Gatoto School: Court dismisses stay bid, orders full compliance by August 18

The High Court has dismissed an application seeking to suspend enforcement of a judgment directing the registration of Gatoto Community Primary School as a private, non-profit community-based APBET institution.

Justice Gregory Mutai ruled that the respondents could not seek a similar stay before the High Court after already filing an application before the Court of Appeal.

The judge held that the matter was res sub judice, as the same issue was already pending before the appellate court.

The dispute stems from a judgment delivered on June 12, 2025, declaring Gatoto Community Primary School a non-profit, community-based Alternative Provision of Basic Education and Training (APBET) primary school.

The court also declared the school's conversion and registration as a public school illegal and unconstitutional and quashed its certificate of registration dated October 15, 2024.

It further directed the relevant authorities to register the institution as a private, non-profit APBET school under the ownership and management of the petitioners, using its earlier registration number G/PE/234/2008.

The registration was to be completed within 60 days.

However, the court noted that despite the expiry of the period, the school had not been re-registered and its management had not been handed over.

On July 31, 2026, the Attorney General, representing the respondents other than the fifth respondent, filed an application seeking to suspend implementation of the judgment pending determination of a similar stay application before the Court of Appeal.

The respondents argued that the appellate court was already handling their application and that enforcing the High Court judgment could cause irreparable harm to the school's students.

They also argued that the registration orders could not be implemented because there was no statutory framework governing the registration of APBET schools.

The petitioners opposed the application, arguing that it was barred by the doctrine of res sub judice since the same issue was already before the Court of Appeal.

They further argued that the respondents had failed to demonstrate substantial loss, irreparable harm or public interest considerations, and had not provided security as required under Order 42 Rule 6 of the Civil Procedure Rules.

In dismissing the application, Justice Mutai noted that the respondents had first moved to the Court of Appeal, where their application had been certified urgent, although no interim stay had been issued.

The judge said the two courts could not simultaneously determine similar applications.

“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 said.

The court relied on its earlier decision in Bia Tosha Limited v East Africa Breweries Limited and Others, which held that a party who had sought relief before the Court of Appeal could not return to the High Court over the same issue.

Justice Mutai said allowing such a course would interfere with the hierarchy of courts and could “embarrass the judicial system.”

The judge added that even if the application had been considered on its merits, it would still have failed because it was filed after undue delay and the applicants had not demonstrated that they would suffer substantial loss.

The application dated July 31, 2026, was consequently dismissed, with costs awarded to the petitioners.

The court then turned to implementation of the June 2025 judgment, particularly the planned takeover of the school.

Lawyers for the petitioners told the court that an attempted takeover scheduled for August 13 had not taken place, attributing the failure to the absence of a representative from the Ministry of Education.

The development prompted a sharp exchange in court, with the judge questioning why the takeover had not proceeded when there was no order stopping its implementation.

Justice Mutai observed that neither the High Court nor the Court of Appeal had issued an order staying enforcement of the judgment.

“Therefore, the takeover should have proceeded yesterday,” the judge said.

The court also criticised the conduct of one of the respondents during the proceedings, reminding the parties that they were expected to maintain decorum and comply with court orders.

At one point, the judge said the proceedings had “become a bit of a circus” and expressed frustration over the prolonged dispute.

The fifth respondent, represented by lawyer Mr Nyaberi, later sought a certified copy of the ruling and indicated that he had instructions to seek leave to appeal.He also asked the court to issue a conservatory order to allow the respondent to pursue a stay before the Court of Appeal.

Justice Mutai declined, noting that any party aggrieved by the decision remained free to seek a stay before the appellate court.

“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, to confirm compliance with the earlier judgment and directions.

The judge said the dispute had generated too many court appearances and that it was time for the matter to come to an end.

“I expect that when you appear before me, there will be full compliance with the previous directions of this court,” the judge said.

The court further indicated that relevant individuals, including Deputy Inspector General of Police Eliud Lagat, were expected to attend court in person on August 18, according to the proceedings.

The court will assess the extent of compliance with the June 2025 judgment when the parties return.

About the Author

Rhoda Bogeta is a Kenyan journalist and multimedia storyteller covering current affairs, human-interest, science and environmental stories, with expertise in reporting, photography, videography and digital content creation. Email: rhodabogeta@gmail.com Instagram : i_am_bogetar X : @I_am_Bogetar LinkedIn: Rhoda Bogeta Tiktok : monique.mora_