Court orders Mombasa County to keep off Frere Town Primary School land
Justice Nelly Matheka of the Environment and Land Court said the school's land was not available for allocation because it is a public property within the meaning of the Lands Act.
The High Court in Mombasa has ordered the Mombasa County Government to keep off the Frere Town Primary school land.
The land had been reserved for expansion of the school and use as a playground and the school reached out to the Nyali Constituency Fund (CDF) to fence the school's land to lock out vagabonds.
However, the county government stopped the construction of a perimeter wall in 2021 prompting the school's board of management to sue the county government.
Justice Nelly Matheka of the Environment and Land Court said the school's land was not available for allocation because it is a public property within the meaning of the Lands Act.
The school's management had told the court that the land was allocated to the school by the defunct Municipal Council of Mombasa for co-curricular activities and future expansion.
After hearing the matter, Justice Matheka said it is a finding of fact that Frere Town Primary is a public school which is over 60 years old and the children have used the said land as their playground.
"I find the suit land falls within the land that was planned for a playing field for the Plaintiff school. The school being a public institution, the land it occupies and utilizes as a playing field is therefore public utility and is not available for allocation," stated Justice Matheka.
The school said that owing to its location, various individuals, some of whom are drug addicts, have been roaming around the school's fence thus putting the pupils at risk of falling into the risk of drug addiction either actively or passively.
The school made a request to the area Member of Parliament (MP) to help the school put up a perimeter wall around the school's land and carry out landscaping of the football field at the school.
However, while the construction of the perimeter wall was ongoing, the Mombasa County government's Inspectorate Department stopped the contractor, inhibiting the contractor from building the wall.
The county stopped the construction on May 12, 2021.
However, the county argued that if any development was carried out by the school, the same was without the express authority of the county government in contravention of the Physical and Land Use Planning Act.
The County argued that the contractor broke the law and commenced development without development permission from the county government.
Justice Matheka said that she considered the evidence and the submissions placed before her and the fact that the Mombasa County Government did not call any witnesses.
She also considered that the Principal of the school testified that parts of the school's land were fully developed while the rest were reserved for the school's co-curricular activities and future expansion.
"The school made plans to put up a perimeter wall around (the land) using the National Government (NG-CDF) to secure the same and ward off unwanted characters from the school but were stopped by the Defendant (the Mombasa County government)," the judge said.
"Indeed the plaintiff produced a letter from the then Municipal Education Officer to the Town Clerk dated December 11, 2006 on the illegal annexation of school land Town Primary School, Mainland North, asking him to identify the perpetrators and stop them."
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