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ELCPartially AllowedNot stated in the excerpt· [2020] KEELC 1823 (KLR)

GA Insurance Limited v St. Elizabeth Academy - Karen Limited [2020] KEELC 1823 (KLR)

Environment and Land Court
1 July 2020
BEB M Eboso
3,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted an insurer protection from a school's land encroachment and dismissed the school's application because it named the wrong company.

What this practically means

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Executive summary

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GA Insurance Limited, the registered proprietor of LR Number 1159/140 (Original Number 1159/96/5), Dagoretti Road, Karen, sued alleging that the defendant school encroached on the property, excavated and dumped debris, and sought mandatory and permanent injunctions, aggravated damages and mesne profits. Together with the plaint it filed a notice of motion dated 2/4/2020 seeking an interim injunction with police enforcement. The defendant filed a parallel notice of motion dated 27/4/2020 seeking stay, setting aside or review of the ex-parte orders of 7/4/2020, but named GA Life Assurance Limited - a different entity - as respondent. The two applications were canvassed by written submissions. The court disposed of the defendant's application first, finding most prayers spent and the application fatally defective for naming a non-party, observing that no order could issue against GA Life Assurance Limited and none against the plaintiff on that platform. On the plaintiff's application, applying Giella v Cassman Brown, the court found a prima facie case: the plaintiff held a certificate of title and official search, and the transfer had been executed by the defendant's own directors; the defendant's director appeared to have misled the court by exhibiting a title bearing only three entries, conduct the court described as apparent perjury. The court held damages could not adequately indemnify blatant infringement of land rights, satisfying the second Giella limb, and declined to consider balance of convenience. The defendant's application was dismissed; the plaintiff's motion was allowed in terms of prayers 5 and 6, with the defendant to bear costs of both applications.

Key legal issues

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01

Whether orders could issue on the defendant's application naming GA Life Assurance Limited as respondent

Holding

No; the named respondent is not a party to the suit and the plaintiff is not the named respondent, so no order could issue on that application against either entity

Reasoning

The defendant's motion dated 27/4/2020 named GA Life Assurance Limited as respondent, a different legal entity from the plaintiff GA Insurance Limited. Despite the objection being raised, counsel never sought leave to amend. Orders cannot issue against a non-party, nor against the plaintiff on a defective application. The court censured counsel for a casual approach to the point.

p. 3
02

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

Yes; the plaintiff showed a certificate of title, official search, and a transfer executed by the defendant's directors, making it the registered proprietor

Reasoning

The plaintiff exhibited a certificate of title, official search, and a transfer dated 3/3/2013 executed by the defendant's directors Anne Wanjiku Wado and Ayub Kianja Munene, registered on 14/4/2014 as entry 42311/8, for a consideration of Kshs 381,000,000 with National Bank's consent. The defendant's director annexed a title bearing only three entries, omitting subsequent entries, and the court found she appeared to deliberately mislead the court, amounting to apparent perjury.

p. 4
03

Whether damages would be an adequate remedy

Holding

No; blatant infringement of the right to own and enjoy land protected by the Constitution and Section 25 of the Land Registration Act cannot be adequately indemnified by damages

Reasoning

Relying on the second Giella limb, the court held that the constitutional and statutory protection of the right to own and enjoy land means blatant infringement is a violation beyond monetary compensation. The second limb was satisfied, so the court declined to consider the balance of convenience.

p. 4

Legal principles established

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  • No order can issue against a party who is not named as a party to the proceedings or the application
  • The Giella v Cassman Brown principles govern interlocutory injunctions; the court makes no definitive findings at the interlocutory stage

Court orders

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  1. 1.The defendant's application dated 27/4/2020 is dismissed for being defective, spent, baseless and unmerited
  2. 2.The plaintiff's notice of motion dated 2/4/2020 is allowed in terms of prayers 5 and 6
  3. 3.The defendant shall bear costs of the two applications

Authorities

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Legislation

  • Order 1 Rule 10 (2) of the Civil Procedure RulesRule 10(2) - joinder of parties
  • Land Registration ActSection 25
  • Constitution of KenyaProtection of right to own and enjoy land (not numbered in excerpt)

Cases cited (3)

  • Giella v Cassman Brown
    (1973) EA 358
  • George Kimathi Mugenyu v China National Oversees Engineering Corporation
    [2014] eKLR
  • Jenipher Gumba Oyoo v Kenindia Assurance Company Limited
    [2011] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; not expressly invoked in the excerpt

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GA Insurance Limited v St. Elizabeth Academy - Karen Limited [2020] KEELC 1823 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1823/eng@2020-07-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.