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ELCOtherELC Case No. 33 of 2019· [2021] KEELC 3215 (KLR)

Ashock Labshanker Doshi & another v County Government of Mombasa & 2 others, Benard Ochieng Ogutu & Ali Hassan Joho (Environment & Land Case 33 of 2019) [2021] KEELC 3215 (KLR)

Environment and Land Court of Kenya
21 May 2021
MSMunyao Sila
3,037 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court fined Mombasa's Governor for disobeying a court order, confirming judges can choose fines instead of jail in contempt cases.

What this practically means

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Executive summary

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This is a ruling on sentencing following a finding of contempt of an interim order of injunction issued by the Environment and Land Court at Mombasa in a suit over land parcel L.R. No. MN/VI/3458 in Changamwe. On 12 February 2020 the court found Benard Ochieng Ogutu, an MCA, and Ali Hassan Joho, the Governor of Mombasa County, guilty of violating the injunction by visiting the suit land and leading a crowd that destroyed the wall, gate and other property; a third respondent, Jaffer Suleiman Moshesh, was found not culpable. On sentencing, the court identified the applicable regime as Section 63(c) of the Civil Procedure Act, Order 40 Rule 3 of the Civil Procedure Rules, and Section 29 of the Environment and Land Court Act, the latter permitting a fine of up to Kshs. 20 million or imprisonment of up to two years. Rejecting the plaintiffs' submission that only a six-month custodial sentence was available, the court held it had discretion to impose a fine, drawing on the Supreme Court's Muruatetu decision against mandatory sentences and Section 26(3) of the Penal Code. Taking mitigation into account, Ogutu was fined Kshs. 20,000 with 14 days imprisonment in default, while Joho, whose mitigation the court dismissed as absurd and lacking remorse, was fined Kshs. 250,000 with 60 days imprisonment in default and ordered to personally pay for damage to the plaintiffs' property. Warrants of arrest were issued against both respondents in default of payment. The ruling also carries strong exhortations on leadership and obedience of court orders over land.

Key legal issues

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01

Applicable sentencing regime for disobedience of an injunction order issued by the Environment and Land Court

Holding

The sentencing regime comprises Section 63(c) of the Civil Procedure Act, Order 40 Rule 3, and Section 29 of the Environment and Land Court Act, the latter permitting imprisonment up to 2 years and a fine up to Kshs. 20 million.

Reasoning

The court observed that Section 63(c) allows committal to prison and attachment of property but prescribes no term; Order 40 Rule 3(1) caps imprisonment at six months; Section 29 of the ELC Act applies because the disobeyed order was issued by the ELC and permits heavier penalties. The court reasoned that the heavy penalty in Section 29 reflects the seriousness with which Kenyans treat violations of orders touching proprietary rights, given the country's difficult land history.

p. 2
02

Whether the court may impose a fine notwithstanding that Order 40 Rule 3(1) provides only imprisonment

Holding

The court has discretion to impose other forms of punishment including fines; a fine is not barred.

Reasoning

Rejecting the plaintiffs' counsel's submission that the only permissible sentence was six months' imprisonment with no fine, the court relied on the Muruatetu principle that courts are not bound by mandatory sentences, and on Section 26(3) of the Penal Code allowing a fine in substitution for or in addition to imprisonment, holding these general principles applicable to civil contempt sentencing.

p. 3
03

Assessment of mitigation and individual sentencing of the two respondents

Holding

Ogutu, being remorseful, was fined Kshs. 20,000 with 14 days imprisonment in default; Joho, showing no remorse and holding the office of Governor, was fined Kshs. 250,000 with 60 days imprisonment in default, plus personal liability for damage to the plaintiffs' property.

Reasoning

The court rejected Joho's mitigation claiming ignorance of the order as absurd and spurious since he was represented by counsel throughout. It emphasised that leaders, especially a Governor, must lead from the front in respecting court orders, and that much is expected from holders of such offices. Ogutu's expression of remorse and first-offender status attracted leniency.

p. 3

Legal principles established

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  • A court is not bound to impose the mandatory sentence provided in statute and has discretion to mete out other forms of punishment including fines in contempt proceedings.
  • General sentencing principles applicable in criminal matters are also applicable to sentencing for disobedience of orders in civil litigation.

Court orders

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  1. 1.Mr. Benard Ochieng' Ogutu sentenced to a fine of Kshs. 20,000/= and in default a sentence of 14 days
  2. 2.Mr. Ali Hassan Joho sentenced to a fine of Kshs. 250,000/= and in default imprisonment for 60 days
  3. 3.Mr. Joho to personally pay any damage and loss that the plaintiffs may have incurred as a result of destruction of the suit property
  4. 4.Warrants of arrest issued to be executed by the County Police Commander, Mombasa County, to arrest and commit the respondents to Shimo La Tewa Prison unless they demonstrate payment of the fines

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 63(c)
  • Civil Procedure Rules, 2010Order 40 Rule 3(1)
  • Environment and Land Court Act, Act No. 19 of 2011Section 29
  • Penal CodeSection 26(3)
  • Penal CodeSection 204
  • Constitution of KenyaArticles 25(c), 28, 48 and 50(1) and (2)(q)

Cases cited (3)

  • Francis Karioko Muruatetu & Another vs Republic
    (2017) eKLR
  • Benard Kimani Gacheru vs Republic
    (2002) eKLR
  • Miguna Miguna vs Fred Matiang'i & 8 Others
    (2018) eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 63(c) of the Civil Procedure Act; Order 40 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ashock Labshanker Doshi & another v County Government of Mombasa & 2 others, Benard Ochieng Ogutu & Ali Hassan Joho (Environment & Land Case 33 of 2019) [2021] KEELC 3215 (KLR)", Case Analysis (2021). ELC Case No. 33 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3215/eng@2021-05-21

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