The Sh1.5 billion fight over 13.5 acres of land hosting Drive-In Primary School and Ruaraka High School has moved to the Supreme Court, with the Ethics and Anti-Corruption Commission (EACC) asking the judges to bring the case to an end.
EACC is opposing an appeal filed by Huelands Limited and Afrison Export Import Limited, companies linked to the late businessman Francis Mburu. The firms went to the Supreme Court after the Court of Appeal overturned the Sh1.5 billion compensation payment they had been awarded for the land.
The commission says the appeal should be struck out because the companies have not raised a constitutional issue that requires the attention of the Supreme Court.
Instead, EACC says the firms are asking the apex court to go back through evidence and factual findings that have already been considered by two lower courts.
The commission argues that the dispute falls outside the Supreme Court's appellate mandate under Article 163(4)(a) of the Constitution.
"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.
At the centre of the case is the question of what happened to the 13.5 acres after the companies applied to subdivide a larger parcel in the 1980s.
The companies have maintained that they never formally surrendered the land for public use. They argue that there was no registered document that legally transferred or surrendered the property.
They say the courts wrongly treated the approval of a subdivision plan as proof that they had given up their private land.
According to the firms, such an approach effectively allowed compulsory acquisition of their property without compensation, contrary to constitutional safeguards on property ownership.
They have also accused the Court of Appeal of failing to properly apply Article 40(3) of the Constitution, which protects people from having their property taken away unlawfully.
The companies argue that the appellate court did not properly separate ordinary planning rules from compulsory acquisition.
Their position is that private property cannot become public land unless there is a legally recognised process for its transfer, surrender or acquisition.
The firms are therefore asking the Supreme Court to overturn the decisions made by the lower courts and restore their claim for compensation.
They further argue that the National Land Commission (NLC) acted within the law when it began compulsory acquisition proceedings after determining that Drive-In Primary School and Ruaraka High School were occupying privately owned land.
The companies say the NLC also approved additional compensation amounting to Sh1.769 billion, which has not been paid.
EACC has dismissed the attempt to frame the dispute as a constitutional matter, saying the issues now being presented to the Supreme Court were not the questions that formed the basis of the case before the ELC and the Court of Appeal.
The commission says the original case largely involved evidence and facts, particularly whether the companies had surrendered the land as part of the conditions attached to the subdivision scheme submitted in 1982.
EACC says the ELC examined documents presented by both sides before finding that the land had been surrendered.
The Court of Appeal later went through the evidence and reached the same conclusion.
The commission now says the Supreme Court should not be asked to reconsider the evidence relating to the alleged surrender, the manner in which the subdivision scheme was carried out, the value of the documents presented in court or the burden placed on each side to prove its case.
"These matters of fact and evidence that were already determined by the courts do not become constitutional questions purely because constitutional provisions have been cited in the petition," EACC said.
The Court of Appeal had found that the land was surrendered for public use in 1984, meaning the companies could not wait for decades and later return to seek payment for the property.
The judges based part of their decision on correspondence written after the subdivision scheme received approval.
They referred to a letter dated February 20, 1984, from the Director of City Planning to the Commissioner of Lands.
In the letter, the Director asked that sections of the subdivided land which had been set aside for public purposes be transferred to the then Nairobi City Commission.
The Court of Appeal said the letter was evidence that the land had been voluntarily set aside for public use.
The judges also considered the fact that Drive-In Primary School was established on the property in 1984, followed by Ruaraka High School in 1987.
The two companies did not take steps to recover the land during the years that followed, according to the Court of Appeal.
EACC is now asking the Supreme Court to reject the appeal rather than reopen issues that have already been settled by the lower courts.
The commission maintains that simply referring to constitutional property rights does not turn factual questions into constitutional matters and that the companies are effectively seeking another review of evidence that the Supreme Court's appellate jurisdiction does not permit.