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ELCPartially AllowedNot stated in the judgment as supplied (instituted by plaint filed December 17, 2002; further amended plaint filed May 31, 2019)· [2022] KEELC 2 (KLR)

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)

Environment and Land Court
2 February 2022
9,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, trustees of The Goan Community, Mombasa, sued the Catholic Diocese of Mombasa and the Attorney General seeking termination of a 1991 management/sponsorship agreement, vacant possession of Mombasa/Block XXII/31 on which Sacred Heart School stands, Kshs 16,052,000/= in repair costs, an injunction and costs. They alleged the Diocese breached the agreement by failing to deliver the kindergarten, allowing the property to deteriorate and ceding the school to the Government without consent. The defendants contended the school was a public school run by Government since 1967, leaving the Community with no interest. The court found the Community's freehold title undisputed. Tracing the Education Ordinance 1952, the Education Act 1968 and the Basic Education Act 2013, it held that although the school was a 'public school' by reason of Government assistance and TSC teachers, it was never a Government school nor Government-owned; it was an aided, later assisted, school established by a voluntary body. The 1991 agreement was a revocable licence; no term permitted the Diocese to cede control to the Ministry, so its doing so, and its denial of the kindergarten, constituted breach. The Diocese was liable for repairs under contract, implied term and negligence. The court ordered vacant possession within 12 months, repairs per the valuation report within that period or damages of Kshs 16,052,000/= (or the extent left undone), good-faith transition talks, costs against the 1st defendant, and no costs order against the Attorney General.

Key legal issues

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01

Ownership of the suit land

Holding

The Goan Community is the registered freehold proprietor of Mombasa/Block XXII/31; the title is unencumbered, undisputed and unchallenged.

Reasoning

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.

p. 12
02

Status of the Sacred Heart School(s)

Holding

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).

Reasoning

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.

p. 14
03

Breach of the 1991 agreement

Holding

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.

Reasoning

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.

p. 17
04

Liability for repairs and damages of Kshs 16,052,000/=

Holding

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).

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The 1st defendant to bear the plaintiffs' costs of the suit
  5. 5.No order for or against the 2nd defendant (Attorney General) in respect of costs

Authorities

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Legislation

  • Societies ActNot specified
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 24; Act No. 3 of 2012
  • Education Ordinance of 1952Categories of Government, public and aided schools
  • Education Act, Cap 211 (Repealed)Sections 2, 6, 8, 10, 11; commenced February 6, 1968
  • Teachers Service Commission Act, Cap 212Section 4(3)
  • Education (Board of Governors) OrderSection 2 and Schedules 1 and 2 (under the Education Act, 1968)
  • Basic Education Act, Act No. 14 of 2013Sections 2, 27, 43(1)(a), 43(1)(b), 55, 56, 59
  • Evidence ActSection 7 (burden of proof)

Cases cited (8)

  • Famy Care Limited vs Public Procurement Administrative Review Board and Others, Nairobi Petition No. 43 of 2012
  • Shree Visa Oshwal Community Nairobi Registered Trustees vs. Attorney General & 3 others [2014] eKLR
    [2014] eKLR
  • Arya Pratinidhi Sabha Eastern Africa vs Attorney General being sued on behalf of the Republic of Kenya for and on behalf of the Hon Minister for Education [2011] eKLR
    [2011] eKLR
  • Cumberland Consolidated Holdings Limited vs Ireland [1946] KB 264
    [1946] KB 264 at 270
  • Gitonga Wambugu Kariuki & 2 others vs Eliud Timothy Mwamunga [2018] eKLR
    [2018] eKLR
  • The Arya Pratinidhi Sabha Eastern Africa vs The Honourable Attorney General, Nairobi High Court, Petition No 225 of 2008 (The Parklands Arya Girls High School case)
    Petition No. 225 of 2008
  • Shree Visa Oshwal Community & Another vs The Attorney General & 3 Others, Court of Appeal at Nairobi, Civil Appeal No 126 of 2014
    Civil Appeal No. 126 of 2014
  • Albert Ekirapa & 9 others on behalf of themselves and the Parents Association (School Committee) of Aga Khan Primary School, Nairobi vs Aga Khan Foundation & Another [2019] eKLR
    [2019] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.