The Supreme Court has temporarily suspended a judgment that declared illegal the payment of Sh1.5 billion in compensation to companies linked to late businessman Francis Mburu over land occupied by two public schools in Nairobi.
A full bench of the apex court issued the interim orders pending the hearing and determination of an appeal filed by Huelands Limited and Afrison Export Import Limited.
The Court of Appeal had, in a judgment delivered on July 3, cleared the way for the Ethics and Anti-Corruption Commission (EACC) to recover the Sh1.5 billion paid as compensation for 13.5 acres occupied by Drive-In Primary School and Ruaraka High School.
A further payment of Sh1.769 billion was stopped in 2018, pending the determination of the case.
Following the ruling, EACC wrote to the firms and several former government officials, including former Interior CS Fred Matiang’i, Immigration PS Belio Kipsang and former National Land Commission (NLC) chairman Muhammad Swazuri, demanding a refund of the money.
Businessman Francis Mburu. Mr Mburu was paid Sh1.5 billion for the contested Ruaraka land on which two schools stand.
Photo credit: File | Nation
However, the two firms moved to the Supreme Court seeking to halt implementation of the judgment pending the hearing of their appeal.
“The notice of motion dated July 30, 2026 is certified as urgent. Pending the hearing and determination of the motion, there shall be an interim order staying the execution of the judgment of the Court of Appeal dated July 3, 2026,” the court ruled.
The order means any attempts to recover the Sh1.5 billion compensation will remain on hold until the Supreme Court gives further directions. It also pauses any investigations, arrests, charges or prosecutions arising from the disputed compensation.
At the centre of the dispute is whether the companies voluntarily surrendered the 13.5 acres for public use when seeking approval to subdivide a larger parcel of land in the 1980s.
The firms argue that the courts wrongly concluded that the land had been surrendered, saying there was no registered instrument showing such a surrender.
They contend that treating planning approval as a surrender of private land amounts to compulsory acquisition without compensation, contrary to constitutional protections of property rights.
The companies further argue that the Court of Appeal failed to properly interpret Article 40 of the Constitution, which protects property from arbitrary deprivation.
According to the firms, the National Land Commission lawfully initiated compulsory acquisition proceedings after establishing that the schools stood on privately owned land. They also maintain that the NLC approved a further Sh1.769 billion compensation that remains unpaid.
EACC has opposed the appeal, arguing that the constitutional issues raised by the companies were not part of the dispute before either the Environment and Land Court or the Court of Appeal.
The anti-graft agency says the lower courts dealt mainly with factual questions, including whether the companies had surrendered the land as a condition for approval of a subdivision scheme lodged in 1982.
EACC argues that the firms are attempting to turn factual disputes into constitutional questions to persuade the Supreme Court to revisit findings already made by the lower courts.
“Having made concurrent findings of fact on that issue, the petition of appeal seeks to invite this court to re-evaluate the evidence and interfere with those findings, contrary to its appellate jurisdiction,” EACC said.
In its July judgment, the Court of Appeal found that correspondence on record supported the conclusion that the land had been voluntarily surrendered for public use.
The court also noted that Drive-In Primary School and Ruaraka High School were established on the land in 1984 and 1987 respectively, and that the companies did not seek to reclaim the property for decades.
The Supreme Court will now determine whether the Court of Appeal was right in finding that the land had been surrendered and whether the compensation was lawfully paid.
