Judge orders public school to vacate land in 45 days

The Environment and Land Court has ordered a public primary school in Bomet County to vacate a 10.6-acre land within 45 days.

Justice Mary Oundo directed St Michael's Primary School to surrender the land located in Bomet town, to Bomet Technical Institute Limited.

Judge Oundo ruled that the private technical institute was the legal owner of the land.

"It is hereby declared that the plaintiff (technical institute) is entitled to exclusive right of possession and occupation of the suit property," ruled Oundo.

The judge issued a permanent injunction, restraining the school and its board of directors from continued occupation of the land.

Further, the court ordered the school and its management to pay the institute Sh2 million in general damages and compensation for its wrongful entry into the land.

The court ruled that the private institute proved that it legally leased the land from the government and obtained an allotment letter dated January 17, 1997.

"There was no evidence adduced to the effect that the plaintiff acquired the suit land through fraud or misrepresentation or that its certificate of lease had been acquired illegally," Oundo ruled.

The court noted that the primary school only provided an allotment letter dated April 2, 2012 as a document of ownership.

However, she ruled that a mere possession of letters of allotment do not confer any registered proprietorship of land to the holder.

"Having found as such, the answer to whether the plaintiff is entitled to vacant possession of the suit land is in the affirmative," the court ruled.

According to the court, the primary school illegally invaded the land in 2012, despite knowing the institute was the owner and had also deposited some building material to expand its business.

The court determined that the primary school did not provide any Gazette Notice to prove the land was due for compulsory acquisition by the government or any other body.

"I find that there being no evidence the defendant's (primary school) action of entering into the plaintiff's land and carrying out the impugned activities was unlawful or otherwise illegally sanctioned," she ruled.

The court added: "The defendant's action of forcibly invading the plaintiff's land and creating a new school authorization or consent, constituted a trespass."

The court ruled that because of the trespass, the institute was entitled to a general damage award of the Sh2 million.

The institute, through its lawyer Peter Okiro, submitted that in 1995, it applied for the allocation of the land and in 1997, it received a letter of allotment from the Commissioner of Lands.

Okiro submitted that a Certificate of Lease for 99 years with effect from January 1, 1997, was subsequently issued to the institute, which was then trading as LOMU Investments.

"Construction materials were put on the land for development of the institute, the process of seeking approval was done," averred Okiro.

However, he said that sometime in June 2012 the primary school put a fence alongside the institute's fence and thereafter, started a foundation for a new school.

Okiro noted that despite there being an injunction, the primary school management went ahead to destroy the old school, adjacent to the land, before invading it.

The primary school submitted that it was issued with an allotment letter on April 2, 2012.

"It was normal that public schools sit on public land hence the school was sitting in its rightful place and the private institution did not have permission to sit on the land," the school board submitted.