Goan community regains control of Sacred Heart Schools in Mombasa

The fate of hundreds of students at Sacred Heart Schools in Mombasa hangs in the balance after the Court of Appeal upheld a decision by the Environment and Land Court (ELC) which ordered that they (schools) be returned to the Goan community.

The Court of Appeal dismissed an appeal by the Catholic Diocese of Mombasa registered trustees challenging the decision of the ELC saying it (appeal) lacked merit.

In 2022, the ELC had ruled that the Goan community owns the schools (nursery, primary and high school) by virtue of being the registered proprietor of the land where they are located and directed that they be returned to the community within a year.

The Goan community had sued the Catholic Diocese of Mombasa registered trustees at the ELC seeking to get back the right to manage Sacred Heart Schools situated along Archbishop Makarios Road in Ganjoni, Mombasa.

It had argued that the schools have been run down and buildings rendered uninhabitable.

The Court of Appeal bench comprising Justices Agnes Murgor, Kibaya Laibuta, and Grace Ngenye-Macharia ruled that the evidence adduced established beyond dispute that the Goan community is the registered proprietor of the land.

“No evidence was produced to show compulsory acquisition, surrender or statutory vesting of that land in the government,” ruled the Court of Appeal on February 20.

It further ruled that in law, the classification of the school as “public” did not displace the Goan community’s ownership of the land or its authority to enter into agreements concerning its use and management.

The appellate court also noted that even under the current Basic Education Act, the presence of a Board of Management, government capitation or Teachers Service Commission’s teachers does not, of itself, vest ownership of land or buildings in the state.

“The Act expressly recognises sponsors and proprietors, including religious and community bodies alongside government oversight. Management structures under the Act are regulatory and supervisory and they do not extinguish proprietary interests,” ruled the Court of Appeal.

The Court of Appeal also ruled that the Catholic Diocese of Mombasa reliance on the evidence of the sub-county Director of Education to demonstrate that the government was managing the school premises did not advance its case.

“If anything, the evidence confirmed government involvement in staffing, funding and regulation but did not establish its (government) ownership of the land or an exclusive right of management overriding the existing private proprietary arrangements,” the Court of Appeal ruled.

It also said that government participation in education, however extensive, does not, convert privately owned land into public property or nullify contractual arrangements lawfully entered into by the registered proprietor.

The appellate court noted that it was clear beyond peradventure that the Sacred Heart School, though operating as a public or assisted school for educational purposes remained situated on privately owned land and was capable of being managed and sponsored pursuant to an agreement dated January 1, 1991.

The Court of Appeal noted that once the management of the school premises was contractually handed over to the Catholic Diocese of Mombasa registered trustees, it assumed a continuing duty both under express and implied terms of the agreement and under the general law to take reasonable care of the premises.

The court heard that by an agreement dated January 1, 1991, the Goan community, Mombasa, handed over the property to the Catholic Diocese of Mombasa registered trustees for purposes of management and sponsorship of the primary and secondary school.

In its appeal, the Catholic Diocese of Mombasa argued that the ELC erred in entering judgement for the Goan community and granting it vacant possession of the school premises when their pleadings and evidence were at variance.

It also argued that ELC erred in finding and holding that the management of the school premises was handed over by the Goan community to it whereas evidence demonstrated that it had already been handed over to the Ministry of Education long before the agreement was executed.

It also argued that ELC had erred in finding that the school premises had dilapidated to justify an order for repair or payment of Sh16 million and also in awarding the amount when particulars of the claim were not specifically pleaded and strictly proved.

The Goan community argued in its submissions that it was not in dispute that the land on which Sacred Heart School is situated belongs to it and that by operation of the common law principle that ownership of land necessarily carries ownership of all buildings and fixtures on it.

It also argued that the agreement was explicit that the management and sponsorship were transferred to the Catholic Diocese of Mombasa and that should it (diocese) opt to relinquish it management would revert to it (Goan community).

The Attorney General opposed the appeal by the Catholic Diocese of Mombasa and urged the Court to uphold the decision of the ELC submitting that it was well reasoned, sound, fair, and just.