Supreme Court halts recovery of Sh1.5bn in Ruaraka land compensation case

Milimani Law Courts building in Nairobi. [Collins Kweyu, Standard]

The Supreme Court has issued temporary orders halting the recovery of Sh1.5 billion paid as compensation for land occupied by Ruaraka High School and Drive-In Primary School.

A five-judge bench comprising Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Justices Mohammed Ibrahim, Njoki Ndung’u, Isaac Lenaola, William Ouko and Said Juma Warsame issued interim orders staying execution of the July 3, 2026 Court of Appeal judgment pending the hearing and determination of an application filed by Huelands Limited.

The orders mean the Ethics and Anti-Corruption Commission (EACC) cannot for the time being proceed with efforts to recover the Sh1.5 billion or undertake enforcement measures arising from the appellate court decision.

“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 3rd July 2026 and consequential decretal orders,” the CJ Koome-led bench ruled.

The Apex court also certified Huelands’ Notice of Motion dated July 30, 2026 as urgent and directed that it be served on the respondents.

The respondents have five days from service to respond, while Huelands will have three days thereafter to file a reply, if any.

The matter is scheduled to be mentioned before the Deputy Registrar on August 28, 2026 for further directions.

The interim orders specifically stop any demand for, or steps towards, recovery of the Sh1.5 billion paid over the portions occupied by the two schools.

The Supreme Court has also barred investigations, arrest, charging or prosecution of Huelands, Afrison Export Import Limited, Whispering Palms Estate Limited or their respective directors and officers arising from or touching on the payment pending determination of the Motion.

Further, there is a temporary freeze on alteration, rectification, cancellation or amendment of the land register relating to LR Nos. 7879/4, 7879/24 and 7879/25, including the portions occupied by the schools.

The orders also prohibit demolition, re-entry, eviction, transfer, charging or other interference with Huelands’ occupation, use and registered proprietary interest in the disputed portions of land.

The dispute revolves around approximately 13.564 acres occupied by Ruaraka High School and Drive-In Primary School, which are situated on LR No. 7879/25.

According to documents filed in the Supreme Court, Huelands and Afrison Export Import Limited maintain that they are the registered proprietors of the larger LR No. 7879/4, measuring approximately 96 acres, which they acquired in 1981 from Joreth Limited.

The applicants argue that the land occupied by the schools was never lawfully surrendered to the Government and that the compensation was legitimate.

They contend that a proposed subdivision scheme dating back to 1982 was eventually cancelled after they rejected conditions requiring surrender of public amenity plots without compensation.

 The applicants say the subdivision was subsequently abandoned and expired.

In 2017, the Government expressed an intention to acquire approximately 13.564 acres hosting the two schools. 

The applicants say the acquisition was undertaken through due process for a negotiated sum of Sh3.2 billion, of which Sh1.5 billion was paid as part compensation.

The applicants are now challenging the Court of Appeal decision before the Supreme Court under Article 163(4)(a) of the Constitution.

They argue that the appellate court erred by holding that private land could become public land through an implied or de facto surrender arising from implementation of a subdivision scheme without a formal surrender instrument, compulsory acquisition or compensation.

The applicants further contend that the Court of Appeal’s interpretation raises significant constitutional questions concerning property rights under Article 40, land registration, planning law and compulsory acquisition.

They are asking the Supreme Court to overturn the July 3 judgment and declare LR No. 7879/4 an indefeasible private title.

They also want the court to find that the portions occupied by the two schools were not surrendered to the Government and that there was no loss of public funds arising from the Sh1.5 billion payment.

EACC, however, has opposed the appeal, urging the Supreme Court to strike it out for want of jurisdiction and arguing that it does not raise a genuine constitutional question warranting determination by the apex court.

In its grounds of objection, the anti-graft agency describes the petition as misconceived, frivolous, and vexatious, and an abuse of the process of the Court, arguing that the applicants are attempting to introduce constitutional issues that were neither pleaded nor determined by the Superior Courts. 

EACC says the dispute was principally factual and concerned whether the 13.5 acres within LR No. 7879/4 had been surrendered as a condition for approval of a subdivision scheme lodged in 1982.

The Commission further argues that the Supreme Court cannot be invited to re-evaluate concurrent findings of fact made by the Superior Courts by recasting evidential disputes as constitutional questions. 

It maintains that surrender and compulsory acquisition are distinct legal concepts, pointing to Article 62(1)(c) of the Constitution, which expressly recognises land transferred to the State through sale, reversion or surrender as public land.

EACC argues that questions surrounding the alleged surrender, the evaluation of documentary evidence, the shifting of the evidential burden, the status of the title and whether compensation was payable are matters of fact and evidence rather than constitutional interpretation or application under Article 163(4)(a).

The Commission has therefore asked the Supreme Court to find the petition incompetent for want of jurisdiction and either strike it out or dismiss it with costs.

The Court of Appeal, however, reached the opposite conclusion on July 3, finding that although Huelands and Afrison remained registered proprietors of the parent title, the portions reserved for the two schools had been validly surrendered to the Government through the approved subdivision process.

The appellate court consequently held that the portions constituted public land, that the National Land Commission had no legal basis to compulsorily acquire them and that the Sh1.5 billion compensation payment was unlawful.

The appeal was dismissed and the Environment and Land Court findings were substantially upheld.

The EACC had moved to recover the Sh1.5 billion after the Court of Appeal decision.

In documents contained in the case record, the anti-graft agency said it would pursue recovery of the money and had completed investigations into possible criminal culpability of public officials and other persons involved in the processing of the compensation.

The EACC said its inquiry file had initially been forwarded to the Director of Public Prosecutions on February 11, 2025, but prosecution action was deferred pending the outcome of the Court of Appeal proceedings.