The High Court has backed a group of nuns in a rare land battle with some priests over the transfer and control of Our Lady of Grace School in Kajulu, Kisumu County.
Justice Samson Okong’o has dismissed a case filed by Our Lady of Grace School Ltd, a firm which sought to compel the Franciscan Sisters of St Ann, Lwak to relinquish ownership and control of the learning institution.
Our Lady of Grace School Ltd is a private company backed by priests who are members of the Dominican Friars, an order of priests and brothers formed in the 13th Century and who initiated the idea of starting a school for the underprivileged children in Kajulu.
The firm had sued the nuns to enforce a trust it claimed was created but never signed on account of an oversight.
It added that the Franciscan Sisters of St Ann, Lwak have over the years defied directives and requests by senior members of the Dominican Friars for transfer of the school to Our Lady of Grace School Ltd.
The nuns denied that an oversight led to the trust not being signed, and added that they were not a party to that trust which was created long after the land was registered to the Franciscan Sisters.
In court, the nuns further claimed that Our Lady of Grace School Foundation Ltd was trying to defraud them and the Dominican Friars of the land.
The land hosting the school sits on two land parcels. Title documents list the Registered Trustees of Franciscan Sisters of St Anne, Lwak as the property owners.
The nuns were in 2008 registered as owners, in trust for the Dominican Friars who initiated the school project.
Cannot transfer ownership to private firm
Behind some centres of worship lies another reality, a battle over who owns the grounds.
Photo credit: Shutterstock
The Franciscan nuns maintained that they cannot transfer ownership of the land and control of the school to a private firm, unless given official instructions from the Catholic Church hierarchy which includes the local bishop.
Despite siding with the nuns, Justice Okong’o ruled that the firm backed by Dominican Friars had a genuine complaint against the nuns which was taken to court in good faith.
He held that Our Lady of Grace School Foundation Ltd’s only folly was failing to provide evidence that Dominican Friars had transferred their beneficial interests in the land and school to the private firm.
“What I have before me are just correspondence from different members of the Dominican Friars. I do not doubt from the said correspondence that there was an intention by the Dominican Friars to have the suit properties transferred to the Plaintiff (Our Lady of Grace School Foundation Ltd) and that the 1st Defendant (Registered Trustees of Franciscan Sisters of St Ann, Lwak) has no valid reason for refusing to effect the transfer,” the judge said.
“What is missing is a legally binding agreement or instrument between the Dominican Friars and the plaintiff transferring their beneficial interest in the suit properties…In the absence of such an agreement or instrument conferring upon the Plaintiff an interest in the suit properties that would in turn create a trust relationship between it and the 1st Defendant, only the Dominican Friars could bring a suit to enforce the duties owed to it by the 1st Defendant as a trustee of the suit properties,” the judge added.
The school was the idea of Father Martin Martiny, who had been in Kenya for seven years when the 2007-2008 post-election violence broke out.
The effect of the violence on young children inspired him to rally the Dominican Friars and other orders within the Catholic church to pool funds for the construction of a school that would educate derprivileged children in Kajulu.
Fr Martiny’s call was in 2008 answered by the School Sisters of Notre Dame in Canada and other donors, who contributed Sh20 million that was used to buy four land parcels, two of which host the school.
The Dominican Friars’ headquarters in New York, however, did not want to directly own or control the school. It also denied a request from the Dominican Friars of Eastern Africa to own and operate the school.
The New York headquarters did not want its local arm exposed to the legal liability that comes with owning or operating a learning institution. It was then agreed that the Franciscan nuns would own the land and school in trust for the Dominican Friars, who tasked Fr Martiny with looking for a suitable entity to take over the learning institution, but on behalf of the Catholic Church.
Our Lady of Grace School Foundation Ltd sued the Registered Trustees of Fransiscan Sisters of St Ann, Lwak in 2020 after the nuns refused to transfer ownership of the land and school to the firm.
The firm listed Sister Juliana Akumba Misore – the Franciscan nuns’ Mother Superior at the time – as the second defendant.
By the time the case came up for hearing, Sr Mary Aoko Atwalla had replaced Sr Misore and took over the court testimony.
The Franciscan nuns maintained that they were only willing to transfer the title deeds to the Dominican priests’ local arm, the Dominican Friars of Eastern Africa, and not a private company.
Before the case was filed, the nuns stood firm despite being instructed by various Dominican Friars to transfer the ownership to Our Lady of Grace School Foundation Ltd.
Fr Ken Letoile, a New York-based priest and a Dominican Friar, was the first to ask the nuns to do the ownership transfer in November, 2017. Fr Martiny later made similar requests.
In March, 2019 Fr Gideon Muchira, the head of the Domincan Friars’ Eastern Africa chapter, also asked the Franciscan nuns to transfer the school to Our Lady of Grace School Foundation Ltd.
Sr Atwalla declined to do the transfer, maintaining that it would go against Catholic Church laws on transfer of properties, and that she did not know who the private company was.
Business Registration Service records show that Our Lady of Grace School Foundation Ltd has five directors, none of whom is allocated any shares.
Americans Robert Hampton Clay, John Marcus Carroll and Carmen Garrett Armistead are among the directors.
Two Kenyans – Dorothy Mapenzi Shiroya and Daniel Ochieng Okweh – are the other directors.
In 2018, the Dominican Friars engaged lawyer Anthony Gross as they sought to incorporate a foundation that would take ownership and control.
Mr Gross informed the priests that he had a dormant company that they could transform into the foundation. The company was Libra Institute, and the new directors changed its name to Our Lady of Grace School Foundation on May 29, 2018.
Our Lady of Grace School Foundation Ltd told the court that neither the Dominican Friars nor the Franciscan Sisters wanted to run the school and that it was agreed that the nuns would hold ownership in trust, until Fr Martiny found a suitable entity to take over.
Fr Martiny told the court that he was for transferring the ownership and control of the school to the private firm, as long as the institution would remain an initiative of the Catholic Church, but which is open to vulnerable children from other denominations.
Our Lady of Grace School Foundation Ltd had said that the local bishop consented to the transfer, but that his approval was not put in writing.
