Ashok Labshanker Doshi & another v County Government of Mombasa & another; National Land Commission (Interested Party); Ali Hassan Joho (Applicant) [2020] KEELC 2970 (KLR)

Order 40 is self-contained: Rules 1 and 2 provide for the grant of injunctions and Rule 3 for the consequences of disobedience. The interim injunction had been issued under Order 40 Rule 1, and the contempt application was expressly brought under Order 40 Rules 3(1) and (3), requiring only a notice of motion in the same suit. The Judicature Act procedure was therefore inapplicable and the defect alleged did not exist.

Relying on Shimmers Plaza Limited v National Bank of Kenya Limited, the court reiterated that personal service is not mandatory where awareness of the order is demonstrated. Since the interim injunction was issued in the presence of counsel for the County Government, all its employees, servants and agents, including the Governor, were deemed aware and bound to obey it. The issue had already been settled in the ruling of 12 February 2020.

The process server was directed to the County Attorney's office where service was acknowledged on the Governor's behalf. The County Attorney's written and oral submissions at the hearing of the 17 May 2019 application expressly addressed whether the Governor had knowledge of the order and should be cited for contempt, demonstrating representation of the applicant. The County Attorney acts within the Governor's control as chief executive of the county.