Court of Appeal judges withdraw from Visa Oshwal School case

By Lilian Otieno

Two appellate judges have disqualified themselves from hearing an appeal filed by Trustees of Shree Visa Oshwal School, challenging the decision of the high court to deny the trustee the right to own the institution as a private school.

The two, Justice Philip Waki and Justice Patrick Kiage have both cited conflict of interest as their reasons for disqualification.

Justice Waki said lawyer George Oraro now representing the school appears for him in a matter that is still pending in court whereas Justice Kiage says that when he was in private practice he had represented parents in a case against the school.

The two judges had sought from parties whether there was any objection if they proceeded to hear the appeal but the Attorney Generals’ counsel Mr. Martin Mbichire representing Nairobi Senator Mike Mbuvi alias Sonko who is the applicant in the case objected saying there could be a conflict of interest if the two judges presided over the appeal.

It was to be heard by Waki, Kiage and Fatuma Sichale but after consultation over the disclosure of parties, they ordered that a new date be taken with a view of getting a different bench that will exclude the two.

The school was declared a public institution through a judgment issued by the high court on an application filed by Sonko on behalf of the parents.

The trustees were then ordered by the commissioner of lands to surrender the suit property as the land belongs to the government.

They argued that they have been managing the school for a long time and that the notice issued by the commissioner of lands to vacate the suit property should be declared unconstitutional.

While delivering his judgment, Justice Isaac Lenaola who heard the application in the high court dismissed the trustee’s petition saying that the school has been a public property since it was registered. He observed that the trustees had not refuted evidence that the school had always received teachers from TSC and was a recipient of government funds for free primary education

” It was not shown to the  court neither did  they deny it was managed by parents teachers association and that its  headmaster was appointed by  director of city education” Lenaola said.

The court said evidence shows that Cabinet Secretary for Education had indicated the government was ready to compensate them for the buildings they had put up in the school for many years now.




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