[2019] KEELC 2851 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC REFERENCE NO. 1 OF 2018

IN THE MATTER OF AN APPLICATION BY THE NATIONAL LAND COMMISSION SEEKING REFERENCE UNDER SECTION 127 OF THE LAND ACT, 2012

AND

IN THE MATTER OF COMPULSORY ACQUISITION OF LAND UNDER PART VIII OF THE LAND ACT

AND

IN THE MATTER OF GAZETTE NOTICE NO 6322 OF 30TH JUNE 2017

AND

IN THE MATTER OF DRIVE IN PRIMARY SCHOOL AND RUARAKA HIGH SCHOOL

BETWEEN

THE NATIONAL LAND COMMISSION..............................................APPLICANT

AND

AFRISON EXPORT IMPORT LIMITED.....................1ST INTERESTED PARTY

HUELANDS LIMITED...................................................2ND INTERESTED PARTY

COUNTY GOVERNMENT OF NAIROBI...................3RD INTERESTED PARTY

DIRECTOR OF SURVEYS............................................4TH INTERESTED PARTY

CHIEF LAND REGISTRAR..........................................5TH INTERESTED PARTY

CABINET SECRETARY - MINISTRY OF

EDUCATION, SCIENCE AND TECHNOLOGY........6TH INTERESTED PARTY

ATTORNEY GENERAL................................................7TH INTERESTED PARTY

ETHICS AND ANTI-CORRUPTION

COMMISSION................................................................8TH INTERESTED PARTY

CABINET SECRETARY - MINISTRY OF

LANDS AND PHYSICAL PLANNING........................9TH INTERESTED PARTY

DIRECTOR OF PUBLIC PROSECUTIONS.............10TH INTERESTED PARTY

PATRICK THOITHI KANYUIRA..............................11TH INTERESTED PARTY

JUDGMENT

Introduction:

1. The Applicant filed this Reference on 2/8/2018 pursuant to Article 162 (2) (b) of the Constitution and Sections 127 and 128 of the Land Act. The Applicant is established under Articles 67 and 248 (2) (b) of the Constitution and was operationalised by the National Land Commission Act. Among other mandates, it is tasked with managing public land on behalf of the national and county governments and overseeing the process of compulsory acquisition of land on behalf of the national and county governments. The Applicant named the 1st to 10th Interested Parties as parties in the Reference. The 11th Interested Party was added later, following the determination of an Application he made to be joined as such.

2. The 1st and 2nd Interested Parties are private limited liability companies and are the registered proprietors of Land Reference Number (L.R. No.) 7879/4, which was the subject of the compulsory acquisition that gave rise to this Reference. The 3rd Interested Party is a county government established under Article 176 of the Constitution and the County Governments Act. It is charged with the control of developments within Nairobi City County. The 4th Interested Party is the principal custodian of all survey records in the country while the 5th Interested Party is the custodian of all land registers in the country. The 6th Interested Party is responsible for the formulation of policies and programmes that enable Kenyans access quality and affordable education and academic research.

3. The 7th Interested Party is established under Article 156 of the Constitution with the mandate of representing the national government in legal proceedings and being the principal legal advisor to the Government. The 8th Interested Party is established under the Ethics and Anti-Corruption Commission Act with the mandate of combating and preventing corruption and economic crime in Kenya through law enforcement, preventive measures, public education and the promotion of standards and practices of integrity and ethics. The 9th Interested Party is the Cabinet Secretary in the Ministry of Lands and Physical Planning. The 10th Interested Party is established under Article 157 of the Constitution with the mandate of prosecuting criminal cases on behalf of the State.

4. Part VIII of the Land Act prescribes the process of compulsory acquisition of land required for public purposes. The Applicant is prompted either by the national or the county government when there is need to acquire land for a public purpose or in the public interest pursuant to Article 40(3) of the Constitution, which sets out the threshold to be met for compulsory acquisition. The Applicant is required to conduct due diligence before acquiring the land after which it publishes a notice of intention to acquire the land in the Kenya Gazette. The notice is to be delivered to the Land Registrar and to every person who appears to have an interest in the land.

5. The Applicant is required to hold an inquiry to determine persons interested in the land in order to determine those that are entitled to compensation. Upon the conclusion of the inquiry, the Applicant is to prepare a written award of compensation for every person found to have a legitimate interest in the land. Thereafter, the Applicant is required to make prompt payment of the compensation to the interested parties and if payment is not accepted, then it is to be made into a special compensation account held by the Applicant. Once payment is made, the Applicant takes possession of the land acquired and the land is from that point deemed to vest in the national or the county government as the case may be.

6. The Applicant compulsorily acquired a part of L.R. No. 7879/4 measuring 5. 727 hectares (ha) or 13. 77 acres for Drive In Primary School and Ruaraka High School from the 1st and 2nd Interested Parties. The Applicant made an award of Kshs. 3,269,040,600/= in compensation to the 1st and 2st Interested Parties. Subsequently, the Applicant paid the sum of Kshs. 1,500,000,000/= to the 1st and 2nd Interested Parties as partial compensation leaving a balance of Kshs. 1,769,040,600/=. The acquisition drew a great deal of public controversy which resulted in various entities inquiring into the matter including the National Assembly’s Departmental Committee on Lands and Senate’s Committee on County Public Accounts. The 8th Interested Party also launched investigations into the compulsory acquisition of the land.

The Facts of the Reference

7. On 30/6/2017, the Applicant caused to be published Gazette Notice Number 6322 announcing its intention to acquire 2. 8255 ha and 2. 7472 ha out of L.R. No. 7879/4 for the benefit of Drive In Primary School and Ruaraka High School. The Applicant avers that it carried out a search at the Lands Office and established that the Title Deed over L.R. No. 7879/4 was registered in the names of the 1st and 2nd Interested Parties and that the same was held on freehold tenure. The Applicant claims that it received letters dated 30/7/2015, 27/10/2015 and 16/8/2016 from Mr. Francis Mburu, a director of the 1st and 2nd Interested Parties, seeking compensation for their land which was compulsorily acquired by the government way back in 1984. The land for which he sought compensation included the portion of L.R. No. 7879/4 on which Ruaraka Secondary and Drive In Primary School are currently situated. The letters complained of historical injustices with the 1st and 2nd interested parties contending that the government invaded their property and proceeded to construct schools, government administrative offices, roads and other support services without affording the 1st and 2nd Interested Parties any compensation.

8. The Applicant claims that it conducted a search and also did a site visit to confirm the veracity of the 1st and 2nd Interested Parties’ claims. It confirmed that indeed Drive In Primary School and Ruaraka High School occupied 13. 77 acres of L.R. No. 7879/4. The Applicant claims that it reviewed the history of the land and established that the 1st and 2nd Interested Parties were registered as owners of L.R. No. 7879/4 in 1981 through an indenture between Joreth Limited and themselves. It also established that Drive In Estate Developers Limited made an application for the subdivision of L.R. No. 7879/4 and were granted conditional approval on 28/3/1984 by the Director of Planning, Nairobi City Council. The 1st and 2nd Interested Parties wrote to the Director of City Planning on 7/2/2017 following up on Drive In Estate Developers Limited’s letter dated 5/4/1984 through which it cancelled the subdivision scheme. The Applicant also stated that the Director of Development Management and Regularisation responded stating that the application for subdivision of L.R. No. 7879/4 was halted and no further processing took place following the letter dated 5/4/1984. It further averred that the Commissioner of Lands wrote to Drive In Estate Developers Limited on 18/12/1984 expressing the government’s intention to acquire L.R. No. 7879/4. The government then went ahead to construct Ruaraka High School on the land in 1984 and Drive In Primary School in 1987.

9. The Applicant claims that after confirming that the land on which the two schools stood was private land, it wrote to the Ministry of Education on 29/8/2016 and 13/9/2016 seeking confirmation on the status of the schools. Through the letters, the Applicant also sought compensation for the owners of the land if the schools were found to be public schools.

10. On 7/2/2017, The Principal Secretary, Ministry of Education, wrote to the Applicant requesting that the land on which Ruaraka High School and Drive In Primary Schools were situated be compulsorily acquired on the Ministry’s behalf. The Applicant requested the Ministry of Education to have the request for compulsory acquisition made by the Cabinet Secretary instead of the Principal Secretary. This was done vide the letter of 17/3/2017.

11. The Applicant claims that it conducted due diligence as required by Sections 107 and 108 of the Land Act and established that the land sought to be acquired was registered in the names of the 1st and 2nd Interested Parties. The Applicant also came upon a judgment delivered by Mabeya J. In Nairobi High Court Civil Case No. 617 of 2012 – Afrison Export Limited and Huelands Limited -vs- Continental Credit Finance Limitedasserting that the 1st and 2nd Interested Parties were the owners of L.R. No. 7879/4. The Applicant claimed that it also put up several gazette notices expressing its intention to acquire the land for various uses including the Outer Ring Road Improvement Project.

12. Further, the Applicant contended that the Ministry of Education vide Gazette Notice no. 6322 dated 30/6/2017 expressed its intention to acquire parts of L.R. No. 7879/4 measuring 2. 8255 ha for Drive In Primary School, 2. 7472 ha for Ruaraka High School and 1. 198 ha for the access to the upgraded Outer Ring Road. The Applicant stated that it conducted an inquiry over the land occupied by the two schools and that the 1st and 2nd Interested Parties submitted a valuation report together with a claim for payment of Kshs.5,600,000,000 in Compensation.

13. The Applicant stated that it did its own valuation and impressed upon the 1st and 2nd Interested Parties that its valuation was what would be used to determine the amount of compensation payable. The Applicant’s valuation valued the land at Kshs. 3,269,040,600/= and the 1st and 2nd Interested Parties had no objection to the amount. Subsequently, on 18/7/2017, The Ministry of Education wrote to the National Treasury requesting it to process the compensation in respect of the land. The sum of Kshs.1,500,000,000/= was paid to the 1st and 2nd Interested Parties leaving a balance of Kshs.1,769,040,600/= outstanding.

14. Following part payment of the compensation, the 8th Interested Party commenced investigations into the acquisition of the land based on the allegation that the compulsory acquisition undertaken by the Applicant was unnecessary and not in the public interest because the land acquired was public land from the outset. The Applicant stated that the National Assembly’s Departmental Committee on Land conducted investigations into the acquisition of the land and prepared a Report dated 5/6/2018. The Committee concluded that the acquisition of the land was illegal and contrary to the Land Act; that it failed to secure the public interest by ensuring that the title to the land acquired was registered in the two schools’ names; and that it was contrary to Article 201 of the Constitution on responsible financial management. The Committee made various recommendations including who should take responsibility for the loss of public funds.

15. The Applicant clarified that there have been previous compulsory acquisitions of portions of L.R. No. 7879/4 by the government through it in respect of 2. 726 ha vide Gazette Notice Number 6055 of 20/8/2014 for the upgrading and improvement of the Outer Ring Road Project; 1. 319 ha vide Gazette Notice Number 5885 of 29/7/2016 for upgrading and improvement of the Outer Ring Road Project and 1. 19 ha vide Gazette Notice Number 6322 of 30/6/2017 for the construction of an access road to Outer Ring road. The Applicant averred that payment of the compensation award had been made in full for these compulsory acquisitions and that the government had taken possession of the land acquired and was only waiting for the final survey to be undertaken for purposes of vesting of the land acquired.

16. Following these developments, the Applicant brought this reference seeking a determination of the issues it couched and which the court has summarised in the following manner:

a. The construction, validity or effect of the Title document over L.R. No. 7879/4. The Applicant refers this issue for consideration so that the court can determine whether the two schools sit on public land or private land;

b. Whether or not the compulsory acquisition of the land occupied by the two schools as undertaken by the Applicant met the constitutional threshold of public purpose. The question shall determine whether there was 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 prays this court to determine whether an award of compensation is payable to an agent or nominee or assignee of the person duly identified as having an interest in the land upon their request. This relates to the validity and or effect of the payment of the partial award of compensation made by the Applicant to the 1st and 2nd Interested Parties through their agent or nominee or assignee known as Whispering Palms Estate Limited;

d. The vesting and formal taking of possession of compulsorily acquired land, that is, at what point should the Applicant take possession of compulsorily acquired land? Is this after payment of the initial award of compensation or upon gazettement of the notice of intention to acquire?

e. Whether a search of a title at the lands registry is conclusive evidence of proprietorship and;

f. What other steps, if any, the Applicant and any other person should undertake to confirm the authenticity of a title before transacting on it.

17. The Applicant urged that it sought a determination of these issues so as to enable it complete the acquisition of the land occupied by the two schools, and to enable it resolve all issues pertaining to the acquisition of the land. It further urged that the determination of this Reference will facilitate the preparation of the title documents in favour of Drive In Primary School and Ruaraka High School.

18. The Reference was supported by the Affidavit of Professor Mohammed A. Swazuri, who was the Chairperson of the Applicant at the time. He relied on the decision in Patrick Musimba -vs- The National Land Commission and 4 others [2016] eKLR which sets out the procedure for compulsory acquisition of private land for public purposes. He attached a copy of the Gazette Notice dated 30/6/2017 expressing the intention to acquire the land occupied by the two schools. He attached a copy of the Postal Search showing that the 1st and 2nd Interested Parties were the registered proprietors of L.R. No. 7879/4 and produced copies of the letters dated 30/7/2015, 27/10/2015 and 17/8/2016 written by Francis Mburu, a director of the 1st and 2nd Interested Parties. He produced copies of the correspondence exchanged between Drive In Estate Developers Limited and the Director of City Planning Nairobi in respect of the application for subdivision of L.R. No. 7879/4 in 1984. He also produced copies of the letters written by the Ministry of Education, a copy of the judgment in Nairobi High Court Civil Case No. 617 of 2012 – Afrison Export Limited and Huelands Limited -vs- Continental Credit Finance Limitedand copies of the valuation reports done by the Applicant and the 1st and 2nd Interested Parties together with a copy of the award made.

The Response by the 1st and 2nd Interested Parties

19. Francis Mburu swore the Replying Affidavit filed on 26/9/2018 in response to the Reference in his capacity as director, shareholder and chairman of the 1st and 2nd Interested Parties. He produced a copy of the Title and Certificate of Postal Search dated 7/8/2018 showing that L.R. No. 7879/4 was held under freehold tenure by the 1st and 2nd Interested Parties. He also exhibited a copy of the letter dated 17/8/2016 which he wrote to the Applicant complaining of historical injustices visited upon the 1st and 2nd Interested Parties by the construction of Ruaraka High School and Drive In Primary School on parts of their land without any compensation being paid to them.

20. Mr. Mburu deponed that the Applicant expressed its intention to acquire 2. 82 and 2. 74 ha out of L.R. No. 7879/4 on behalf of the Ministry of Education in June 2017. The 1st and 2nd Interested Parties accepted the offer of compensation of Kshs.3, 269, 040,600/= out of which the Applicant made a part payment of Kshs.1, 500, 000, 000/=. The 1st and 2nd Interested Parties wrote to the Applicant requesting it to pay the compensation award through the account of their agent called Whispering Palms Estate Limited. At the time of part payment of the award, the 1st and 2nd Interested Parties undertook to indemnify the Applicant against any claims that may be brought against it as a result of the part payment.

21. Mr. Mburu denied the 8th Interested Party’s allegations that the 1st and 2nd Interested Parties had surrendered the portions of the land on which Ruaraka High School and Drive In Primary School sit to the government in 1984. He relied on the advice given to him by his advocate that the process through which land could be surrendered under the repealed Government Lands Act and the repealed Land Planning Act which were the governing laws in 1984 was not adhered to in this case. He stated that the 1st and 2nd Interested Parties purchased L.R. No. 7879/4 measuring about 96 acres from Joreth Limited on 30/12/1981. The 1st and 2nd Interested Parties borrowed the sum of Kshs.21,000,000/= from Continental Credit Finance Limited (in liquidation) and a mortgage was registered against their Title on 29/12/1981. The loan was to facilitate the construction of 500 maisonettes for Kenya Postal and Telecommunications Corporation (KPTC). Out of the projected 500, only 196 units were completed. KPTC entered into a sale agreement with the Office of the President, Department of Provincial Administration and Internal Security for the purchase of the 196 completed maisonettes which were occupied by officers from the General Service Unit (GSU). These 196 units were developed on an unsurveyed plot measuring 7. 5 acres which is part of L.R. No. 7879/4. However, GSU fenced off a total of 37. 5 acres.

22. Mr. Mburu annexed various documents showing the steps undertaken by the government to acquire this portion of land. The judgement by Mabeya J. in Nairobi HCCC No. 617 of 2012 dealt with the issue of the land acquired for the GSU. He annexed copies of the correspondence exchanged between himself and the Office of the President. He averred that L.R. No. 7879/4 is now subdivided into L.R. Nos. 7879/24 and 7879/25 under Deed Plan Numbers 398228 and 398229 respectively and that the 1st and 2nd Interested Parties had executed a conveyance in favour of the Cabinet Secretary to the Treasury of Kenya. He maintained that this subdivision which began in 2013 was the only subdivision carried out on L.R. No.7879/4 and that there was no subdivision done in 1984 as the 8th Interested Party alleged. He stated that sometime in 1989 the two schools were moved from a different piece of land to the portion they currently occupy on L.R. No. 7879/4 in the form of temporary structures. He claimed that he was arrested and detained by GSU officers for alleged trespass on the land during the time when he was agitating against the illegal occupation of the 1st and 2nd Interested Parties’ land. He made reference to a suit for the recovery of land rates filed in 1991 in an effort to explain why the Office of the President paid the rates as the beneficial owner of the land.

23. He listed seven suits filed by the registered owners and the Official Receiver touching on the illegal allocation of the 1st and 2nd Interested Parties’ land to private developers and squatters and maintained that there were no permanent structures erected on the land until 2008. He averred that the 1st and 2nd Interested Parties filed Nairobi High Court Judicial Review Application Number 72 of 2008 – Afrison Import Export Limited and Another -vs- Nairobi City Council and 4 Othersseeking judicial review orders against the City Council of Nairobi, the Commissioner of Police and the Attorney General for illegally allocating the 1st and 2nd Interested Parties’ land to the two schools and other private developers. Parties recorded a consent before the Hon. Lady Justice Koome (as she then was) which settled the matter. One of the terms of the settlement was that the architectural or development plans and the developments on L.R. No. 7879/4 in Drive In Estate, Thika Road, were not authorised and the City Council of Nairobi was to issue enforcement notices against all the unauthorised developments and thereafter demolish the structures. That consent was later set aside.

24. The 1st and 2nd Interested Parties admitted that they made an application to Nairobi City Council through Drive In Estate Developers Limited in September 1982 for the subdivision of L.R. No. 7879/4. The subdivision plans submitted had a proposal for 1. 4 acres to be used for a primary school, 3 acres for the secondary school and provision was made for roads, a nursery school, a shopping centre, a community centre and a foul sewer among other public amenities. The subdivision plan was discussed at the Town Planning Committee Meeting held on 6/9/1982 and recommended for approval by the Commissioner of Lands.

25. Mr. Mburu averred that Drive In Estate Developers Limited received a letter on 22/11/1983 from the Commissioner of Lands forwarding the approved Subdivision Scheme Plan in respect of L.R. No. 7879/4. The approval by the Commissioner of Lands was subject to 19 conditions, which included acceptance of the special conditions in writing. Mr. Mburu contended that the 1st and 2nd Interested Parties did not authorise Drive In Estate Developers Limited to write to the Commissioner of Lands and accept the conditions which he contended were punitive. He stated that the 1st and 2nd Interested Parties resolved that the City Council had to purchase the land that the 1st and 2nd Interested Parties were required to surrender for public amenities. Drive In Estate Developers Limited wrote to the Director of Planning on 14/3/1984 seeking compensation in the sum of Kshs.5,850,000/= for the 7. 5 acres that was to be utilised for the primary school, 11/4 for the nursery school, social facilities as well as the open space.

26. Nairobi City Council responded on 28/3/1984 stating that the Council would not entertain any negotiations on the conditions for the approval of the subdivision while indicating that it was up to Drive In Estate Developers Limited to either accept all the conditions or cancel the subdivision scheme. He urged that Drive In Estate Developers Limited wrote to the Director of City Planning on 5/4/1984 indicating that they had been instructed that the registered owners were not interested in the conditional approval and were therefore cancelling the entire application for subdivision of the land citing the reason that they had been informed that Council officers intended to sell and allocate the open spaces to individuals after the land was surrendered, which was not acceptable to the 1st and 2nd Interested Parties.

27. Mr. Mburu confirmed in his affidavit that there was no further correspondence between the 1st and 2nd Interested Parties or Drive In Estate Developers Limited and the Nairobi City Council or the Commissioner of Lands in relation to the subdivision scheme. He deponed that after the cancellation of the subdivision, Drive In Estate Developers Limited attempted to engage the Commissioner of Lands seeking to erect a private secondary school on a portion of L.R. No. 7879/4. The 1st and 2nd Interested Parties maintained that the process of subdivision of this land did not proceed to the final stages and relied on the provisions of the repealed Government Lands Act and the Land Planning Act on the process of surrender and subdivision of land. He denied that the 1st and 2nd Interested Parties prepared or authorised the preparation of any deed effecting surrender of any portion of L.R. No. 7879/4 for registration and further urged that no partial re-conveyance was ever prepared by Continental Credit Finance Limited discharging the portions of the land purported to have been surrendered by the 1st and 2nd Interested Parties to the Nairobi City Council. The 1st and 2nd Interested Parties further contended that had there been any subdivision registered in respect of L.R. No 7879/4, then it would have lapsed by 1986 pursuant to Section 19 of the Land Planning Act because the developer did not commence construction of the housing units for which the consent had been given.

28. Mr. Mburu admitted that there was a letter asking their developer to remit Kshs.21,510/= to facilitate approval of the subdivision scheme plan but argued that at that point no approval had been given. He maintained that the payment of Kshs. 21,510/= was part of the application process and did not imply approval of the subdivision scheme. Mr. Mburu also challenged some of the letters emanating from Drive In Estate Developers Limited and denied that J. W. Maina, who signed one of the letters worked for Drive In Estate Developers Limited. He also challenged the format of the letters saying it was different from previous correspondence written by this company. He admitted that consent was obtained from Continental Credit Finance Limited for the second mortgage of Kshs. 169,000,000 from KPTC on 11/7/1996.

29. Mr. Mburu stated that the 8th Interested Party’s investigations were set in motion after he fought extortion attempts by one Meshack Dehay Agutu alias Meshack Onyango Dehay whom he believed was being used by political forces to demand from him Kshs.82,000,000/= within 24 hours. He stated that the 8th Interested Party conducted a search and confiscated all the Original documents relating to the acquisition and ownership of L.R. No. 7879/4 and the compensation for the portions occupied by the two schools. He further stated that under the guise of investigations, the 8th Interested Party requested Harith Sheth Advocates, who had custody of the Title Deed to submit the Title Deed for forensic investigations, only to withhold the Title which has not, up to now, been returned to the 1st and 2nd Interested Parties or to their advocates. He maintained that some of the letters relied on by the 8th Interested Party were forged.

The Response of the 3rd Interested Party

30. The 3rd Interested Party filed Grounds of Opposition to the Reference. It associated itself fully with the averments contained in the 8th Interested Party’s Replying Affidavit filed in August 2018 and the 10th Interested Party’s response to the Reference. It stated that the Applicant had failed to establish any case warranting the grant of the orders sought in the Reference.

The Response of the 4th Interested Party

31. Priscila Wango, a surveyor working at the Department of Surveys of Kenya swore the affidavit in response to the Reference on behalf of the 4th Interested Party. She stated that according to the records held by the 4th Interested Party, L.R. No. 7879/4 resulted from the subdivision of L.R. No. 7879 measuring 168 acres. This land was subdivided into 4 portions which included a road. She stated that on 10/4/1985, L.R. No. 7879/4 was subdivided by Mr. James Kamwere as indicated by F/R No. 179/55 – 61. This survey was later reversed by F/R No. 375/53 prepared by Julius K’Obado on 1/11/2011 which resulted into parcel numbers 7879/22 and 7879/23.

32. She stated that in 2011 the Office of the President requested the 4th Respondent to verify the land available for the GSU Headquarters for purposes of its acquisition. Mr. Wilfred Kabue from the Survey Department was nominated to head the team which was to carry out the survey. The team realised that there was a variation between the survey carried out on F/R No. 375/53 which was approved on 3/11/2011 and what was on the ground. This led to the compilation of a new survey for L.R. No. 7879/24 and 7879/25 vide survey plan no. 379/60 which was approved for purposes of survey data only.

33. When the Office of the President through the Ministry of Provincial Administration and Internal Security wrote to the Permanent Secretary, Ministry of Lands, on 7/12/2012 requesting to have a surveyor support the negotiation committee in verifying the number of plots to be acquired for the GSU, the 1st and 2nd Interested Parties were advised to get approvals from the relevant authorities since Deed Plans were required to authenticate the survey that had been approved for data only. She stated that the approvals were provided and the survey was authenticated following which two deed plans were issued on 18/3/2016. Deed plan number 398228 was issued for L.R. No. 7879/24 and deed plan number 398229 was issued for L.R. No. 7879/25.

34. She produced copies of the Survey Plans in respect of the land. Survey Plan Numbers F/R No. 179/56 up to 179/61 show that L.R. No. 7879/4 had been subdivided to create numerous plots and the land reference numbers had changed to 13421/1 up to 13421/527. It would seem from these plans that the land occupied by Ruaraka High School and Drive In Primary School became L.R. Numbers 13421/242 and 13421/243 which are on F/R No. 179/58. These survey plans which were prepared in April 1985, were approved and authenticated in May 1985. L. R. No. 7879/24 measures 15. 137 ha while L.R. No. 7879/25 measures 23. 475 ha. From this survey approved in 2012 but which is not authenticated, L.R. No. 7879/25 appears to be one block yet this is the parcel of land on which the two schools sit.

The Response of the 5th Interested Party

35. C. K. Ng’etich, the Principal Registration Officer in the Ministry of Lands and Physical Planning swore the Replying Affidavit on behalf of the 5th Interested Party. He averred that according to the records they held, L.R. No. 7879/4 measuring 96 acres originally belonged to Joreth Limited and was mortgaged to Continental Credit Finance Limited to secure the sum of Kshs.21 million on 30/12/1981. There was a further mortgage registered against the land in favour of KPTC to secure the sum of Kshs.169,000,000 on 11/7/1986.

36. Mr. Ng’etich averred that the records held by the 5th Interested Party also reflect that the Applicant expressed the intention to compulsorily acquire portions of L.R. No. 7879/4 measuring 96 acres. On 29/8/2014, the Applicant issued a notice of its intention to acquire 2. 726 ha. It expressed the intention to acquire 1. 319 ha vide Gazette Notice Number 5885 of 29/7/2016 and through Gazette Notice Number 6322 of 30/6/2017, it stated the intention to compulsorily acquire 2. 8255 ha, 2. 7472 ha and 1. 198 ha. He produced a copy of the abstract of Title showing these entries as well as a Certificate of Official Search showing the encumbrances registered against the land which include a caveat by the Registrar of Government Lands dated 1/3/2018 claiming an interest under Section 116 (1) (a) of the repealed Government Lands Act. He confirmed that L.R. No. 7879/4 which measures 96 acres was still registered in the names of the 1st and 2nd Interested Parties who held it as tenants in common in equal shares.

The Response of the 6th Interested Party

37. Dr. Belio Kipsang the Principal Secretary, Ministry of Education, State Department of Early Learning and Basic Education swore the affidavit on behalf of the 6th Interested Party in response to the Reference. He confirmed that Ruaraka High School and Drive In Primary School are public schools located in Kasarani Sub-county of Nairobi City County and that they occupy a part of L.R. No. 7879/4 measuring 13. 5364 acres. He stated that the issue of compulsory acquisition came to the attention of the Ministry of Education when it received a letter from the Applicant dated 13/9/2016 addressed to the 6th Interested Party. The letter claimed that a complaint had been received from the 1st and 2nd Interested Parties who were the registered owners of L.R. No. 7879/4, that the government schools had been occupying their land for over 30 years without compensation. He produced a copy of the Applicant’s Chairman’s letter dated 13/9/2016 together with the letter from the 1st and 2nd Interested Parties dated 17/8/2016 complaining about the historical injustice in respect of the two schools’ occupation of their land.

38. He stated that the Applicant had indicated that it did a ground inspection to verify the complaint and confirmed the existence of the two schools on the land. In the exercise of its mandate, the Applicant advised the 6th Interested Party to arrange to compensate the land owners after conducting due process. The 6th Interested Party responded on 7/2/2017 seeking guidance on how to conduct the acquisition of the land. The Applicant wrote to the 6th Interested Party on 16/2/2017 advising him that he was required by Section 107 (1) of the Land Act to submit a formal request to the Applicant for the acquisition of the land. The 6th Interested Party made a formal request on 17/3/2017. The Applicant wrote to the 6th Interested Party on 24/4/2017 informing him that the landowner had cited a survey of the two schools as occupying 13. 5364 acres and advised that prompt compensation was to be made in line with the Land Act. In that letter, the Applicant requested the 6th Interested Party to set aside compensation funds amounting to Kshs. 3,269,040,600/= which included 15% statutory disturbance allowance. The letter stated that the Applicant was duly undertaking the legal process and the Ministry of Education was expected to deposit the funds in the Applicant’s account whose details were given in that letter.

39. To ensure that due process had been followed, the Principal Secretary, Ministry of Education wrote to the Attorney General on 29/6/2017 seeking a legal opinion on the compulsory acquisition and compensation for the land. A team of Education Officers was sent to carry out investigations and assessment of the schools and from their report it emerged that Ruaraka High School had a Letter of Allotment dated 28/6/1999 which showed that the school was allocated the portion of land on which it was situated. They also retrieved a letter dated 3/8/1984 written by the Ministry of Education to the Commissioner of Lands supporting the bid by Drive In Estate Developers Limited to erect a private school on L.R. No. 7879/4. The Certificate of Postal Search dated 8/12/2016 showed that L. R. No 7879/4 measuring approximately 96 acres was held under freehold tenure by the 1st and 2nd Interested Parties.

40. The 6th Interested Party wrote to the Principal Secretary, National Treasury on 30/6/2017 and forwarded the Applicant’s letter dated 24/4/2017 which indicated that the value of the land to be acquired was Kshs. 3,269,040,600/=. The purpose of the letter was to bring to the attention of the Treasury the budgetary implication of the acquisition of the land.

41. The Principal Secretary, Ministry of Education averred that based on the Applicant’s advice that L.R. No. 7879/4 was private land owned by the 1st and 2nd Interested Parties, and having considered the documents forwarded by the 6th Interested Party as well as the Attorney General’s legal opinion of 7/7/2017 which advised the 6th Interested Party that the constitutional requirement for compulsory acquisition for public purposes had been adhered to, the 6th Interested Party formed the opinion that the method proposed by the Applicant was the best way to secure title to the school land.

42. On 13/11/2017, the National Treasury, through its Principal Secretary authorized the 6th Interested Party to spend Kshs. 1,500,000,000/= as compensation in the compulsory acquisition of part of L.R. No. 7879/4 pending the regularisation of the expenditure in the 2017/18 Supplementary II Estimates and indicated that the balance of Kshs 1,769,040,600 would be reviewed in the 2018/19 budget. The 6th Interested Party initiated the process of transferring the funds to the Applicant on 11/12/2017.

43. The 6th Interested Party wrote to the Applicant on 15/1/2018 seeking the documents necessary for it to transfer the funds. The Applicant forwarded a valuation report, its formal request letter, the letter from the Cabinet Secretary instructing the Applicant to acquire the land, a Certificate of Official Search and a copy of the Indenture on 16/1/2018. The 6th Interested Party commenced the process of transferring the funds on receipt of these documents. The 6th Interested Party wrote to the Applicant on 19/1/2018 confirming the release of funds which were credited to the Applicant’s bank account on 22/1/2018. On 21/2/2018, the 6th Interested Party, through his Principal Secretary, had written to the Applicant asking it to acknowledge receipt of the Kshs. 1,500,000,000/=. To that letter, the Principal Secretary annexed copies of the correspondence together with the Applicant’s letter dated 16/1/2018 which forwarded the valuation report showing how the compensation amount was arrived at and a copy of the valuation report itself. In the same letter, the Principal Secretary asked the Applicant to confirm that the interest of the schools in the land acquired had been secured. Earlier in his letter of 19/1/2018, he had advised the Applicant to ensure that it was in possession of the instruments of ownership of the land in accordance with the law and ensure that due diligence was exercised in the process of the compulsory acquisition. The Applicant wrote to the 6th Interested Party on 15/2/2018 confirming that the funds had been disbursed to the landowners.

44. The 6th Interested Party averred that it went ahead with the acquisition of the land convinced that the Applicant, which was the constitutional body mandated to compulsorily acquire land, had in undertaking this process access to or the ability to access the relevant land records and that it would competently, faithfully, truthfully and lawfully interpret and apply the law, rules and regulations. Once the Ministry of Education sought and obtained proper advice it believed that it had taken a prudent course of action with due deference to the Applicant expecting it to secure the schools’ land.

The Response of the 8th Interested Party

45. The 8th Interested Party relied on the Affidavits of Alfred Joel Mwendwa sworn on 15/8/2018 and 27/1/2019 in response to the Reference. Mr. Mwendwa deponed that he was a forensic investigator working for the 8th Interested Party and that he was part of the team which was investigating the allegations giving rise to this Reference. He stated that the 8th Interested Party conducted investigations into the allegation that the Applicant had irregularly compensated the 1st and 2nd Interested Parties in respect of a portion of L.R. No. 7879/4 measuring 13. 5364 acres belonging to Ruaraka High School and Drive In Primary School. He confirmed that the 1st and 2nd Interested Parties were the registered owners of L.R. No. 7879/4 and that they mortgaged this land to Continental Credit Finance Limited.

46. He stated that the 1st and 2nd Interested Parties are related to Drive In Estate Developers Limited and Whispering Palms Limited. He gave the particulars of the directors and shareholders of Whispering Palms Limited which showed that Francis Mburu is a shareholder in all the four companies. He confirmed that Drive In Estate Developers Limited applied to the Nairobi City Council for approval to subdivide L.R. No. 7879/4 and that the application was discussed by the Council. The City Council wrote to the Commissioner of Lands on 22/9/1982 intimating the Council’s approval of the subdivision of L.R. No. 7879/4. The approval was subject to 19 conditions, which included the condition that a part of the land shown on the plan would be surrendered to the Council free of cost and that the site earmarked for the nursery, primary and secondary schools together with the social centres, special purpose plot and the shopping centre would also be surrendered to the Council free of cost. The Commissioner of Lands wrote to the Director of City Planning on 8/10/1982 proposing amendments to the subdivision plan, essentially requiring the widening of the road. The City Council of Nairobi wrote to the Commissioner of Lands on 22/12/1982 clarifying the sizes of the roads and the land surrendered for the roads.

47. He averred that the Commissioner of Lands wrote to the Director of Physical Planning on 3/5/1983 seeking comments on the conditions given by the City Council for the subdivision of L.R. No. 7879/4. The Director of Physical Planning gave his comments on the proposed subdivision in a letter of 23/6/1983. One of his concerns was that the land reserved for the primary school was only 1. 4 ha when it should have been a minimum of 3 ha in view of the government’s intention to introduce the 8-year primary education programme. He also expressed concern over the secondary school being allocated 3 ha only when it should have had an area of 6 ha at the minimum. The Director of Physical Planning recommended that his comments be considered as a basis for amending the subdivision plan before it was approved. The Director of Surveys indicated that he had no objection to the subdivision of L.R. No. 7879/4 vide his letter of 13/6/1983.

48. Mr. Mwendwa further averred that Commissioner of Lands wrote to the Director of City Planning on 30/6/1983 giving comments on the amendments that had to be made to the subdivision plan before he could approve it. On 25/10/1983 the Director of City Planning forwarded the revised subdivision plan to the Director of Physical Planning. The Director of Physical Planning confirmed through his letter of 11/11/1983 that he had examined the revised subdivision plan, found it to be in order and recommended it for final approval. The Commissioner of Lands requested Drive In Estate Developers Limited to remit Kshs.21,510/= for the approval of the subdivision plan. According to the documents exhibited by the 8th Interested Party, Drive In Estate Developers Limited paid this sum on 18/11/1983.

49. The Commissioner of Lands approved the subdivision plan through the letter dated 22/11/1983 subject to 19 conditions set out in the letter. The 10th condition was to the effect that the land reserved for the nursery, primary and secondary schools’ site, social centre, special purposes and shopping centres was to be surrendered to the government free of cost. The 18th condition required the surrender of the freehold tenure in exchange for a 99-year leasehold tenure on peppercorn rent. The company was required to accept the special conditions in writing. The letter also stated that final approval would be given on recommendation by the Director of City Planning.

50. The Nairobi City Council wrote to the Commissioner of Lands in February 1984 and copied the letter to Drive In Estate Developers Limited indicating the sites designated for primary school, nursery school and multipurpose community centre. The letter requested the Commissioner to release all the public open spaces and buffer zones to the Nairobi City Council. Drive In Estate Developers Limited wrote to the Commissioner of Lands on 24/2/1984 clarifying the sites designated for the schools and community centre. The company sought a guarantee from the City Council that it would be able to develop the sites immediately, stating that if the development were to be done later it would serve no useful purpose. The letter went further to state that if the City Council gave the guarantee, Drive In Estate Developers Limited had no objection to surrendering the plots. The company also indicated that if the Council could not give the guarantee, it was prepared to build the services at its own cost. On 29/2/1984, the City Council wrote to the Commissioner of Lands giving the assurance that the plots referred to in the letter were intended for the designated purposes. It also said that it wished to develop the plots immediately upon surrender since there was an acute demand for primary and nursery school places in the city. The City Council wrote to the Commissioner of Lands again on 8/3/1984, seeking allocation of the sites for primary school, nursery schools and community centre on L.R. No. 7879/4.

51. Mr. Mwendwa averred that Drive In Estate Developers Limited wrote to the City Council on 14/3/1984 seeking compensation of Kshs. 5,850,000/= before it could surrender 7. 5 acres for the primary school and 1 ¼ acres for the nursery school and social facilities. The letter stated that on receiving the cheque, the company would surrender the land as requested by the Council. The Council responded on 28/3/1984 stressing the fact that it was up to Drive In Estate Developers Limited to either accept all the conditions which were given for the proposed subdivision, or cancel the subdivision scheme altogether. Following the Council’s letter, Drive In Estate Developers Limited wrote to the Director of City Planning on 5/4/1984 stating that it had been instructed by the registered landowners that they were not interested in the conditional approval and that they had cancelled the entire application for subdivision of their land. The letter stated that the company had learned of the City Council’s intention to sell and allocate the open spaces to individuals after the surrender.

52. Mr. Mwendwa produced a copy of a letter dated 14/5/1984 from Drive In Estate Developers Limited to the Commissioner of Lands seeking to be re-allocated the land designated for open spaces, school and shopping facilities stating that they wished to construct the school and the shopping centre. He also produced a copy of the letter dated 4/7/1984 which Drive In Estate Developers Limited wrote to the Commissioner of Lands surrendering the plots indicated under condition 10 of the letter approving the subdivision.

53. The Commissioner of Lands wrote to the Permanent Secretary, Ministry of Education on 12/7/1984, forwarding a plan showing that a piece of land measuring 3. 05 ha had been reserved for the Ministry for purposes of the construction of a secondary school. The letter stated that the land was a portion of Drive In Estate which was under development and gave the reference as Nairobi Secondary School site, off Thika Road on a portion of L.R. No. 7879/4. The letter was copied to the Ministry of Lands and Settlement, the Nairobi Provincial Commissioner, Hon. Ngumba, the Director of City Planning and the Director of Surveys.

54. The 8th Interested Party also exhibited a letter dated 20/2/1985 said to be from the 1st and 2nd Interested Parties to one Bedan G. Mbugua in relation to the sale of 1. 7 acres of a commercial property which formed part of L.R. No. 7879/4. The letter acknowledged payment of Kshs.1,000,000/= as part payment of the purchase price and confirmed that the 1st and 2nd Interested Parties had surrendered the commercial property. The letter also stated that the Commissioner of Lands could allocate the piece of land that the 1st and 2nd Interested Parties had surrendered to Mr. Bedan Mbugua and that the letter of allotment could be given to him or his nominee. The 1st and 2nd Interested Parties disputed that this letter emanated from their offices.

55. Mr. Mwendwa further averred that the Director of Physical Planning wrote to the Commissioner of Lands on 19/3/1985, regarding the revised subdivision plans for L.R. No. 7879/4 expressing concern on where the multipurpose community centre had been placed and the fact that there was only one entrance to the whole scheme which would pose a challenge if there was a road block at the shopping centre. The Commissioner of Lands forwarded the approved revised subdivision plans to Drive In Estate Developers Limited on 22/3/1985. The approval was subject to the conditions contained in the letter dated 22/11/1983.

56. The 8th Interested Party also attached a copy of the Letter of Allotment issued to Ruaraka High School on 28/6/1999 and evidence that the school paid the sum of Kshs. 3,556/= and wrote a letter accepting the offer which were the conditions given in the Letter of Allotment.

57. Mr. Mwendwa stated that the Official Receiver and Liquidator wrote to the Principal of Ruaraka High School on 21/2/2000 informing the Principal that the school was situated on a piece of land located within Drive In area in Ruaraka whose Title the Official Receiver was holding. The Official Receiver stated that he had been informed that the piece of land was one of those surrendered by Drive In Estate Developers Limited to the city authorities for the establishment of public utilities such as schools. The Official Receiver stated that the school would only be given a Title Deed for its plot once the deed plans for the separate titles were registered, which task the Official Receiver was undertaking.

58. According to Mr. Mwendwa, the Director of Surveys wrote to James Kamwere, a licensed surveyor, on 10/5/1985 advising him that F/R No. 179/55 – 61 representing the survey he had done on the subdivision of L.R. No. 7879/4 had been examined and approved. The letter stated that final approval in respect of L.R. Numbers 13421/243, 242 and 535 had already been given pursuant to the Commissioner of Lands’ letter 108096/32 of 8/3/1985. The letter further stated that open spaces, roads, shopping centres and other special purpose plots had to be surrendered to the government free of cost. It also stated that it would be necessary to compile a plan to back or support the surrender deed plan before the Director of Surveys could accept and sign the deed plans.

59. The 8th Interested Party annexed a copy of the mortgage instrument between the 1st and 2nd Interested Parties and KPTC dated 11/7/1986 in respect of the sum of Kshs.169,000,000/= which was lent to the 1st and 2nd Interested Parties. Of the 500 housing units that the 1st and 2nd Interested Parties were to construct for KPTC, only 196 units were completed. These were transferred by KPTC to the Office of the President which acquired them for the GSU.

60. Mr. Mwendwa stated that Nairobi City Council wrote to the Commissioner of Lands on 3/12/1985 informing him that 80% of the infrastructural services on L.R 7879/4 had been completed to the satisfaction of the City Engineer. The letter requested the Commissioner to give final approval to various sub-plots between numbers 11 and 534 in order to assist the developers to complete the construction of the houses.

61. He went on to state that Drive In Estate Developers Limited wrote to the Commissioner of Lands on 15/2/2006 on the proposal by the Office of the President for the GSU housing scheme. The second paragraph of the letter acknowledged that the Nairobi City Council had approved a subdivision plan for approximately 1400 residential and commercial plots. The letter offered to sell each plot at Kshs.1,500,000/=.

62. The 8th Interested Party retrieved a notification of Approval of Development Permission dated 21/7/2011 making reference to the seeking of permission for subdivision of L.R. No. 7879/4 and stating that the City Council had approved the subdivision of this land into two portions. The 8th Interested Party maintained that this form was forged. Acting on the instructions from the 1st and 2nd Interested Parties, J. K’Obado, a surveyor, prepared a survey plan F/R 375/53 on 19/7/2011 which created L.R. Numbers 7879/24 and 7879/25 based on the subdivision plan done in 2011. The survey plan was approved by the Director of Surveys on 14/11/2011 and deed plan number 338450 dated 29/6/2012 was prepared in relation to L.R. No. 7879/25.

63. The Nairobi City County which is the 3rd Interested Party, wrote to the Director of Surveys on 3/7/2013 seeking details of the subdivision of L.R. No. 7879/4 which had resulted in L.R. Nos. 7879/24 and 25 without the County being informed. The letter stated that the 1st and 2nd Interested Parties had submitted an application to the City County for subdivision of L.R. No. 7879/4[u1] .

64. The Director of Surveys responded on 2/8/2013 stating that he was informed that there had been discussions between the Office of the President and the Official Receiver which resulted in the government purchasing part of L.R No. 7879/4 and the Director of Surveys was instructed to partition the property into two portions in line with the agreement reached. The letter stated that the survey was carried out and survey plan F/R No.379/60 was prepared showing that L.R. No. 7879/4 had been subdivided into two portions being L.R. No. 7879/24 measuring 15. 14 ha and L.R. No. 7879/25 measuring 23. 47 ha.

65. The 8th Interested Party challenged the preparation of F/R No. 375/53 on 19/7/2011 by J. K’Obado as being unprocedural for relying on the authority of Z. M. Ndege on behalf of the Commissioner of Lands citing the reasons that Z. M. Ndege had no authority to issue the approval and that the proper procedure was that the authority should have preceded the preparation of the survey plan. The 8th Interested Party further contended that Mr. Wilfred Muchai Kabue unprocedurally prepared survey plan F/R number 379/60 on L.R. No. 7879/4 which was approved by the Director of Surveys on 13/12/2012 and which was said to have superseded plan number 375/53 prepared by J. K’Obado. The other objection taken up by the 8th Interested Party was that the second survey plan prepared by Mr. Kabue was improper since it was based on the authority of Mr. Z. N. Ndege on behalf of the Commissioner of Lands given in the letter dated 16/9/2011, which authority had already been relied and acted upon by Mr. J. K’Obado. The 8th Interested Party contended that the authority from the Commissioner of Lands was intended for a specific survey and it could not be used for two different surveys. Further, it argued that the survey plan prepared by Mr. Kabue was not based on any subdivision scheme and it did not correspond with the subdivision scheme prepared in 2011.

66. The 8th Interested Party produced a copy of the 11th Interested Party’s letter dated 28/8/2013 addressed to the Director of City Planning Department which stated that the Official Receiver had accepted a loan repayment proposal from the registered owners of L.R. No. 7879/4 and that it had no objection to the subdivision of the property which had already been done or was in the process of being done. The 8th Interested Party also produced a copy of Notification of Approval of Development Permission given to David N. Gichohi by the 3rd Interested Party which is dated 18/9/2013. It relates to permission to subdivide L.R. No. 7879/4.

67. The 11th Interested Party wrote to the 3rd Interested Party on 2/10/2013 stating that based on the professional undertaking to pay the monies due to Continental Credit Finance Limited given by the advocates of the registered owners, the Official Receiver executed a re-conveyance and forwarded it together with the deed plan to the advocates. The 11th Interested Party wrote to the 3rd Interested Party on 14/10/2013 urging it to fast track the grant of final approval of the subdivision scheme while stating that the government was in the process of purchasing the portion of land occupied by GSU.

68. The 3rd Interested Party wrote to the Applicant on 15/11/2013 in respect of the final approval of the subdivision scheme over L.R. No. 7879/4. The letter stated that the 3rd Interested Party had approved the subdivision scheme at its technical meeting held on 2/8/2013. The letter stated that the developer had complied with the conditions imposed to the satisfaction of the 3rd Interested Party. The Applicant wrote to D. N. Gichohi on 27/11/2013 granting final approval for the subdivision of L.R. No 7879/4. The 11th Interested Party wrote to the 3rd Interested Party on 2/12/2013 forwarding payment and seeking the certificate of subdivision for L.R. No. 7879/4. The 3rd Interested Party issued a subdivision certificate in respect of this land on 5/12/2013. An Officer from the 4th Interested Party’s office wrote to the Applicant on 29/4/2014 indicating that F/R no. 379/60 representing the survey in relation to the subdivision of L.R. No. 7879/24 and 7879/25 had been approved. The 11th Interested Party wrote to the 3rd Interested Party on 27/6/2014 confirming that it had reached an agreement with the registered owners to have L.R. No. 7879/4 subdivided to enable the owners sell and pay monies owing to Continental Credit Finance Limited.

69. The 8th Interested Party contended that the grant of approval for the subdivision of L.R. No. 7879/4 given by the 3rd Interested Party was irregular since at the time there were outstanding land rates running into millions of shillings. As at 5/7/2018, the outstanding rates stood at Kshs. 3,933,905,092/=. The 8th Interested Party maintained that the subdivision schemes done in 2011 and 2013 were irregular and void.

70. The 3rd Interested Party wrote to the 1st Interested Party on 17/2/2017 informing it that subsequent to the letter of 5/4/1984, the development application for subdivision of L.R. No. 7879/4 was halted and no further processing was done. The letter stated that the conditions imposed as prerequisites for the approval were waived by the fact that the land remained intact, just as it was when the application for subdivision was made.

71. The 1st and 2nd Interested Parties wrote to the Applicant on 17/8/2016 complaining about the historical injustice caused by the partial occupation of its private property L.R. No. 7879/4 by the Ministries of Education and Interior Security, that is, Ruaraka Secondary School and the Chief’s Camp respectively. The 1st and 2nd Interested Parties’ Director stated that over time, persons unknown to him had invaded L.R. No. 7879/4 and settled on it and that schools, government administrative offices, roads and other support services had been constructed on the land without the owners’ consent. The letter requested compensation for the land taken up for public utilities, being 13. 5364 acres occupied by Ruaraka Secondary School and 4 acres taken up by the Chief’s Camp.

72. Following receipt of this letter, the Applicant wrote to the 6th Interested Party seeking confirmation of the status of the land occupied by Ruaraka High School and Drive In Primary School and asking it to make arrangements to compensate the landowners. A team was constituted which prepared a report on Quality Assurance and Standards Investigation on Ruaraka High School. The Report was forwarded to the Principal Secretary, Ministry of Education on 3/2/2017. One of the recommendations made in the report was that the Official Receiver and Liquidator should release the documents relating to the proprietorship of the school land and that the Cabinet Secretary, Ministry of Education should liaise with the Applicant to facilitate processing of the title deeds for the public schools. The report recommended that the processing of the schools’ title documents be hastened so as to protect the land from encroachment. Another significant recommendation made by the team was to the effect that a portion of the land having been surrendered for public utility, the 1st and 2nd Interested Parties had no basis for seeking compensation for the land.

73. The 8th Interested Party contended that contrary to these recommendations, the Principal Secretary, Ministry of Education wrote to the Applicant on 7/2/2017 acknowledging that Ruaraka High School and Drive In Primary School occupied private land which needed to be acquired for public interest. The letter sought the guidance of the Applicant on the acquisition process. The Applicant responded on 16/2/2017 and sought to have the request for acquisition of land made by the 6th Interested Party to enable it acquire the land on the Ministry’s behalf. The 6th Interested Party made the request for the acquisition of the land through a letter dated 17/3/2017 addressed to the Applicant.

74. Through its letter of 24/4/2017, the Applicant requested the 6th Interested Party to set aside compensation funds amounting to Kshs. 3,269,040,600/= and deposit the amount in the Applicant’s account. The 8th Interested Party contended that the Applicant arrived at this amount before a valuation of the land occupied by the two schools was undertaken. The valuation was done on 14/6/2017, yet the Applicant requested the 6th Interested Party to set aside and deposit the sum of Kshs. 3,269,040,600/= in its account on 24/4/2017.

75. The 8th Interested Party challenged the process through which the compensation award was paid. It relied on the Recurrent Exchequer Issue Notification by the National Treasury dated 11/1/2018 which showed that a sum of Kshs. 5,350,400,000/= had been placed in the account for the State Department for Basic Education held in the Central Bank of Kenya. Out of this amount, Kshs.1,500,000,000 was for compensation for the school land carved out of 7879/4. The 8th Interested Party contended that the Ministry of Education had not budgeted for this and that Parliament did not approve the supplementary II estimates for the balance of the compensation.

76. Further, the 8th Interested Party contended that the instructions given by the 1st and 2nd Interested Parties to the Applicant to pay the compensation award to Whispering Palms Limited was intended to circumvent a court order issued on 13/12/2016 in Nairobi ELC Petition Number 1488 of 2016; Okiya Omtatah Okoiti and another -vs- Afrison Export Import Limited and others which prohibited the Applicant and other government bodies from making further payments to the 1st and 2nd Interested Parties in respect of L.R. No. 7879/4.

77. The 8th Interested Party contended that the surrender of a portion of L.R. No. 7879/4 by the 1st and 2nd Interested Parties free of cost was not a sign of good will and corporate responsibility but a requirement under Regulation 11 (2) of the Development and Use of Land (Planning) Regulations of 1961 promulgated under the Land Planning Act (now repealed) for approval of the subdivision scheme.

78. Based on the history of the land, the 8th Interested Party surmised that there was no urgency necessitating the haste with which the transaction was undertaken leading to partial payment of compensation for the compulsory acquisition of the land on which the schools sit. The 8th Interested Party believed that there was a conspiracy between the 1st and 2nd interested parties on the one hand; and officers from the Nairobi City County, the Survey of Kenya, the Ministry of Education and the Applicant to conceal the fact that the 1st and 2nd Interested Parties had surrendered a portion of L.R. No. 7879/4 to the Government of Kenya as a condition for the approval of their subdivision plan in 1983. The 8th Interested Party faulted the Applicant for failing to conduct due diligence to satisfy itself that the request for compulsory acquisition of the land occupied by the two schools met the constitutional threshold prescribed by Article 40 (3) of the Constitution and failing to establish that the process leading to the acquisition was proper. The 8th Interested Party faulted the Applicant for making the award without the surrender of the title to the Applicant and the discharge of the charge registered against the title. It further contended that the Applicant failed to conduct a public inquiry of persons interested in the acquisition of the land contrary to Section 112 of the Land Act.

79. The 8th Interested Party urged the court to order the restitution of Kshs. 1,500,000,000/= and interest at commercial rates from the date of payment by the Applicant to Whispering Palms Limited if the court found that the two schools sit on public land and that there was loss of public funds as a result of the part payment of the compensation award.

80. The 8th Interested Party’s Further Affidavit sworn on 22/1/2019, also sworn by Mr. Mwendwa gave further details on the survey of L.R. No. 7879/4 undertaken by M/s Kamwere & Associates. He stated that M/s Kamwere & Associates, who had been instructed by the 1st and 2nd Interested Parties prepared deed plans based on the survey of L.R. No. 7879/4. The 8th Interested Party averred that the preparation of the 506 deed plans, out of which 323 deed plans were submitted to Continental Credit Finance Limited, confirmed that a survey was carried out in 1985 which was based on the subdivision scheme approved in 1983. The 8th Interested Party maintained that it was entirely upon the 1st and 2nd Interested Parties as the registered owners of the land to complete the process of subdivision by preparing the deed of surrender and lodging it together with the mother title at the lands registry for registration and processing of the resultant titles. It further argued that the 1st and 2nd Interested Parties have to date not lodged the mother title in respect of L.R. No. 7879/4 for subdivision and creation of the titles in respect of the 196 maisonettes.

81. Mr. Mwendwa deponed that the subdivision plan of 1983 was actualised and implemented as can be discerned from the developments on the land including the 196 maisonettes, the schools, the community centre, sewer lines and access roads which were included in that Plan. The 8th Interested Party also contended that the 1st and 2nd Interested Parties have received colossal amounts of money in compensation from the Office of the President for the 196 maisonettes.

82. The 8th Interested Party expressed concern about the letter dated 5/4/1984 through which the 1st and 2nd Interested Parties claim to have cancelled the subdivision based on the fact that there was no response from any of the institutions mentioned in that letter. The 8th Interested Party contended that under Section 33 of the Survey Act, the Director of Surveys should have written cancelling the subdivision plan and annulling the resultant surveys and deed plans. The Director of Surveys authenticated and signed the survey plans and deed plans prepared by M/s Kamwere & Associates which was prepared on the basis of the subdivision scheme plan of 1983.

83. In addition, the 8th Interested Party argued that the 1st and 2nd Interested Parties could have challenged the conditions set out in the approval by way of an appeal to the Minister pursuant to Section 21 of the Land Planning Act. If dissatisfied with the Minister’s decision, an applicant had the right of a second appeal to the High Court in instances where the Applicant was aggrieved by the size of the land required to be surrendered for public purposes under Regulation 11(2) of The Development and Use of Land (Planning) Regulations of 1961.

84. The 8th Interested Party stated that the documents it annexed to its Affidavit were retrieved from the correspondence file at the Ministry of Lands and the City Council during its investigation, meaning these documents could have been taken into consideration by the Applicant.

The Response of the 9th Interested Party

85. The 9th Interested Party relied on the Affidavits of Timothy W. Mwangi sworn on 26/10/2018 and Roberts J. Simiyu sworn on 18/1/2019. Timothy Mwangi deponed that prior to the enactment of the Physical Planning Act in 1996, physical planning in urban and rural areas was governed by the repealed Land Planning Act and the repealed Town Planning Act. He stated that under 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 purposes of access to any subdivisions and public purposes. Public purpose denoted non-profit making purposes which included educational, medical, religious, public open spaces, car parks, government and local government purposes. He urged that once land was surrendered to the government free of cost for public purposes, it ceased being private land under Section 16 (2) (iii) of the Land Planning Act and was to be administered as government land. He reiterated the averments enumerated by the 8th Interested Party touching on the subdivision plan over L.R. No. 7879/4. He concluded that the approved subdivision plan over L.R. No. 7879/4 and the conditions imposed for that subdivision were enforced to the letter. He stated that according to their records, there was no action taken to alter the status of the approved subdivision plan. He produced copies of the subdivision plan dated 6/9/1982 showing the land surrendered for public purposes. He also annexed the site plan for L.R. No. 7879/4 showing the land reserved for the primary school, the secondary school, the shopping centre, the multipurpose community centre, the nursery school and the open spaces. The plan also has other subdivisions creating small plots with numbers running from 10 to 584.

86. Roberts J. Simiyu set out facts in his Affidavit which reiterated what the other Interested Parties averred. He stated that on 12/7/1984, the Commissioner of Lands issued a letter of reservation to the Ministry of Education outlining that a piece of land measuring 3. 05 ha had been reserved for the Ministry for purposes of a secondary school. The Commissioner of Lands annexed to that letter of reservation a copy of the letter dated 4/7/1984 through which Drive In Estate Developers Limited surrendered the plots to the Commissioner of Lands pursuant to condition 10 of the letter approving the subdivision of L.R No.7879/4. Mr. Simiyu attached a copy of the letter of allotment dated 26/6/1999 issued by the Commissioner of Lands to the Permanent Secretary, Ministry of Education in respect of an unsurveyed secondary school site off Thika Road on a portion of L.R. No. 7879/4 together with the letter from Ruaraka High School accepting the offer. He attached copies of the cheque paid on account of the stand premium and the official receipt issued by the Ministry of Lands for the payment. He also attached a copy of the letter from the Official Receiver dated 21/2/2000 confirming that the process of issuing deed plans for purposes of separate titles being registered was being undertaken.

The Response of the 10th Interested Party

87. The 10th Interested Party responded to the reference vide the Affidavit of Faith Mwila sworn on 30/10/2018. She deponed that the Applicant had moved the court after inordinate delay and was seeking interpretation of an issue which it had already determined with finality and made payment of the compensation award. She contended that the Reference should have been instituted before the acquisition of the land on which the two schools sit before payment was made. She was of the view that the Reference was an academic exercise and that it seeks to cleanse the questionable actions of the Applicant which are being investigated by the 8th Interested Party. She averred that the Applicant failed to demonstrate that it published a second gazette notice as required by Section 112 (1) of the Land Act notifying and requiring all interested persons in the land in question to attend a public inquiry to ascertain their claims or interests in it. She further stated that the Applicant paid out monies to the 1st and 2nd Interested Parties without securing the public interest and without ascertaining if the land in question was public land.

The Response of the 11th Interested Party

88. Patrick Thoithi Kanyuira swore a Replying Affidavit in response to the Applicant’s Reference. He produced a copy of the Certificate of Postal Search dated 7/8/2018 showing the encumbrances registered against L.R. No. 7879/4 which included the mortgage to Continental Credit Finance, Limited, the second mortgage to KPTC and the caveat by the Registrar of Government Lands dated 1/3/2018. He deponed that the Official Receiver took over the affairs of Continental Credit Finance Limited upon being appointed liquidator and that this institution holds an undischarged mortgage over L.R. No. 7879/4. He set out facts relating to the history of the land in dispute along the same lines as the other Interested Parties. He also alluded to the negotiations and compensation relating to the land occupied by the GSU including an inter-Ministerial task force which was formed to look into the acquisition of the land occupied by the GSU. The task force recommended in its report submitted to Parliament that the government should acquire the land occupied by the GSU.

89. He also made reference to the issue of compensation being litigated on and how the matter was finally settled by consent of the parties on the quantum of compensation payable in respect of the GSU land. He stated that the 1st and 2nd Interested Parties gave an undertaking to pay the outstanding loan and interest accrued .He stated further that it was this undertaking which was the basis for the Official Receiver consenting to the subdivision of the land into two parcels known as L.R. No. 7879/24 and L.R. No. 7879/25 in 2013. He averred that the 1st and 2nd Interested Parties had executed a conveyance of the portion occupied by the GSU to the Cabinet Secretary of the Treasury of the Republic of Kenya. He denied being aware of any subdivision of the land in 1983 while urging that the process of subdivision and surrender of an interest in land could only have been conveyed by an instrument of surrender duly registered pursuant to Sections 99 and 100 of the Government Land Act. He denied that there had been any surrender.

SUBMISSIONS BY THE PARTIES

The Applicant’s Submissions

90. In its submissions on the questions put to the Court for determination, the Applicant relied on Articles 62, 63 and 64 of the Constitution which categorise land as public, community and private land respectively. The Applicant compared the Kenyan Constitution to that of the Republic of Ghana, which has similar provisions.

91. The Applicant also relied on Article 67 of the Constitution which created the Applicant and which led to the enactment of the National Land Commission Act which spells out the functions of the Applicant and how it operates and Sections 107-126 which provide for compulsory acquisition. The Applicant submitted that it published Gazette Notice Number 6322 which started the process of acquisition of part of LR No.7879/4.

92. The Applicant submitted that the procedure of compulsory acquisition was summarised in Petition No. 613 of 2014 Patrick Musimba -vs- National Land Commission & 4 Others [2016] eKLR. The Applicant submitted that in compliance with provisions relating to compulsory acquisition it also undertook due diligence before publishing the notice of acquisition in the Kenya Gazette. The Applicant’s officials visited the suit property and carried out a search which revealed the suit land was freehold. It also went into the history of the land in issue and found out that it was transferred from Joreth Limited to the 1st and 2nd Interested Parties in December, 1981.

93. The Applicant submitted that under the Kenyan land tenure which follows the Torrens System of Registration, a search is a guarantee as to the proprietorship details of the land. The Applicant referred to the Ghanian Land Registration Act-1986 [PNDCL 152] which has provisions similar to our laws as regards searches.

94. The Applicant submitted that it dug through the history of the suit land and in the process found that Justice Mabeya had in Nairobi HCCC No. 617 of 2012 Afrison Export Limited & Huelands Limited -vs- Contintental Credit Finance Ltd (in liquidation) & 2 Others asserted that the 1st and 2nd Interested Parties were the owners of LR No. 7879/4. The Applicant having confirmed that the land was private, it wrote to the Ministry of Education which set off the process of acquisition.

95. On whether the acquisition of the suit property met the public purpose, the Applicant submitted that Section 2 of the Land Act defines public purpose. In this regard, the Applicant relied on the case of Compar Investments Limited -vs- National Land Commission & 3 Others [2016] eKLR. The Applicant therefore argued that as Ruaraka High School and Drive In Primary School are public schools, the acquisition of the suit property where they are situated met the threshold of public purpose.

96. The Applicant argued that the value of compensation which was Kshs. 3,269,040,600/= was lower compared to Kshs.5,900,000,000/= which the 1st and 2nd Interested Parties sought. The Applicant submitted that the compensation amount was arrived at by comparing similar parcels which had been acquired in the area. The Applicant further argued that the schools being located within a prime area, the compensation awarded was the best bargain in line with Section 111 of the Land Act.

97. As to the question to whom compensation is to be paid, the Applicant submitted that Section 115 of the Land Act is silent as to whether compensation can be paid to an agent, nominee or assignee. The Applicant argued that the Section does not exclude agents duly nominated by persons to whom compensation is due from receiving compensation. The Applicant therefore argued that there was nothing wrong in the 1st and 2nd Interested Parties nominating Whispering Palms Estate Limited to receive compensation on their behalf.

98. On the issue of taking possession, the Applicant submitted that Section 120 of the Land Act provides the manner in which possession should be taken. The Applicant submitted that possession is two fold; it is both physical and proprietary. The Applicant submitted that it could not take physical possession of the acquired property as there was a balance which was to be paid. On the issue of taking possession of title documents, the Applicants also submitted that this could only take place upon payment of the full compensation.

99. On the issue as to whether a search is conclusive evidence of proprietorship, the Applicant submitted that a search is conclusive evidence of ownership. In this regard the Applicant relied on Professor Tom Ojienda’s book,“Principles of Conveyancing in Kenya, A Practical Approach”in which the author discusses three principles i.e the Mirror Principle, the Curtain Principle and the Insurance Principle. The Applicant argued that under the Registration Scheme in Kenya, the Government guarantees title and that whoever suffers loss as a result of reliance on title, can be indemnified. The Applicant also relied on the book authored by Theodore Ruoff and Robert Roper titled “Ruoff and Roper on the Law of Registered Conveyancing.” The authors discuss the importance of a search and its finality.

100. The Applicant submitted that besides the search at the Lands Registry, it conducted a search at the survey of Kenya and visited the offices of the Nairobi City County. The Applicant also considered the history of the land. In conclusion the Applicant submitted that it carried out its mandate in a professional way and that the damaging report by the National Assembly Departmental Committee on Lands violated the Applicant’s Constitutional independence guaranteed under Article 249 (2)(a) and (b) of the Constitution. The Applicant further submitted that the report by the National Assembly Departmental Committee on Lands was rejected by the Senate.

The 1st and 2nd Interested Parties’ Submissions

101. The 1st and 2nd Interested Parties used the analogy of Naboth’s vineyard in the Bible in which Jezebel used her position and influence to unjustly acquire Naboth’s vineyard for King Ahab in urging the court to find that falsehoods and alarmist statements were made in this Reference.

102. They submitted that being the registered owners of L.R. No. 7879/4, their title was indefeasible. They urged that the practice of land law in Kenya is informed by the Torrens system derived from Sir Robert Torrens. They relied on the case of Charles Kiraithe Kiarie& 2 Others -vs- Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others (2013) eKLR in urging that the Torrens system emphasises the accuracy of the land register which must mirror all registrable interests. Further, that the Government which keeps the land records guarantees indefeasibility of all rights and interests shown on the land register.

103. The 1st and 2nd Interested Parties submitted that the repealed Land Planning Act and Town Planning Act applied to their proposed subdivision scheme.

104. They urged the court to find that the Government Lands Act applied to the land in dispute. They submitted that the effect of Sections 99, 100 and 101 of the Government Lands Act barred the 8th Interested Party from relying on the evidence it produced before court in relation to the correspondence that emanated from its agent, Drive In Estate Developers Limited on the issue of the surrender of part of their land for public purposes including the land on which the two schools sit.

105. They contended that the subdivision of L.R. No. 7879/4 was not completed in 1984 and that the survey plans were not registered and authenticated hence the surrender could not have had any legal effect pursuant to Section 99 of the Government Lands Act which required transactions entered into under that part which conferred or extinguished any rights to be registered.

106. The 1st and 2nd Interested Parties maintained in their submissions that L.R. No. 7879/4 was never subdivided prior to 2013. They submitted that the land was subdivided to create L.R. No. 7879/24 and L.R. No. 7879/25 in 2013 and that further, they would, in the fullness of time transfer L.R. No. 7879/24 to the Government of Kenya for the benefit of the GSU.

107. They further contended that even though Drive In Estate Developers Limited was acting as their agent, there existed no power of attorney between Drive In Estate Developers Limited and themselves. Further, that they did not draw or execute any instrument to surrender proprietary rights over any portion of L.R. No. 7879/4 and that Drive In Estate Developers Limited was only their agent but did not have the legal capacity to surrender a portion of L.R. No. 7879/4.

108. The 1st and 2nd Interested Parties submitted that no final approval of the subdivision plans was given urging that what was given was provisional approval. They argued that final approval would have been granted upon the recommendation of the Director of City Planning. They also urged that the City Council would only have issued a subdivision certificate based on a request from the landowners and a final approval given by the Commissioner of Lands and that there was no evidence of any instrument of consent. They contended that the provisional consent given in 1983 lapsed within 12 months pursuant to Regulation 19 of Development and Use of Land (Planning) Regulations made under the Land Planning Act.

109. In their submissions, the 1st and 2nd Interested Parties admitted that there has been occupation and development of L.R. No. 7879/4 and that a substantial part of this land is occupied by multi-storied commercial and residential investments serviced through public sector investments. They blamed the 3rd Interested Party for ordaining the invasion and occupation of their land and faulted it for collecting revenue from the activities on their land. The 1st and 2nd Interested Parties also took issue with the letter of allotment issued to Ruaraka High School over the land the school occupies in 1999 arguing that the letter came years after the school had been in occupation of the land.

The 3rd Interested Party’s Submissions

110. The 3rd Interested Party submitted that the Applicant had already taken a position in relation to the validity of the title document without the assistance of the Court. It contended that this Reference was testimony that the Applicant did not do due diligence and did not follow the laid down procedure in determining the legal position it took. The 3rd Interested Party submitted that the jurisdiction of this Court should have been invoked before the Applicant made the impugned decisions. It argued that this Court should not be used as a bleaching agent to clean and clear the stained and blemished actions of the Applicant.

111. The 3rd Interested Party further submitted that the Applicant failed to follow the procedure set out in Part VIII of the Land Act, specifically the requirement relating to the publishing of a notice of public inquiry and the holding of a public inquiry, an omission which had denied the two schools the opportunity to be heard in relation to the compulsory acquisition of the land they occupy.

The 4th, 5th, 6th, 7th and 9th Interested Parties’ Submissions

112. In the Attorney General’s submissions made on behalf of the 4th, 5th, 6th, 7th and 9th Interested Parties, the Attorney General submitted that the only issue for determination was whether or not the purported compulsory acquisition of the land where the two public schools lie by the Applicant, at the behest of the 1st and 2nd Interested Parties, was lawful. The Attorney General submitted that once this issue was resolved, the other questions in the Reference would fall in place.

113. The Attorney General submitted that the 1st and 2nd Interested Parties started their claim for compensation based on historical injustice. Under Section 15 of the National Land Commission Act, the Applicant was mandated to investigate claims of historical land injustice. It was the Attorney General’s submission that the Applicant did not conduct any inquiry as provided for under Section 15 of the National Land Commission Act.

114. The Attorney General further submitted that the Applicant did not bother to investigate the history of the land. The Attorney General submitted that had the Applicant conducted an investigation; it would have discovered that the land in issue had been surrendered for a public purpose and that it could not therefore be the subject of an inquiry on the basis of historical injustice.

115. The Attorney General submitted that the 1st and 2nd Interested Parties having accepted the conditions stipulated in the letter approving the subdivision plan, they could not turn round and claim that there was no surrender of the land. The Attorney General therefore submitted that as the land had been surrendered, it could not to be the subject of compulsory acquisition.

116. The Attorney General submitted that the search which the Applicant relied on was defective in the sense that it did not disclose that the title had encumbrances and that there had been previous compulsory acquisitions over portions of the land in question.

The 8th Interested Party’s Submissions

117. The 8th Interested Party submitted that the 1st and 2nd Interested Parties presented a subdivision plan in 1982 and the plan was approved with specific conditions in 1983. It added that the plan was subsequently amended in 1985 and the amendments were approved with the same conditions. It further submitted that the subdivision plan was subsequently implemented through authenticated survey and deed plans, and actual developments on the ground which included privately owned developments, GSU housing units, schools, access roads and other public amenities which mirror the approved subdivision scheme of 1983 as amended in 1985. The 8th Interested Party argued that the portion of L.R. No. 7879/4 on which Ruaraka High School and Drive In Primary School sit is public land that could not have been the subject of any compulsory acquisition by the government because the same had been surrendered to the government free of cost as a condition for the approval of the subdivision plan approved in 1983 and amended in 1985.

118. The 8th Interested Party added that the impugned compulsory acquisition failed to adhere to the mandatory and elaborate procedure prescribed in Part VIII of the Land Act in that the Applicant did not serve a notice upon the registrar of land and all persons interested in the land as required under Section 107(5) of the Land Act. It added that whereas the Applicant’s Committee on Land Acquisition and Compensation had resolved that its Secretariat through the Director of Valuation and Taxation would confirm the survey status of the land, do gazettement, and obtain a history of the land, the final decision to compensate was arrived at without obtaining the survey status and history of the land; without undertaking due diligence; without prior valuation and was based on unsigned minutes of the Land Acquisition and Compensation Committee of the Applicant. It contended that the decision should have been taken on the basis of the findings of the Inquiry Committee.

119. The 8th Interested Party further faulted the Applicant for failing to publish in the gazette a notice announcing a date for the holding of a public inquiry and for failing to conduct a public inquiry as required under Section 112 of the Land Act. It contended that in the absence of a notice of a public inquiry, the notice of intention to acquire the property was deemed to have been revoked. The 8th Interested Party added that contrary to the mandatory requirements of Section 121 and 122 of the Land Act, the award and payment of the award were made without the surrender of the title of the suit property to the Applicant and without the existing encumbrance being discharged.

120. On the jurisdiction of this court to entertain this Reference, the 8th Interested Party submitted that the jurisdiction granted to this Court under Sections 127 and 128 of the Land Act does not empower the court to act ex post facto.It contended that the Applicant having made a decision and having implemented the decision, it was too late to move the court under Sections 127 and 128 of the Land Act. It argued that this reference was an attempt to sanitise illegalities committed by the Applicant. It relied on the Supreme Court decision in In the Matter of the Interim Independent Electoral Commission (2011) eKLR. The 8th Interested Party urged that the Applicant together with the 1st and 2nd Interested Parties brought this Reference for the purpose of inhibiting accountability.

The10th Interested Party’s Submissions

121. The 10th Interested Party submitted that this Court did not have jurisdiction to entertain this Reference because under Sections 127 and 128 of the Land Act, this Court is required to make a determination on an issue only when the Applicant has doubts and is unable to make a decision on that issue. It argued that in this Reference, the Applicant had already made its determination on the validity of the subject instrument of title, determined the persons to be compensated and effected the compensation. The 10th Interested Party contended that through this Reference, the Applicant was inviting the court to sanitise its illegal actions, an action which the Court does not have jurisdiction to take. It further submitted that the Applicant having made those determinations and acted on them, the question of the validity of the title over L.R. No. 7879/4 and whether or not it was public land was moot. It also argued that the question of whether the partial compensation had occasioned loss of public funds was a matter within the ambit of the investigative agencies and did not fall within the jurisdiction of this court. The 10th Interested Party further submitted that the Applicant had already made a decision to pay the nominee of the 1st and 2nd Interested Parties and there was therefore no need for the question to be put to the court for determination.

122. The 10th Interested Party argued that questions relating to when the Applicant should take possession of acquired land, whether a search was conclusive evidence of proprietorship and the steps a person can undertake to confirm the authenticity of title were all outside the purview of Section 127 of the Land Act and that this Court did not therefore have jurisdiction to entertain them. In this regard, it relied on the cases of Owners of the Motor Vessel “Lillian 5” -vs- Caltex Oil Kenya Limited [1989] and R -vs- Karisa Chengo & 2 Others [2017] eKLR.

123. On the question of whether the site on which the two schools sit was surrendered to the Government, the 10th Interested Party submitted that the suit land was duly surrendered to the Government once the 1st and 2nd Interested Parties submitted their request for subdivision and proceeded to develop the parcel in accordance with the approved subdivision plan. The 10th Interested Party added that entry and continued presence of the two schools has never been challenged by the 1st and 2nd Interested Parties. The 10th Interested Party relied on the decision of Gacheru J. in Joreth Limited v Victory Faith International Church and 2 others [2017] eKLR.

124. The 10th Interested Party further submitted that the partial compensation for the land on which the two schools sit was irregular because it contravened Sections 107(5), 107(7) and 112 of the Land Act and Section 19(1) of the National Land Commission Act. On the legality of the compensation made to a nominee of the 1st and 2nd Interested Parties, the 10th Interested Party submitted that the payment was unlawful because there was no resolution by the 1st and 2nd Interested Parties authorising the payment. Further, that the payment was made to circumvent a prohibitory order which the Environment and Land Court made in Nairobi ELC Petition Number 1488 of 2016; Okiya Omtata Okoiti & another -vs- African Export Import Limited and Others.

125. On whether a search obtained from the lands registry was adequate due diligence for the purpose of compensation, the 10th Interested Party submitted that a search alone was not adequate because it does not disclose unregistered historical transactions like interests accrued pursuant to approval of a subdivision scheme. The 10th Interested Party added that the Applicant was fully aware of the conditional approval which had been granted to the 1st and 2nd Interested Parties. It further contended that the Applicant failed to ascertain how the Government established the two schools on the suit property.

The 11th Interested Party’s Submissions

126. The 11th Interested Party submitted that he was only aware of the subdivision relating to the land occupied by the GSU which resulted in the creation of LR 7879/24 and 7879/25, and that the Official Receiver consented to that subdivision. He submitted that he was not aware of the subdivision purported to have been carried out in 1983 and that there was no subdivision certificate issued or resultant deed plans arising from the subdivision alleged to have taken place in 1983.

127. The 11th Interested Party further submitted that the then Commissioner of Lands swore an Affidavit stating that there was no subdivision or surrender of any part of the suit property which was carried out during his tenure. He contended that the Attorney General rendered a comprehensive opinion on the matter and that surrender is a process which leads to the registration of the instrument of surrender. The 11th Interested Party relied on Sections 99 and 100 of the repealed Government Lands Act.

128. The 11th Interested Party further submitted that the land occupied by Ruaraka High School and Drive In Primary School was private land which belonged to the 1st and 2nd Interested Parties and as such, was open to compulsory acquisition upon which compensation was payable to the 1st and 2nd Interested Parties. He urged that the recommendations by the Inter-governmental task force and the advice of the Attorney General recognised the 1st and 2nd Interested Parties as owners of the suit property and that therefore there was no basis upon which the 8th Interested Party could claim that the land was public land.

ANALYSIS AND DETERMINATION OF THE QUESTIONS IN THE REFERENCE

129. The Applicant set out six questions for determination in this Reference. Arising from those questions together with the Interested Parties’ responses, the following are the key issues for determination in this Reference:

a) At what stage should the Applicant refer a matter to court under Sections 127 and 128 of Land Act?

b) What is the construction, validity, or effect of the Title over L.R. No. 7879/4 and do Drive In Primary School and Ruaraka Secondary School sit on public or private land?

c) To whom is compensation under Part VIII of the Land Act payable?

d) Did the acquisition of the land occupied by Ruaraka Secondary School and Drive In Primary School as undertaken by the Applicant meet the threshold of public purpose? Was there loss of public funds as a result of the payment of the compensation?

e) At what stage should the Applicant take possession of land that has been compulsorily acquired?

f) Is a search of a Title at the Lands Registry conclusive evidence of proprietorship, or should one undertake other steps to confirm the authenticity of a Title before transacting on it?

Constitutional and Legal Framework

130. Before we render ourselves on the questions set out in this Reference, we shall briefly outline the constitutional and legal framework relevant to the questions. Section 75 of the repealed Constitution protected the right to property and set out clear guidelines upon which the State’s power of compulsory acquisition was to be exercised. Article 40 of the current Constitution outlaws arbitrary deprivation of private property and sets out a clear threshold that must be satisfied before the State can exercise the power of compulsory acquisition. Chapter VIII of the Land Act sets out an elaborate framework on how the power of compulsory acquisition is to be exercised, which is tailored to ensure that there is no undue deprivation of private property.

131. Article 60 of the Constitution sets out the principles upon which land is to be used and managed. It requires that land be managed in a manner that is equitable, efficient, productive and sustainable. Articles 62, 63 and 64 define public land, private land and community land respectively. Article 62 defines public land to include land lawfully held, used or occupied by any State organ except land held under a lease; and land transferred to the State by way of sale, reversion or surrender. Article 66 empowers the State to regulate the use of any land, in the interest of defence, public morality, public order, public safety, public health and land use planning.

132. Prior to 1998, land planning in municipalities was regulated by the Town Planning Act of 1931 and the Land Planning Act of 1968 together with the Rules and Regulations made under those statutes. Section 24 of the Town Planning Act (now repealed) provided thus:

1) Subject to Section 30 of this Ordinance no land within any municipality or township shall, save with the express permission of the Commissioner of Lands, to be obtained in every case, and upon such conditions as he may impose, be divided or subdivided into lots except in accordance with the provisions of a town planning scheme approved under this Ordinance, or where no such town planning scheme has been approved, then in accordance with a scheme of subdivision made so as to satisfy the requirements of the Townships Private Streets Ordinance, wherever applied, and with due regard to the suitability of the land for the purpose intended, and with reference to a town plan, or other plan or scheme (not being a statutory town planning scheme under this Ordinance) for the control of developments, subdivisions or schemes of subdivision of adjacent areas, the provision, preservation and /or enhancement of amenities, the preservation of trees and natural landscape views and beauties and the provision of adequate principal and secondary means of access of subdivisions, of adequate open spaces, public private, and of facilities for water supply and drainage.

2) If it should appear to the Commissioner of Lands that it is not in the public interest that the whole or any part of any land proposed to be subdivided otherwise than in accordance with a statutory town planning scheme or a development plan should be so subdivided or subdivided at all, he may refuse to approve it, or may approve it in whole or in part with or without such modifications and subject to such conditions as he may see fit to prescribe; and the Commissioner of Lands may require the Applicant to submit such additional maps, plans, drawings, documents, statements or information of whatsoever description as he may require.

3) Any person who feels aggrieved by a decision of the Commissioner of Lands under this Section may appeal to the Governor in Council, whose decision shall be final.

4)The Governor in Council may make rules for the better carrying into effect of the provisions of this section.

133. The Physical Planning Act of 1996 which repealed the Town Planning Act gives similar powers to Local Authorities under Section 41. Under the repealed Land Planning Act, the Development and Use of Land (Planning) Regulations of 1961 continued to have the force of law. Regulation 3 defined “development” as follows:

3“(a) the making of any materialchange in the use or density of any buildings or land or the subdivision of any land which, for the purposes of these Regulations, shall be termed class A development; and

(b) the erection of such buildings or works and the carrying out of such building operations as the Minister may from time to time determine, which for the purposes of these Regulations shall be termed Class B development.

134. Regulation 16 of the Development and Use of Land (Planning) Regulations of 1961 empowered the Central Authority, whose chairman was the Commissioner of Lands, to impose conditions whenever granting consent to a planning application, including surrender of land for public amenities. The Regulation provided thus:

16. (1) Conditions imposed in grantingconsent to a planning application may require the doing of things, or may require that things shall be done in relation to land or buildings or any part thereof, or may be of such other character as the Central Authority or interim planning authority, as the case may be, may think proper, and the Central Authority or the interim planning authority, as the case may be, may require the Applicant to enter into an undertaking in such form as may be prescribed, to observe the conditions imposed and may require the Applicant (except in the case of unalienated Government land) to furnish security, whether by bond or otherwise, in such sum as the Central Authority or the interim planning authority, as the case may be, may think fit, for the due observance of the conditions.

(2) Where in the opinion of the Central Authority or the interim planning authority, as the case may be, insufficient land is surrendered in the application for the purposes specified under Regulation 11(2) of these Regulations or such land is, for any reason, unsatisfactory, the Authority may disapprove the Application or may inform the Applicant that the application will be approved if additional land or satisfactory land, as the case may be is surrendered provided that-

i.the authority shall not request the surrender of additional land for public purposes if, having regard to the nature and amount of the development proposed in the application, the land surrendered for such purposes represents an appropriate contribution of the total land required for public purposes to serve the area as a whole;

ii.the authority shall not disapprove an application under this paragraph where the owner surrenders an area of land for public purposes equal to 20 per cent or more of the area of land included in the application;

iii.land surrendered for the public purposes specified under regulation 11(2) of these Regulations shall be freely surrendered to the Government and subject to the approval of the Minister, the land surrendered shall be made available for public purposes related to the area generally, as and when required;………..”

135. Having briefly outlined the relevant constitutional and legal framework, we now proceed to deal with the questions set out in this Reference.

At what stage should a reference under Sections 127 and 128 of the Land Act be made by the Applicant?

136. The 8th and 10th Interested Parties challenged the timing of the present Reference and urged the court to reject it on the ground that the Applicant was inviting the court belatedly to pronounce itself on matters upon which the Applicant had already made final decisions and implemented. The Reference was expressed to be brought under Sections 127 and 128 of the Land Act. Section 127 (1) of the Land provides that the Applicant may at any time refer to the Court for its determination any question as to: -

a)the construction, validity or effect of any instrument;

b)the persons who are interested in the land concerned;

c)the extent or nature of their interest;

d)the persons to whom compensation is payable;

e)the shares in which compensation is to be paid to tenants in common;

f)the question whether or not any part of a building is reasonably required for the full and unimpaired use of the building; or

g)the condition of any land at the expiration of the term for which it is occupied or used.

137. Section 128 provides that any dispute arising out of any matter provided for under the Land Act may be referred to the Environment and Land Court for determination.

138. From the above framework, it is clear that a reference under Section 127 of the Act can be brought any time as there are no time limits set by the statute. Similarly, Section 128 does not prescribe time limits for referring disputes arising from the provisions of the Land Act to the Environment and Land Court. We appreciate that scenarios may arise from time to time, when issues calling for the Court’s determination may come up after the Applicant has already pronounced itself on a matter. It would not be prudent to shut the Court’s doors in such circumstances when Parliament left that door wide open. It is therefore our finding that references under Sections 127 and 128 of the Land Act can be brought at any time.

139. Having made the above finding, it cannot be gainsaid that the Applicant is expected to strictly adhere to the letter and spirit of the law on compulsory acquisition and ensure that public interest prevails and the acquisition process is above board. In this regard, a reference to this court ought to be made timeously. It may not serve any useful purpose for the Applicant to move the court on a reference when it has already concluded the process of compulsory acquisition and paid out compensation because recovery of the public funds may be difficult after the funds have been dissipated.

What is the construction, validity, and effect of the Title over L.R. No. 7879/4; and do Drive In Primary School and Ruaraka Secondary School sit on public or private land?

140. We were invited to construe and determine the validity or effect of the title instrument in respect of L.R. No. 7879/4 with a view to determining whether Drive In Primary School and Ruaraka High School sit on public or private land. The two schools sit on parcels carved out of L.R. No. 7879/4. The Title is registered in the names of the 1st and 2nd Interested Parties as tenants in common in equal shares. The common position of the Applicant together with the 1st, 2nd and 11th Interested Parties was that the subdivision scheme pursuant to which the land occupied by the two schools was planned was subsequently cancelled by the 1st and 2nd Interested Parties, and that therefore the land on which the schools sit was not surrendered to the State as public utility plots. They contended that the land occupied by the two schools was private land. The 4th, 5th, 6th, 7th, 8th, 9th and 10th Interested Parties took the position that the land occupied by the two schools was surrendered to the State by the 1st and 2nd Interested Parties as a prerequisite for the approval of their subdivision scheme; the sub division scheme was duly approved; and the envisaged physical subdivision and developments were carried out on the ground and that as such, the site on which the two schools sit constitutes public land.

141. It is not in dispute that the 1st and 2nd Interested Parties acquired L.R. No. 7879/4 measuring approximately 96 acres from Joreth Limited in 1981 at a consideration of Kshs 14,000,000/=. It is also common ground that in 1982, the 1st and 2nd Interested Parties, through their appointed agents, M/s Drive In Estate Developers Limited and M/s B. S. Dogra, applied for approval of the subdivision scheme in respect of L.R. No. 7879/4. The proposed subdivision scheme was approved by the Nairobi City Council on 6/9/1982 and forwarded to the Commissioner of Lands for approval by the Central Authority within the framework of the repealed Land Planning Act and the repealed Town Planning Act. On 22/3/1985, the Central Authority, through the Commissioner of Lands, approved the subdivision scheme. Both approvals were granted on condition that the land earmarked for social amenities, inter-alia, community social hall, nursery school, primary school, secondary school, roads and open spaces would be surrendered to the Government as public land to be utilised for the designated public purposes. Although the 1st and 2nd Interested Parties made reference to the subdivision scheme, they did not furnish the court with a copy of that scheme. The 9th Interested Party furnished the court with a copy of the scheme, which none of the parties contested. We have carefully examined the scheme and note that it contained the sites designated for the said public amenities.

142. The Applicant together with the 1st, 2nd and 11th Interested Parties contended that through the letter dated 5/4/1984 addressed to the Director of Planning at City Hall, the subdivision scheme was cancelled because the conditions imposed by the approving authorities were unacceptable to the 1st and 2nd Applicants. Having carefully examined and evaluated the materials placed before us in this reference, we do not agree with the view taken by the 1st, 2nd and 11th Interested Parties for the reasons given below.

143. 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.

144. 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.

145. 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. We note from the evidence on record that the Government made double payment in respect of the 196 units and the land on which they sit but the relevant land register still bears the names of the 1st and 2nd Interested Parties as the registered proprietors of the entire parcel. The 196 units are occupied by the GSU.

146. 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.

147. 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.

148. 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.

149. Our understanding of the said repealed legal framework is that it empowered the approving authority to prescribe conditions upon which approval would be granted to an applicant for a land subdivision scheme within any municipality or township. The Physical Planning Act which repealed the Town Planning Act confers similar powers upon Local Authorities under Sections 31 and 41 of the Act.

150. The totality of the foregoing is that a registered proprietor of land under the various land regimes which existed in Kenya prior to 2012 held land subject to the written regulatory legal framework governing physical planning in the country at the time. This legal scenario obtains to date. The net legal effect is that every registered title to land is held subject to the provisions of the prevailing physical planning laws.

151. The 1st, 2nd and 11th Interested Parties contended that there was no surrender because no instrument of surrender was executed and registered in respect of the public utility plots. We do not agree with that view. Our 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 utility plots were deemed to have been surrendered for the designated public amenities. The proponent of the subdivision scheme cannot rely on his failure to execute the surrender instrument to defeat the public purpose for which the plots were planned.

152. We do not agree with the argument that the survey records and correspondence exhibited by the 4th and 8th Interested Parties cannot be relied on based on Sections 99, 100 and 101 of repealed Government Lands Act and the Registration of Documents Act because the 1st and 2nd Interested Parties admitted that the subdivision of L.R. No. 7879/4 was done from 1983 and only contended that the implementation of the subdivision scheme plan did not advance beyond the preliminary stage of application. Having failed to complete the subdivision process of L.R. No. 7879/4 so that separate titles could be issued for the GSU land and the land surrendered for public purposes, the 1st and 2nd Interested Parties cannot rely on the Registration of Documents Act which requires registrable documents to be registered within two months of execution. There was nothing to be registered since they had not completed the subdivision of the land and also failed to execute the necessary documents.

153. Our determination on the question of the construction, effect and validity of the title over L.R. No. 7879/4 therefore is that, although L.R. No. 7879/4 is still registered in the names of the 1st and 2nd Interested Parties, the title is held subject to the interest of the Government in the public amenity plots, which interest crystallised upon the Government’s approval of the 1st and 2nd Interested Parties’ subdivision scheme and subsequent implementation of the scheme on the ground. The public amenity plots include the land on which Drive In Primary School and Ruaraka High School sit. Similarly, the title is held subject to the interest of the State in the land occupied by the GSU. It is therefore our finding that the two schools sit on public land. Further, it is our finding that being public land, the land on which the two schools sit could not be the subject of compulsory acquisition under Part VIII of the Land Act.

To whom is compensation payable under Part VIII of the Land Act?

154. The Applicant sought a determination on whether an award of compensation was payable to an agent or nominee or assignee of the person identified as having an interest in the land being compulsorily acquired. It further sought the court’s determination of the validity or effect of the payment of the partial award of compensation made to Whispering Palms Estate Limited on behalf of the 1st and 2nd Interested Parties. Notwithstanding our determination that the land on which the two public schools sit is public land and could not therefore be compulsorily acquired, we will nevertheless answer all the questions set out in the Reference.

155. We note that whereas the impugned payment was made to Whispering Palms Estate Limited as an agent of the 1st and 2nd Interested Parties, the Applicant did not make this company a party to this Reference. Consequently, we do not know the position of Whispering Palms Estate Limited regarding the payment it received.

156. Sections 111 and 115 of the Land Act stipulate the persons to whom compensation is to be paid. Section 111 (1) states that:

111(1) where land is acquired compulsorily under the Act, just compensation shall be paid promptly in full to all persons whose interest in the land have been determined.

Under Section 115, after notice of an award has been served on all the persons determined to be interested in the land, the Applicant is required to promptly pay compensation in accordance with the award to persons entitled thereunder except where there is no person competent to receive payment, or the person entitled refuses to receive the amount awarded, or where there is a dispute as to the right of the persons entitled to receive the compensation or the shares in which the compensation is to be paid. In these instances, the Applicant is to pay the amount of the compensation into a special compensation account held by it, and notify any persons interested accordingly.

157. It is clear from the above provisions that the Land Act provides a framework on how compensation funds under Part VIII of the Land Act are to be paid. The Act requires the acquiring body to deposit with the Applicant the compensation funds together with survey fees, registration fees and other costs. The statute specifically requires the Applicant to pay the funds to the person (s) determined to be entitled to the payment and not to a general agent of that person. Where the Applicant is unable to pay the persons determined to be interested in the land, the funds are to be kept in a special compensation account held by the Applicant, and the Applicant is required to notify the persons interested in the compensation of its being deposited in the special compensation account.

158. In our view, the provisions on how land compensation money is to be handled was intended to protect public funds and prevent scenarios where landowners may be paid through undefined agents and subsequently deny receipt of payment or fail to execute conveyance documents necessary for the conveyance of the acquired land.

159. The Applicant contended that Section 115 of the Land Act did not bar remittance of a compensation award to general agents. We do not agree with that proposition. If that were the position, Parliament would not have legislated an elaborate framework on the payment of the compensation award. In our view, the agents to whom compensation may properly be made under Part VIII of the Land Act are statutory agents duly appointed under the law and exercising their statutory mandate under statutory instruments. We do not think Parliament envisaged a scenario where a director of a company with more than one director, without any recognised legal instrument, would be at liberty to divert compensation funds to an entity that has no interest in the land being compulsorily acquired.

160. In the Reference before us, there was no explanation as to why the 1st and 2nd Interested Parties whom the Applicant determined to be entitled to receive compensation funds could not receive the payment. There was also no evidence of any legal instrument appointing Whispering Palms Estate Limited as the statutory agent of the 1st and 2nd Interested Parties to receive the compensation award on their behalf.

161. It is therefore our determination that under Part VIII of the Land Act, the person to whom compensation funds are payable is the person determined by the Applicant, or by the court where there is a dispute, to be entitled to the compensation. Where payment is to be made to an agent, the agent should be a duly appointed and recognised statutory agent. The payment of the impugned compensation award to Whispering Palms Estate Limited by the Applicant was therefore irregular for reasons that the company neither had an interest in the land being acquired, nor was it duly appointed as a recognised statutory agent.

162. The 11th Interested Party argued that the mortgage owed to Continental Credit Finance (In Liquidation) remained undischarged. We are of the view that in determining the persons to whom compensation is to be paid for the land being acquired, the Applicant must ensure that all the encumbrances registered against the land being acquired are first discharged. There was no mention of defraying the loan owed to Continental Credit Finance Limited by the 1st and 2nd Interested Parties when the Applicant forwarded the compensation funds to the agent of the 1st and 2nd Interested Parties.

163. The 1st and 2nd Interested Parties’ director, Francis Mburu deponed that the 8th Interested Party obtained the Title over L.R. No. 7879/4 from their advocates, Harith Sheth ostensibly for purposes of investigation. In the ordinary course of business when property is charged or mortgaged, the original title document is kept in the custody of the mortgagee until the loan is paid. It is not clear why the title over L.R. No. 7879/4 was not kept by the Official Receiver if the mortgage sum had not been repaid by the 1st and 2nd Interested Parties. It is also not clear why the 11th Interested Party has never taken steps to realise the security secured by this mortgage which was registered in 1981.

Did the acquisition of the land occupied by Ruaraka Secondary School and Drive In Primary School as

undertaken by the Applicant meet the threshold of public purpose? Was there loss of public funds as a result of the payment of the compensation?

164. In answering the twin questions herein, it is important to note that we have already made a finding that the portion on which the two schools sit was surrendered for public purposes and had accordingly been reserved for that purpose. Although the 1st and 2nd Interested Parties had purported to cancel the approved subdivision scheme through their agent, Drive In Estate Developers Limited, subsequent correspondence show that the letter of cancellation was the beginning of a scheme to claim the land which they had already surrendered in compliance with the conditions upon which the approval for subdivision was granted. In the letter dated 14/5/1984, the 1st and 2nd Interested Parties applied to the Commissioner of Lands to re-allocate them the land which they had surrendered.

165. Had there been no surrender of the land for public utilities as the 1st and 2nd Interested Parties contended, they would not have written the letter of 14/5/1984 which they now claim was forged. Furthermore, the 1st and 2nd Interested Parties wrote on 4/7/1984 informing the Commissioner of Lands that they had surrendered the land in line with condition 10 in the letter approving the subdivision. The 1st and 2nd Interested Parties in their arguments during the hearing tried to claim that the said letter was written by Drive In Estate Developers Limited and that they cannot be held liable as they did not authorise that company to write the letter. In our view, this argument is without merit. Firstly, there is evidence that the 1st and 2nd Interested Parties and Drive In Estate Developers Limited had common directors and shareholders. Secondly, Section 3 of the repealed Land Planning Act defined an owner to include an agent or manager of the land which was the subject of the subdivision scheme. In this case, the 1st and 2nd Interested Parties had authorised Drive in Estate Developers Limited to act for them and cannot therefore purport to selectively disown what Drive in Estate Developers Limited did on their behalf.

166. The process of compulsory acquisition is very elaborate. It is anchored in Article 40 (3) of the Constitution and Sections 107 to 133 of the Land Act 2012. What the Applicant did was not actually compulsory acquisition. If there was to be an acquisition in accordance with the law, the 6th Interested Party should have been the one to make the request for the acquisition of the land. If the request was approved, the Applicant was then to publish a notice in the Gazette and the County Gazette and deliver a copy of the notice to the Land Registrar and every person who appeared to the Applicant to be interested in that land.

167. Upon service of the notice, the Registrar would make an entry of the intended acquisition in the register. In this case the notice ought to have been served upon the 1st and 2nd Interested Parties as the registered owners of the land part of which was to be acquired, the Official Receiver of Continental Credit Finance Limited (in liquidation) as the chargee of the property together with Ruaraka High School and Drive-In Primary School who were in occupation of the portion which was to be acquired. Since there was only one title for the entire parcel known as L.R. No. 7879/4, all persons with an interest in this land including the GSU should have been notified of the 6th Interested Party’s intention to acquire part of this land.

168. The Applicant was expected to appoint a date for an inquiry to hear issues of proprietorship and claims for compensation by all persons interested in the land. The date of inquiry was to be set at least 30 days after the publication of the notice of the intention to acquire the land. The Applicant was then expected to publish in the Gazette notice of the inquiry at least 15 days before the inquiry and serve a copy of the notice on every person who appeared to the Applicant to be interested or who claimed to be interested in the land to be acquired.

169. The notice of inquiry should have called upon the persons interested in the land to deliver written claims of compensation. At the hearing, the Applicant was expected to make a full inquiry into, and determine the persons interested in the land and receive claims of compensation from them. Upon conclusion of the inquiry, the Applicant was expected to make an award. The Applicant was then expected to serve on every person interested in the land a notice of the award. After service of the award, the Applicant was required to promptly pay compensation in accordance with the award.

170. In this case, the Applicant did not follow the elaborate steps stipulated by the Land Act. The Applicant was moved by the 1st and 2nd Interested Parties’ who lodged a claim for historical injustice on the ground that Ruaraka High School and Drive In Primary School had been established on part of their land in the 1980’s and that they had not been paid any compensation. The complaint by the 1st and 2nd Interested Parties was through a letter dated 17/8/2016 written by Francis Mburu who is a director in both companies.

171. The Applicant wrote to 6th Interested Party on 29/8/2016, bringing to his attention the complaint by the 1st and 2nd Interested Parties. In the letter, the Applicant’s Chairman intimated that the complaint by the 1st and 2nd Interested Parties fell within the Applicant’s mandate under Article 40(3) of the Constitution and Part VIII of the Land Act of 2012. The Chairman further indicated that they had carried out a ground inspection and confirmed that Ruaraka High School and Drive In Primary School were located on the land in issue. The Chairman asked the 6th Interested Party to confirm the position and make arrangements to compensate the landowners.

172. On 13/9/2016, the Chairman of the Applicant wrote to the 6th Interested Party and informed him that the two schools were occupying 13. 5364 acres. In answer to the letter of 13/9/2016, the Principal Secretary of the Ministry of Education wrote to the Chairman of the Applicant and advised the Chairman to start the process of compulsory acquisition and guide the Ministry on all procedures including necessary Gazette notices and acquisition plans. On 16/2/2017, the Chairman of the Applicant wrote to the Principal Secretary of the Ministry of Education and brought to his attention the provisions of Section 107(1) of the Land Act which requires that a request for acquisition of land should be made by the Cabinet Secretary.

173. On 17/3/2017, the 6th Interested Party wrote to the Chairman of the Applicant giving the go ahead to commence the process of acquisition which he stated was within the purview of the Applicant. On 24/4/2017, the Chairman of the Applicant wrote to the 6th Interested Party requesting him to set aside Kshs. 3,269,040,600/= for compensation purposes. On 30/6/2017, the Principal Secretary of the Ministry of Education wrote to the Principal Secretary, National Treasury enclosing the letter of 24/4/2017 from the Chairman of the Applicant. The Principal Secretary of Education also brought to the attention of the Principal Secretary, National Treasury the gazettement of the intention to acquire the land and further indicated that they had sought the opinion of the Attorney General on the issue of acquisition. The Principal Secretary further brought up the budgetary implications.

174. On 13/11/2017, the Principal Secretary, National Treasury wrote to the Principal Secretary, Ministry of Education authorising him to expend Kshs. 1,500,000,000/= towards compensation pending regularisation of the expenditure in the financial year 2017/2018. On 19/1/2018, the Principal Secretary of the Ministry of Education informed the Chairman of the Applicant about the release of the sum of Kshs. 1,500,000,000/= to the Applicant’s account. The Principal Secretary stressed the need for the Applicant to ensure that due diligence was carried out during the compulsory acquisition and ensure that the Applicant was in possession of the instruments of ownership.

175. Despite the Chairman of the Applicant being repeatedly urged to ensure that the compulsory acquisition was undertaken in accordance with the law, nothing of the sort happened. The Applicant only published the notice of the intention to acquire land vide Gazette Notice number 6321 of 30/6/2017. No notice of inquiry was published despite the Applicant indicating it would do so in the Gazette Notice of 30/6/2017. The Applicant asked the 6th Interested Party to set aside Kshs. 3,269,040,600/= before the valuation of the land to be acquired was done. The valuation, which coincidentally arrived at the exact figure which the Applicant had asked the 6th Interested Party to reserve on 24/4/2017, was carried out on 14/6/2017. The remarks by the Land Registrar of the intention to acquire this land were belatedly recorded in the register after March 2018 without an entry number or date or signature of the Land Registrar contrary to Section 107(6) of the Land Act which requires the entry to be made in the register upon service of the notice.

176. Had the Applicant conducted the inquiry in accordance with the law, it would have discovered that the land which was to be acquired for the two schools had already been surrendered and set aside for public purposes. We therefore find that the compulsory acquisition of the land on which the two schools sit did not meet the threshold of public purpose and should not have been undertaken in the first place. One cannot purport to compulsorily acquire what is already public land. It is the Applicant which started off the acquisition process on a complaint based on historical injustice which was then turned into compulsory acquisition. Despite the 6th Interested Party insisting on due diligence being followed, the Applicant did not do this. Instead, the Applicant misled the Ministry of Education into undertaking a compulsory acquisition exercise that was totally unnecessary and led to loss of public funds.

177. The Applicant has already paid out Kshs. 1,500,000,000/= as part of the compensation for the acquisition of the land on which the two schools sit. The money is lost and it is public money which should not have been paid out had the Applicant carried out due diligence as the law requires of it.

178. Article 201 of the Constitution gives the principles to guide all aspects of public finance in the Republic. They include openness and accountability in financial matters, and that public money shall be used in a prudent and responsible way. Article 232 of the Constitution also enjoins the Applicant to uphold the values and principles of public service which include high standards of professional ethics and efficient, effective and economic use of resources.

179. Land as a resource is to be held, used and managed in a manner that is equitable, efficient, productive and sustainable. One of the guiding values and principles of land management and administration under Section 4 of the Land Act is transparent and cost effective administration of land. The other guiding principle is technical and financial sustainability. In managing public land, the Applicant was enjoined by Section 8(1) of the Land Act to identify public land, prepare and keep a database of all public land, which was to be geo-referenced and authenticated by the statutory body responsible for survey. It was also required to share the data with the public and relevant institutions. This Act came into force on 2/5/2012 and one would have expected that by 2017 when the Applicant purported to undertake the compulsory acquisition of the land on which the two schools sit, there should have been a register of all public land which would have guided the Applicant on whether the land it proposed to compulsorily acquire for the two schools was private or public land.

180. Under Section 1139(2) (a) of the Land Act, the value of the land being acquired is based on the opinion of the Applicant. In our view, the value of the land being compulsorily acquired for public purposes by the Applicant ought to be based on the price the property would fetch in the open market in an arms-length transaction in which all the parties are acting prudently. The valuation process needs to be clear to the persons interested in the land and to the public considering the fact that compensation funds are paid from public resources. The economic use to which the land being acquired was being put into would be a material factor to be considered in determining the value of the land to be acquired. The Applicant has to keep in mind that it acts in the public interest and therefore has a responsibility to ensure prudent, economical and responsible use of public funds when it is valuing land for purposes of compensation. There is need for transparency and accountability in the valuation of land for compulsory acquisition to make it sustainable and affordable.

At what stage should the National Land Commission take possession of land that has been compulsorily acquired?

181. Ruaraka High School and Drive In Primary School were already established on the land which was being acquired. Section 120(1) of the Land Act provides that possession of the land acquired by the Applicant is to take place after an award has been made, the amount of compensation has been paid and the Applicant has served on all those interested in the land, a notice that it shall take possession of the land on a specified date. This section was not followed as the Applicant did not serve any notice upon those interested in the land. We therefore find that the provisions of the law were not followed, since the two schools were already in occupation of the land.

Is a search of a title at the lands registry conclusive evidence of proprietorship, or should one undertake other steps to confirm the authenticity of a title before transacting on it?

182. A search on any title at the land registry is very important before one can act on it. The search indicates the owner(s) of a particular property and any encumbrances or other relevant entries registered against that land. Once a search is issued by the Lands Office, it should be conclusive evidence of proprietorship in light of the fact that our title registration system is based on the Torrens System of registration. However, a search may not always be a true reflection of the position as will be demonstrated below where two searches carried out in the same year showed different results. On the one hand, the copy of the search which was annexed to the Applicant’s Supporting Affidavit showed that L.R. No. 7879/4 was registered in the names of the 1st and 2nd Interested Parties and had nil encumbrances as at 19/1/2018. On the other hand, the search annexed to the Replying Affidavit of the 1st and 2nd Interested Parties showed that they were the registered owners and that there were two undischarged mortgages registered against the title in favour of the 11th Interested Party and KPTC as at 7/8/2018.

183. The two searches were done in the same year, emanated from the same registry and are in respect of the same piece of land. It is inconceivable that one search done in January, 2018 would show that there were no encumbrances and yet another one done in August, 2018 shows that there were two mortgages dated 29/12/1981 and 11/7/1986 respectively. The two contradictory searches show that a search and the records held at the lands registry can be manipulated to achieve certain objectives which in most cases are intended to deceive those relying on the search to transact on the land in question.

184. Based on the inherent danger of the search system which is based on the Torrens System of registration, it is necessary for one to take further steps to ascertain the authenticity of the search and ownership of the land. If the Applicant had bothered to delve into the history of the title, it would have discovered that the title had two mortgages besides other entries in the register and the other transactions in respect of L.R. No. 7879/4 which were not noted on the register. We appreciate the fact that searches are generated by the Registrar of Titles but the Applicant being the National Land Commission which works closely with the Ministry of Lands under which the Registrar falls, the Applicant should have, in the spirit of the Advisory Opinion of the Supreme Court in In the matter of National Land Commission [2015] eKLR gone a step further to ascertain the true status of the title to the land in question.

185. We do not think the Applicant’s contention that it solely relied on the search when undertaking the compulsory acquisition of the land on which the two schools sit was diligent and pragmatic. This is because the theme of due diligence runs throughout Part VIII of the Land Act. Section 119 of the Land Act underscores the need to undertake due diligence before payment is made. Before compensation is paid, the Applicant is expected to ensure that a final survey is carried out and the acreage, boundaries, ownership and value of the land determined. A reading of this section makes it clear that apart from a search, there were other steps which the Applicant was expected to undertake.

186. Section 8 (2) of the Land Act obligates the Applicant to establish and maintain a register containing various particulars including the names and addresses of all persons whose land has been converted to public land through compulsory acquisition or reversion of leasehold. It will be necessary for someone wishing to transact on land to also extend the due diligence to the register of public land maintained by the Applicant. We note that the Applicant did not mention the register of public land in this Reference.

187. Section 28 of the Land Registration Act lists overriding interests that subsist and affect land but which need not be noted on the register. One of these interests is rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions or by prescription. In undertaking due diligence, one must go further and ascertain if there are any overriding interests affecting the land they wish to transact on. In light of the foregoing, our finding is that a search is not conclusive evidence of ownership. One needs to go further than a mere search.

188. Each party to bear their own costs.

Dated, Signed and delivered at Nairobi on this 28th day of June, 2019.

E. O. OBAGA

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JUDGE

K. BOR

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JUDGE

B.M. EBOSO

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JUDGE