Pereira & 2 others (Suing as the trustees of the Goan Community, Mombasa) v Catholic Diocese of Mombasa Registered Trustees & another (Environment and Land Case Civil Suit 448 of 2002) [2022] KEELC 2 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed the Goan Community owns the Sacred Heart School land and ordered the Catholic Diocese to hand it back within 12 months.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit land
The Goan Community is the registered freehold proprietor of Mombasa/Block XXII/31; the title is unencumbered, undisputed and unchallenged.
The court found the title deed undisputed and unchallenged by either the Catholic Diocese or the Government. Section 24 of the Land Registration Act vests absolute ownership in the registered proprietor, including the right to licence use of the land and to terminate such licence. The 1991 agreement was precisely such a licence, revocable by the owner.
Status of the Sacred Heart School(s)
The school is a 'public school' in the sense of being Government-assisted, but it is not a Government school and was never Government-owned; it was an 'aided school' under the 1952 Ordinance and later an 'assisted school' under the Education Act 1968, established by a voluntary body (The Goan Community).
Tracing the 1952 Education Ordinance, the 1968 Education Act and the Basic Education Act 2013, the court held that Government assistance (grants, TSC teachers) made the school 'public' without transferring ownership. The March 7, 1991 minutes showed the Community paying non-teaching staff and running the kindergarten, confirming aided/assisted status. Government ownership was never established, and the certificates of registration did not vest ownership in the State.
Breach of the 1991 agreement
The Catholic Diocese breached the agreement by denying The Goan Community the kindergarten, by ceding control and management of the school to the Ministry of Education without any term permitting it, and by failing to hand back the property and sponsorship upon revocation.
The agreement was in the nature of a licence with defined terms and Clause 8 requiring reversion to The Goan Community upon relinquishment. No term authorised ceding control to the Ministry. The termination letter of September 27, 2002 validly revoked the licence, requiring the Diocese to hand over the property and assets under Clause 8, which it never did.
Liability for repairs and damages of Kshs 16,052,000/=
The Catholic Diocese is liable for the repairs; it must carry out the repairs in the valuation report within the 12-month period or pay Kshs 16,052,000/= (or the extent left undone).
Liability was not seriously contested. Management had been handed to the Diocese, creating a duty of care under the contract, implied term and the 'neighbour principle' in negligence. The claim was specifically pleaded and proved by the Quantity Surveyor's itemised report, and the premises were assumed to have been in good repair at handover absent contrary evidence.
Legal principles established
#- A school assisted by Government funds or TSC teachers is a 'public school', but that does not make it Government-owned; the registered proprietor of the land retains proprietary rights, including the right to licence and terminate a licence over the school.
- Registration of a person as proprietor of land vests absolute ownership, including the right to permit or licence use of the land and to terminate such permission (section 24, Land Registration Act).
- A licensee handed over management of a school property owes a duty of care to maintain the property and is liable for damage whether under the contract, implied term, or the law of negligence.
Court orders
#- 1.Vacant possession of the suit property to be granted to the plaintiffs within, and no later than, 12 months from the date of judgment
- 2.The parties to engage in good faith on how the school and the land are to be handed over to The Goan Community to ensure a smooth transition
- 3.Within the 12-month period, the Catholic Diocese of Mombasa to undertake the repairs outlined in the Valuation Report produced by PW-2; failing which it will be liable to the extent of Kshs 16,052,000/= or to such extent as may be left undone at handing over
- 4.The 1st defendant to bear the plaintiffs' costs of the suit
- 5.No order for or against the 2nd defendant (Attorney General) in respect of costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title to and possession of land (Mombasa/Block XXII/31); judgment cites section 24 of the Land Registration Act, Act No. 3 of 2012 and article 40 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pereira & 2 others (Suing as the trustees of the Goan Community, Mombasa) v Catholic Diocese of Mombasa Registered Trustees & another (Environment and Land Case Civil Suit 448 of 2002) [2022] KEELC 2 (KLR)", Case Analysis (2022). Not stated in the judgment as supplied (instituted by plaint filed December 17, 2002; further amended plaint filed May 31, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.