The Court of Appeal has rejected a bid by businessman Francis Mburu to table additional documents as he pursues the payment of Sh3.3 billion from the government for the controversial Ruaraka land, which was declared illegal by the High Court.
Mr Mburu had argued that the documents to be relied on in the appeal were not available to him when a bench of three judges of the Environment and Land Court declared the compensation illegal in 2019, as the parcel in which two public schools sit, was public land.
Court of Appeal judges Daniel Musinga, Asike Makhandia and Mumbi Ngugi ruled that the pending appeal can effectively be determined on the evidence, both oral and documentary, already in the record.
“It is also our view, having considered the evidence sought to be adduced, that the applicants are really seeking to reopen, re-argue and or fill in the gaps or lacunae in their evidence that was before the ELC under the guise of the instant application,” the judges said.
The court added that it does not see how the matters that have arisen post-judgment can form a basis for this application, and that allowing the application will be against the principle that there should be an end to litigation.
“We are further persuaded that had the applicants acted with due diligence, they would have been able to get most of the evidence now sought to be adduced, save the documents that came after the judgment,” the judges added.
In a judgment on June 28, 2019, three judges ruled that Ruaraka High School and Drive-in Primary School were already established in the portion of the suit property which was being acquired by the National Land Commission (NLC).
The court had held that 13.5-acre portion on which the schools sit had been surrendered for public purposes and the planned compulsory acquisition by NLC on behalf of the Ministry of Education was unnecessary, leading to loss of public funds.
The Commission had advised the Ministry of Education to pay Mr Mburu and his companies- Afrison Export Import Limited and Huelands Limited- Sh3.2 billion for the land.
The payment was stopped after Ethics and Anti-Corruption Commission (EACC) challenged the deal as illegal.
Mr Mburu escalated the matter to the appellate court as he seeks the judges to determine who owns the 13.5 acres of the suit property and when it was acquired by the government.
He also wants the court to determine whether it was legally surrendered for public use and whether the conditional approval for subdivision plan of 1984 was fully implemented or it was cancelled.
He submitted that the new evidence is pertinent to the determination of the issues in the appeal as some of the evidence was obtained after the Senate hearings that came after the judgment.
The anti-graft body opposed the application, arguing that none of the evidence sought to be adduced was new as the documents were readily available before the Environment and Land court made its determination.
The Environment and Land Court judges said Mr Mburu and the two companies claiming the land did not explain why they did not seek compensation on the land in the 1980s when the school was established, only to pursue it decades later.
Documents filed in court showed that the Ministry of Education formally requested NLC to guide it in the requisite formal process and secure public interest by acquiring the land on which the schools sit.
EACC told the court that upon investigating the matter, it discovered that NLC irregularly awarded compensation of Sh3.3 billion to the two companies.
The anti-graft agency further said the former NLC chairman Prof Mohammad Swazuri arrived at the figure before actual valuation on the portion occupied by the schools was carried out.
Evidence tabled in court showed that the Treasury, in a letter dated November 13, 2017, authorised the Ministry of Education to spend Sh1.5 billion in the compulsory acquisition of the schools’ land pending regularisation of the expenditure in the financial year 2017/18 Supplementary II Estimates. The balance would be paid in the next financial year.
