In the judgment, the three-judge bench upheld the earlier advisory by the Environment and Land Court (ELC), which found that although the two companies remain the registered proprietors of L.R. No. 7879/4, their title is subject to the Government's interest in land reserved for public amenities under an approved subdivision scheme.
The dispute arose after the National Land Commission (NLC) initiated compulsory acquisition proceedings and paid the firms Sh1.5 billion as part of a compensation package for land occupied by the two public schools.
However, investigations by Parliament and the Ethics and Anti-Corruption Commission (EACC) concluded that the land had already been surrendered for public use decades earlier.
In dismissing the appeal, the appellate court found that the developers accepted the benefits of the subdivision approval and could not later deny the obligations attached to it.
"In light of the foregoing, we find no difficulty in affirming the finding of the ELC that there was a valid surrender of the portions occupied by the schools."
The judges noted that the appellants had proceeded with developments under the approved subdivision plan, including the construction of 196 housing units, while the two schools had occupied the disputed land for more than three decades without objection.
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"The appellants stood by for over three decades while the schools were built and operated. They cannot now approbate and reprobate by denying the correlative condition of that approval, namely, the surrender of the sites for the schools. Equity will not permit a party to blow hot and cold."
The companies had argued that they cancelled the subdivision application in 1984 after rejecting conditions requiring them to surrender land free of charge and maintained that no registered instrument of surrender was ever executed.
However, the Court of Appeal held that the evidence demonstrated a de facto surrender, citing correspondence confirming the surrender and subsequent implementation of the subdivision scheme.
The court further ruled that because the land had already become public land through the surrender process, the NLC had no legal basis to compulsorily acquire it.
"The State cannot acquire what it already owns. The purported acquisition was, therefore, without legal foundation. Consequently, the payment of Sh1.5 billion to the appellants was illegal, null, and void. It was money paid under a mistake both in law and fact."
The judgment reinforces that land surrendered for public amenities as part of an approved subdivision cannot later be treated as private property for purposes of compulsory acquisition and compensation, bringing to a close one of Kenya's longest-running and most contentious public land disputes.