The High Court has lifted orders barring the Education ministry from closing a private school in Nairobi's Dagoretti over safety concerns.
Justice Jairus Ngaah ruled the proprietor of St Charles Mutego Educational Center, Mutuini, withheld crucial information from the court to secure orders stopping authorities from shutting the institution on January 7, last year.
The judge said the school's owner, Charles Nyamote, misled the court that he had not been notified about the inspection of the school by ministry officials who ordered it shut as it posed a danger to pupils.
Through the Nairobi Regional Director of Education Jared Obiero, the ministry told the court the injunction perpetuated an illegality as the learners at the school were exposed to danger as long as the court order remained in force.
Mr Obiero said the closure of the school was to ensure safety of the students. He stated that following the collapse of buildings at Talent Academy in which 80 learners died the ministry initiated an audit of all schools to assess their safety.
The assessment conducted at St Charles Mutego Educational Centre in November 2019 had revealed contravention of the provisions of the Basic Education Act and the safety guidelines.
Mr Obiero told the court most of the buildings in the school were in 'a deplorable condition.'
For instance, the classrooms and dormitories were deemed unsafe as their upper floors were sagging apparently because they were supported by wood rather than steel.
There were naked electricity cables that posed a danger to the students.
The school compound was littered with hazardous material and the water tanks were not secured. They were only covered with iron sheets.
With these findings, it was recommended that the school be closed and the proprietor was to apply afresh for registration. The school was only to be reopened after meeting the required standards. A report to this effect was made.
A second assessment was undertaken in February last year after a section of the perimeter wall collapsed.
The second report also recommended the closure of the school over safety concerns.
However, the court on January 7, last year, suspended the ministry's directive to close down the school.
But Mr Obiero returned to court seeking to have the orders set aside pending determination of the case filed by the school's owner, Charles New Nyamote.
Mr Obiero said the orders were granted without giving the Ministry a hearing contrary to the dictates of natural justice.
Justice Ngaah allowed the application and set aside the orders, saying there was material non-disclosure of facts when the court granted the orders.
He said there was no basis to doubt the truthfulness of the senior education official while challenging the ex-parte orders.
The judge found that the owner of the school was aware of the inspection undertaken by ministry at his school as early as November 2019.
The inspection was done in the presence of the school head, Erick Mweresa. The teacher did not swear any affidavit to deny that the inspectors were in the school in November 2019 or that they carried out an inspection to ascertain the safety of the school's infrastructure.
"If the inspection is not denied, it cannot also be denied that a report on the inspection was made and that the school was ordered closed based on the recommendations in the report. It has also emerged that the school was audited, not once but twice, and on each of these occasions it was established not to be safe for use by the learners," said justice Ngaah.
He ruled that it cannot be true that the school owner only came to learn of the closure of the school from a parent who was desperate to get back his refund after he learned of the closure.
The judge said the proprietor was all along aware that the safety standards of his school was under scrutiny by the ministry and, therefore, contrary to what he informed the court when his application was heard ex parte, the closure order was neither drastic nor a surprise.
"It is trite that suppression or non-disclosure of material facts in an ex parte application would automatically result to setting aside of any order that the applicant may have obtained and which he has taken advantage of," ruled justice Ngaah.