Ekirapa & 9 others (Suing on Behalf of Themselves and the Parents Association (School Committee) of Aga Khan Primary School, Nairob) v Aga Khan Foundation & another (Environment and Land Case 455 of 2008) [2019] KEELC 509 (KLR)

The court examined the earlier judicial review proceedings brought by officials of the same Parents Association challenging the Minister's directive. That application was dismissed for failure to seek or establish judicial review grounds. The ownership of the Suit Property and the question whether the School is public or private were not substantially in issue in those proceedings, so the res judicata plea by the 2nd Defendant failed.

The Defendants pleaded that the cause of action was extinguished 12 years after the grant was issued. The court held that the dispute between the parties arose in 2001 with the threatened privatisation and withdrawal of support, and that the claim flowed from that dispute rather than from the 1951 grant itself.

Applying Sections 24(b) and 25 of the Land Registration Act, the court held that the registered leasehold interest vests subject to the encumbrances, conditions and restrictions on the register. The special conditions (use for education of both sexes, standards prescribed by the Education Ordinance/Act, satisfaction of the Director of Education) bind the 1st Defendant, but the court found the Plaintiffs had not proved that the land was public land or held in trust, nor fraud in the transfer.

The repealed Education Act defined a public school as one maintained or assisted out of public funds and an assisted school as one receiving financial assistance from the Ministry or TSC. Documentary evidence of grants-in-aid letters from the Director of Education in 1959-1960 referring to the School as an aided school, together with TSC teachers, brought the School within the definition of an assisted, and hence public, school.

The court found both sides had wrestled over the School's financial management, which should have been handled under the statutory framework. Since the Basic Education Act, 2013 repealed the Education Act and gives effect to Article 53 of the Constitution, it now governs standards and management, with the sponsor playing the role prescribed by Section 27 and the Parents Association only the role in the Third Schedule.

The 2nd Defendant argued the Plaintiffs, no longer parents, had no locus. The court noted Aroni J had held the Plaintiffs could sue as parents; the Plaintiffs' witness testified he still had two children at the School, and the Defendants, with access to school records, adduced no rebuttal evidence.