The High Court has declined to suspend the implementation of orders issued in the long-running dispute over Gatoto Community Primary School, paving the way for enforcement of a 2025 judgment that directed the institution’s registration as a private, non-profit community-based APBET school.
The court dismissed an application filed by the respondents seeking temporary protection from enforcement while a similar application remains pending before the Court of Appeal.
In its ruling, the court found that the respondents could not pursue parallel stay applications before the High Court and the Court of Appeal over the same subject, holding that the matter before it was caught by the doctrine of res sub judice.
The dispute stems from a judgment delivered on June 12, 2025, which recognised Gatoto Community Primary School as a non-profit, community-based Alternative Provision of Basic Education and Training institution.
The court had also found the school’s conversion and registration as a public institution to be illegal and unconstitutional and subsequently quashed the certificate of registration issued on October 15, 2024.
Among the orders issued was a directive requiring the relevant education authorities to register Gatoto as a private, non-profit APBET school under the ownership and management of the petitioners. The registration was to be carried out using registration number G/PE/234/2008 within 60 days.
The court noted that the deadline had since passed without the school being re-registered or its management being handed over as directed.
The respondents subsequently moved to court seeking to stop implementation of the judgment pending the determination of their application before the Court of Appeal.
They argued that enforcing the judgment before the appellate court determined their application could result in irreparable harm, particularly to pupils at the institution.
They also maintained that there were difficulties in implementing the registration order, with an affidavit filed in support of their application claiming that there was no statutory framework governing the registration of APBET schools.
The petitioners opposed the application, arguing that the respondents had already sought similar relief at the Court of Appeal and could not return to the High Court seeking another stay.
They further argued that the respondents had not satisfied the legal requirements for a stay, including demonstrating substantial loss or irreparable harm and providing security.
The judge agreed with the petitioners, noting that the Court of Appeal application had been lodged first and had already been certified urgent.
Although the appellate court had not granted an interim stay, the High Court held that this did not give the respondents a basis to seek an identical order from the lower court.
“I am not persuaded that the respondent applicants, having filed an application at the Court of Appeal, can now come back for a temporary stay where the Court of Appeal does not issue an interim stay,” the judge ruled.
The court relied on its earlier decision in Bia Tosha Limited v East Africa Breweries Limited and others, where it held that a party who had already approached the Court of Appeal over an issue could not return to the High Court seeking similar relief.
The judge said allowing such a process would undermine the established hierarchy of the courts and potentially “embarrass the judicial system.”
The court added that the application would have failed even if it had been considered on its merits, citing the delay in bringing it and the failure by the applicants to demonstrate that they would suffer substantial loss.
The application dated July 31, 2026, was consequently dismissed, with the petitioners awarded costs.
Attention then shifted to the enforcement of the June 2025 judgment, following concerns over an unsuccessful attempt to take over the school.
Lawyers for the petitioners told the court that the planned takeover on August 13 did not proceed, with the absence of a Ministry of Education representative cited as one of the issues.
The explanation drew criticism from the bench, with the judge questioning why the exercise had not gone ahead when there was no order suspending the implementation of the judgment.
“Therefore, the takeover should have proceeded yesterday,” the judge said.
The court also expressed frustration with the prolonged proceedings, with the judge describing the matter as having “become a bit of a circus” and stressing the need for the dispute to be brought to a conclusion.
Counsel for the fifth respondent, Mr Nyaberi, told the court that his client intended to seek a certified copy of the ruling and leave to appeal. He also sought a conservatory order to allow the respondent to pursue a stay at the Court of Appeal.
The request was not granted.
The judge told the parties that anyone dissatisfied with the ruling remained at liberty to seek relief from the Court of Appeal.
“My concern and the concern of this court and my duty, is to ensure that that judgment is enforced, whether or not I agree with it, whether or not I think it was the right decision,” Justice Mutai said.
The court directed the parties to return on August 18, 2026, when compliance with the earlier judgment is expected to be addressed.
The judge said the matter had already resulted in numerous court appearances and made clear that the court expected the parties to comply with the existing orders.
“I expect that when you appear before me, there will be full compliance with the previous directions of this court,” the judge said.
The August 18 appearance will therefore determine whether the directives issued in June 2025 have finally been implemented.
