Court of Appeal nullifies Sh2.4bn Ruaraka land compensation deal

The Government has suffered a major legal blow after the Court of Appeal torpedoed a Sh2.4 billion compensation deal at the heart of the controversial Ruaraka land saga.[Courtesy]

The Government has suffered a major legal blow after the Court of Appeal torpedoed a Sh2.4 billion compensation deal at the heart of the controversial Ruaraka land saga, declaring the proceedings that sanctioned the payment a nullity.

A three-judge bench comprising Justices Wanjiru Karanja, Francis Tuiyott and William Korir has overturned the High Court  judgment that paved the way for the multimillion-shilling compensation over a 37.4-acre portion of land acquired for building GSU houses forming part of the disputed Ruaraka property.

The judges found that the High Court had no jurisdiction to handle the land dispute after November 9, 2012, when the Chief Justice issued practice directions requiring land matters that had not commenced hearing to be transferred to the Environment and Land Court.

"The upshot is that we allow the appeal and declare all the proceedings after the November 9, 2012, including the judgment of February 12, 2013 and the consent order of  April 8,2013, a nullity. The same are set aside. The matter is remitted to the Environment and Land Court for hearing and determination," the judges ruled.

The decision effectively nullified a February 2013 judgment and an April 2013 consent order through which the compensation figure was reduced from Sh4.086 billion to Sh2.4 billion.

The dispute involved Afrison Export Limited and Huelands Limited, companies linked to the late businessman Francis Mburu which claimed that the Government had occupied their land since 1988.

The companies initially sought Sh6.45 billion as the purchase price for LR No. 7879/24, together with Sh1.67 billion for alleged loss of use of the property.

A valuation by Camp Valuers placed the land at Sh6.45 billion, while the High Court later adopted the mean of three valuations and entered judgment for Sh4.086 billion.

The amount was subsequently reduced to Sh2.4 billion after the parties entered into a consent before the High Court.

But activist Okiya Omtatah Okoiti and Nyakina Wyclife Gisebe challenged the proceedings arguing that the dispute should have been determined by the Environment and Land Court.

The Court of Appeal judges agreed, finding that when the Chief Justice issued the practice directions on November 9, 2012, hearing of the case had not commenced.

The record showed that on December 18, 2012, the matter was still being mentioned for purposes of fixing a hearing date.

On February 5, 2013, the trial judge was still giving directions on how the originating summons would proceed when the parties recorded a consent on the valuation of the property.

The appellate judges said the case therefore did not qualify to remain before the High Court.

“This was not one such matter,” the judges held.

They ruled that the High Court was bereft of jurisdiction after November 9, 2012 and that every proceeding undertaken thereafter was legally void.

The judges further rejected the argument that the parties' consent could cure the jurisdictional defect.

“Jurisdiction exists or it does not,” they stated.

The Court noted that the decision could have significant consequences because it was informed that payments had already been made pursuant to the consent order

However, the judges maintained that such payments could not validate proceedings conducted without jurisdiction.

“All done without jurisdiction is void and in law a nullity,” the Court held.

The judges consequently declared all proceedings after November 9, 2012 a nullity, including the February 12, 2013 judgment and April 8, 2013 consent order.

The matter has now been remitted to the Environment and Land Court for hearing and determination.

The Court, however, declined to determine other contentious issues raised by the appellants, including questions surrounding ownership of the wider property, the legality of the alleged acquisition and whether the transaction complied with constitutional and statutory requirements.

The ruling adds a fresh twist to the long-running Ruaraka land controversy involving the 96-acre property and companies associated with the late businessman Mburu.

The wider Ruaraka saga has generated years of litigation and public scrutiny  over ownership of land occupied by Government installations and public institutions, as well as compensation claims running into billions of shillings.

In the latest ruling, the Court of Appeal stressed that the public interest in the dispute could not justify overlooking the fundamental requirement of jurisdiction.

The judges ordered each party to bear its own costs of the appeal.