matter that proceeded by way of affidavit evidence, and there were no witnesses for the learned ELC Judges to hear and see, but the fact remains that we must have a firm basis for upsetting their findings. In order for an appellate court to reach a different finding from that of a trial court, it must be demonstrated that the decision of the trial court contains errors of law, evidentiary or procedural errors, abuse of discretion, or is not supported by the evidence on record so that it can be said to be manifestly unreasonable. 103.Much as the appellants protested the authenticity of the documents placed before the trial court by the opposing respondents, and in particular the EACC, the picture that emerges is that even after the appellants had written to the Director of City Planning on 5th April 1984 indicating that they were cancelling the application for subdivision, they continued engaging the concerned authorities and other parties as if the letter did not exist. We refer to a few of the correspondence that were exchanged after 5th April 1984 to demonstrate why we have reached this conclusion. 104.On 14th May 1984, Drive-In Estate Developers Limited wrote a letter to Nairobi City Council requesting that they be allotted the plots they had surrendered for public use so that they could develop them. Another letter in the same vein was written on 4th July 1984. On the same day, an even more significant letter was written to the Nairobi City Council, surrendering the public utility plots. These letters not only show that the appellants knew that they had surrendered the plots for public amenities but also that the surrender was unequivocal. 105.Then there was a letter dated 12th July 1984 addressed to the Permanent Secretary, Ministry of Education by the Commissioner of Lands forwarding a plan showing a portion measuring 3.05 hectares for the construction of a secondary school and another one dated 20th February 1985 addressed to one Mr. Bedan G. Mbugua by the appellants telling him that they could not sell him the portion on which the primary school was established because the Commissioner of Lands had already allocated the portion to the City Council of Nairobi. Although Mr. Mburu denied authoring the letter to Mr. Mbugua, the EACC produced a statement recorded from him in which he admitted writing the letter. 106.Also referred to were comments made in March 1985 by the Director of Physical Planning to the Commissioner of Lands as to the positioning of the multipurpose/community centre and the nursery school. There was another letter dated 22nd March 1985, written by the Commissioner of Lands, revising the sub-division plan, and a letter of allotment dated 28th June 1999 by the Commissioner of Lands, granting the Permanent Secretary of the Ministry of Education a site for a secondary school. 107.Apart from the letters, there was the unrebutted averment of Mr. Timothy W. Mwangi, Deputy Director of Physical Planning in the Ministry of Lands and Physical Planning, that the subdivision scheme was revised and recommended for approval by the City Council of Nairobi on 10th January 1985 and approved by the Commissioner of Lands on 22nd March 1985. 108.In view of the evidence placed before the trial court and considering that the letter dated 17th January 2017 addressed to the appellants by Nairobi City County was meant to support the appellants’ claim for compensation, it follows that not much weight can be attached to the contents of this particular letter. 109.A perusal of the trove of correspondence on record and the documents placed before the court of first instance can only lead to the logical conclusion that there was in fact a surrender of the portions that had been earmarked for public utilities. That was the decision reached by the learned Judges, and we have not been persuaded otherwise. 110.In reaching this conclusion, we bear in mind the holding of the Court in Wareham t/a A.F. Wareham & 2 Others vs. Kenya Post Office Savings Bank [2004] eKLR that:“...we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” 111.The appellants’ protest about the documents produced by the respondents was just, but a lamentation for no evidence was adduced to counter the narrative by the respondents, other than the 10th respondent, that the subdivision scheme was approved on condition that spaces for public purposes were to be set aside. The parties involved in the transaction proceeded on this understanding. 112.The question that follows is: What did the de facto surrender amount to? In advancing the position that the surrender was invalid due to the lack of a registered instrument of surrender, the appellants relied on the principle that the register is everything, and title is indefeasible. The answer to this argument is that registration is not the only way to effectuate a surrender. In Mwinyi Hamisi Ali vs. Attorney General & Another [1997] KECA 210 (KLR), the Court held that:The land in question was held under the Registration of Titles Act, Cap 281, Laws of Kenya (the Act). Section 44 of the Act requires that surrender of land leased by the Government to persons be registered in order to terminate the interest of the lessees. Registration of such surrender is evidence of surrender. But section 44 does not envisage a situation whereby lack of such registration would make null and void de facto surrenders. From the evidence before the superior court there can be no doubt that Captain Townsend and his three co-owners had factually surrendered plot No. 334 to the Government and that all of them had in exchange been promised allotment of residential beach plots. Moreover, such lack of registration of surrender doesnot give Mr. Hamisi Ali any title to the suit land. He must claim only as the law allows him to. If, as he says, he was in possession of the suit land, by permission of Captain Townsend and others, he only had mere possession, but no title, or entitlement to title.There is no doubt in our minds that the Commissioner acted unfairly in not considering Mr. Hamisi Ali as an allottee. To that extent the Commissioner may have been callous, or even partisan, but Mr. Hamisi Ali could not, on that basis alone, claim title. Section 44 of the Act could only be invoked in aid by a registered proprietor and not a person who is there by permission of the registered proprietor. The Commissioner had de facto control of plot No. 334 and if he proceeded, as he did, to allot the land to other persons, who were not aware of the claim by Mr. Hamisi Ali their titles cannot be impugned except as provided for in section 24 of the Act which section has no relevance in this suit.It is on these observations that, in our view, Mr. Hamisi Ali's claim to title to the suit land fails. The Commissioner or his agents acted irregularly in allotting the plots when they were not de jure surrendered to the Government but such actions were not illegal, or null and void, as we think the surrenders may have been subsequently regularised and as de facto the Government had a right to the suit land. At least Mr. Hamisi Ali had no better right than the Government.” [Emphasis ours] 113.The Supreme Court in Fanikiwa Limited & 3 Others vs. Sirikwa Squatters Group & 17 Others [2023] KESC 105 (KLR) considered the issue of surrender of land to the Government and held that:“111.The “consensual” nature of a surrender is emphasized in Robert Megarry & William Wade, The Law of Real Property (Sweet & Maxwell; 2012, 8th ed.) page 851 as follows: “surrender is a consensual transaction between the landlord and the tenant, and therefore dependent for its effectiveness on the consent of both parties” [Emphasis added]. Similarly, Martin Dixon, Principles of Land Law, (Cavendish Publishing; 2002, 4th ed.) at page 237 notes that: “a surrender, being a consensual act between landlord and tenant.” [Emphasis added]112.We are persuaded by the foregoing propositions that the “consensual” nature of a surrender is the cardinal ingredient of a surrender of lease. Indeed, this is the essence of the proviso in section 44 of RTA that: “and the endorsement shall be signed by the lessee and the lessor as evidence of the acceptance thereof”. This raises the question as to what was the “consensual arrangement” or “agreement” between Lonrho Agribusiness and the government of Kenya, being the lessee and lessor respectively, that underpinned the contested surrender.” 114.Once a person surrenders land to the Government, there is no turning back. The surrender is usually followed by allotment of the surrendered land to other parties for public interest purposes, be they of a public or private genre. In support of our statement, we advert to the general principles laid down by the Supreme Court in Town Council of Awendo vs. Onyango [2019] KESC 38 (KLR) as follows:“1.Where the Government, pursuant to the relevant constitutional and legal provisions, compulsorily acquires land, such land, shall only be used for the purpose for which it was compulsorily acquired.2.The allocation of compulsorily acquired land, to private individuals or entities, for their private benefit, in total disregard of the public purpose or interest for which it was compulsorily acquired, shall be incapable of conferring title to that land in favour of the allottees.3.A person whose land has been compulsorily acquired in accordance with the relevant constitutional and legal provisions does not retain any reversionary interest in the said land.4.Un-utilized portions of compulsorily acquired land may be used for a different public purpose, or in furtherance of a different public interest, including the allocation of such portions to private individuals or entities, at the market price, in furtherance of such public interest.” 115.We also find the decision of J. G. Kemei J. in Ngimu Farm Limited vs. Attorney General [2019] KEELC 1099 (KLR) highly persuasive. Therein, the learned Judge held that:“Surrender of land either as a whole or a temporary title Land surrender is therefore one of the tools for land planning and development control by the county or national Government to achieve the Constitutional tenets of equitable access to land, sustainable and productive management of land resources transparent and cost effective administration of land stated in para 28 above. It is underpinned by the free will to surrender with the intentions to develop the particular land and not just a mere surrendering. For example, landowners who wish to develop agricultural land to a high-end housing projects. Thus, at the landowners’ initiative it surrenders their land to the Government of Kenya for the conversion of the new land use categories. That explains why the land owner has to apply to the relevant ministry /National Land Commission for approval and thereafter meet the conditions attached to the conversion/subdivision whichever it is.By the act of accepting the surrender to the Government of Kenya of lands for public purpose, the Plaintiff extinguished all rights and interest in the said lands.It is clear that the suit lands were surrendered to the Government of Kenya free of costs and in consideration of approval of subdivision plan. The plots surrendered are to serve public purposes in accordance with the planning requirements of the subdivided land and the eventual uses that the lands will be put in. Unlike compulsory acquisition, there is no reversionary interest that the surrenderee retains in the case of surrender pursuant to subdivision. As stated above the surrender was a condition precedent to the approvals of the subdivision scheme.” 116.In this case, the appellants accepted and enjoyed the benefit of the subdivision approval. Since the approval to subdivide the land for a high-density residential development materialized, the requirement to surrender spaces for public amenities, without any evidence of express revocation, was to be complied with. Indeed, the appellants facilitated the construction of 196 housing units for the GSU in accordance with the approved scheme. The evidence on record further demonstrates a clear de facto surrender. The letter of 4th July 1984 from the appellants’ agent stating "we hereby surrender" and the final approval of the subdivision scheme on 22nd March 1985 confirm the consensual nature of this surrender. The establishment of the schools in 1984 and 1987, the allotment letter of 28th June 1999, and the acceptance of that allotment by one of the schools, all point to the appellants’ ease with the surrender. We observe, as the learned Judges did, that the appellants stood by for over three decades while the schools were built and operated. They cannot now approbate and reprobate by denying the correlative condition of that approval, namely, the surrender of the sites for the schools. Equity will not permit a party to blow hot and cold. As Lord Denning opined in Central London Property Trust Ltd vs. High Trees House Ltd [1947] KB 130, a person who makes a representation and acts upon it cannot later go back on it. 117.In light of the foregoing, we find no difficulty in affirming the finding of the ELC that there was a valid surrender of the portions occupied by the schools. 118.Before departing from this core issue, we will address some arguments by the appellants as to why they hold the view that the surrender did not materialize. First, the appellants and the NLC seemed to suggest that because the Government paid compensation for some of the portions of the appellants’ land acquired for public purposes, then there was no surrender of the portions occupied by the schools. The argument is, in our view, not persuasive. The appeal before us was narrowed down to the question as to whether the sites upon which the public schools are established were surrendered in 1983 in exchange of the approval of the appellants’ development plan. We are not asked to examine the process and legality of the acquisition of the other portions. 119.The second argument by the appellants, and which position was strongly supported by the 10th respondent, was that the subdivision scheme could not have gone through without the consent of the chargee, Continental Credit Finance Limited (In Liquidation). As we have already found, the surrender was a de facto surrender, and we cannot speculate on how the Registrar of Lands would have handled the issue had the appellants surrendered the title for sub-division. 120.We now turn to the remaining issues that we had identified for our determination. These are: the lawfulness of the part payment of Kshs. 1.5 billion; whether the reliefs sought should be granted; and the issue of the costs of the appeal. On the question of the lawfulness of the part payment of the compensation, it follows from our finding that the schools are located on public land by virtue of the surrender, that the NLC had no legal basis upon which it could compulsorily acquire them. The doctrine of eminent domain only applies where the State initiates the taking of private property for public use. The State cannot acquire what it already owns. The purported acquisition was, therefore, without legal foundation. Consequently, the payment of Kshs. 1.5 billion to the appellants was illegal, null, and void. It was money paid under a mistake both in law and fact. As to whether the appellants are entitled to any of the orders sought in their memorandum of appeal, we find, based on our finding that there is no merit in the appeal, that they are not. 121.Finally, as regards the issue of costs, we are of the view that, considering that the opinion of the Environment and Land Court was a result of a reference originated by a constitutional commission, it would be unjust to saddle the appellants with costs for exercising their right of appeal. As such, we order the parties to meet their own costs of the appeal. 122.In the end, upon re-evaluating the evidence and the law, we find the ELC’s opinion to be sound, and we uphold it. Consequently, we find the appeal to be without merit and dismiss it. The parties will meet their own costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.W. KARANJA..............................................JUDGE OF APPEALF. TUIYOTT..............................................JUDGE OF APPEALW. KORIR..............................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR