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ELCPartially AllowedApplication dated 17 May 2019 (suit concerning land parcel MN/VI/3458, Changamwe)· [2020] KEELC 3564 (KLR)

Ashok Labshanker Doshi & another v County Government of Mombasa & another [2020] KEELC 3564 (KLR)

Environment and Land Court
12 February 2020
4,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Mombasa court found Governor Joho and an MCA guilty of defying a court order protecting private land, and ordered them to pay the legal costs personally.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Munyao Sila J) determined a contempt application dated 17 May 2019 seeking the committal of Governor Ali Hassan Joho, Chief Officer Jaffer Suleiman Mohesh, and MCA Benard Ochieng Ogutu to civil jail for six months for disobeying interim injunction orders issued on 6 March 2019 and extended on 9 April 2019, restraining the defendants from visiting, invading or demolishing structures on land parcel MN/VI/3458 in Changamwe pending hearing of the plaintiffs' application. Supporting affidavits by the 1st plaintiff and security guards deposed that on 10 May 2019 the Governor and the MCA led a crowd that broke down and removed the gate and held a public rally, and that on 12 May 2019 a county bulldozer demolished part of the boundary wall. The court held the objection to the electronic evidence under Section 106B of the Evidence Act came too late, having been raised only at submissions. It applied Shimmers Plaza Limited v National Bank of Kenya Limited to hold that personal service was unnecessary since counsel were present when the orders were made. The court found Joho and Ogutu guilty of disobedience, holding political office-holders responsible for the actions of those acting on their behest, but exonerated Mohesh, who was on suspension and did not visit the property. The application was dismissed against Mohesh but allowed against Joho and Ogutu; sentencing was deferred for mitigation, with costs borne personally by Joho and Ogutu jointly and/or severally.

Key legal issues

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01

Disobedience of injunction orders by the Governor and the MCA

Holding

Ali Hassan Joho and Benard Ochieng Ogutu were guilty of disobeying the injunction orders by visiting the suit property and presiding over acts of vandalism; Jaffer Suleiman Mohesh was exonerated.

Reasoning

The orders of 6 March and 9 April 2019 restrained the defendants from visiting, invading or trespassing on the suit property. Affidavits of the security guards gave consistent personal accounts that the Governor and the MCA were present on 10 May 2019 and that demolition followed. Joho swore no replying affidavit and did not deny presence or incitement; Ogutu did not deny being present on 10 May. Their presence alone breached the injunction.

p. 4
02

Admissibility of electronic evidence (CDs of the video evidence)

Holding

The objection under Section 106B of the Evidence Act came too late, having been raised only at submissions after the court had viewed the videos.

Reasoning

The court held that a party objecting to the admissibility of evidence must do so before the evidence is presented, and may seek expungement or a mini trial-within-a-trial. No such objection was taken before the videos were played in court, so it was too late to contest admissibility at the submissions stage. In any event, the affidavits of Wasonga and Mwendwa independently established the events.

p. 4
03

Service and knowledge of the court order

Holding

Personal service was not necessary; knowledge of the order sufficed, and counsel for the defendants were present when the orders were made.

Reasoning

Relying on Shimmers Plaza Limited v National Bank of Kenya Limited, the court adopted the position that where an advocate appears in court when orders are made, the client is deemed aware of them. Counsel for the 1st and 2nd defendants were present on 6 March and 9 April 2019, so the respondents could not claim ignorance of the injunction.

p. 4
04

Responsibility of the Governor as Chief Executive of a corporate body

Holding

Although not individually named as a defendant, the Governor was culpable because he personally visited the site and acted as Chief Executive of the 1st defendant.

Reasoning

A corporate body acts through the agency of persons. The Governor, as Chief Executive, visited the property and was present when the vandalism occurred; his acts must be deemed the acts of the County Government, and he cannot escape personal responsibility for disobedience he himself undertook.

p. 4

Legal principles established

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  • Personal service of a court order is not a prerequisite for contempt proceedings; knowledge of the order suffices, and presence of counsel when the order is made infers knowledge by the client.
  • Objection to the admissibility of electronic evidence must be raised before the evidence is presented, not at the submissions stage after the court has seen and heard it.
  • Political office-holders are responsible not only for their own acts of disobedience but also for the actions of people who act on their behest and call.

Court orders

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  1. 1.The application for contempt is dismissed as against the 2nd respondent, Jaffer Suleiman Mohesh
  2. 2.The application for contempt is allowed as against Ali Hassan Joho and Benard Ochieng Ogutu, who are held guilty of disobedience of the court orders of 6 March 2019 and 9 April 2019
  3. 3.The two respondents found culpable are to be given an opportunity to mitigate before sentencing
  4. 4.Costs of the application to be borne personally by Mr. Joho and Mr. Ogutu jointly and/or severally, taxable at any time without waiting for the conclusion of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 3(1), (2) and (3)
  • Environment and Land Court ActSection 29
  • Evidence Act, Cap 80Section 106B
  • Constitution of Kenya, 2010Article 159(1)
  • Civil Procedure Rules, 2010Order 51 Rule 13

Cases cited (3)

  • Ndwiga Steve Mbogo vs Independent Electoral and Boundaries Commission & 2 Others
    (2017) eKLR
  • William Odhiambo Oduol vs The Independent Electoral and Boundaries Commission & 2 Others
    (2013) eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    (2015) eKLR
Jurisdiction invoked
Order 40 Rules 3(1) and (3) of the Civil Procedure Rules, 2010; Section 29 of the Environment and Land Court Act; Article 159(1) of the Constitution

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, "Ashok Labshanker Doshi & another v County Government of Mombasa & another [2020] KEELC 3564 (KLR)", Case Analysis (2020). Application dated 17 May 2019 (suit concerning land parcel MN/VI/3458, Changamwe). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3564/eng@2020-02-12

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