Ashok Labshanker Doshi & another v County Government of Mombasa & another [2020] KEELC 3564 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Disobedience of injunction orders by the Governor and the MCA
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.
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.
Admissibility of electronic evidence (CDs of the video evidence)
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.
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.
Service and knowledge of the court order
Personal service was not necessary; knowledge of the order sufficed, and counsel for the defendants were present when the orders were made.
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.
Responsibility of the Governor as Chief Executive of a corporate body
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.
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.
Legal principles established
#- 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
#- 1.The application for contempt is dismissed as against the 2nd respondent, Jaffer Suleiman Mohesh
- 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.The two respondents found culpable are to be given an opportunity to mitigate before sentencing
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.