Osman v Mohamed & 3 others (Environment and Land Case E108 of 2023) [2025] KEELC 7421 (KLR)
The bottom line
#A Nairobi court found five company directors guilty of defying land orders halting construction, but postponed sentencing until they appear for mitigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Replying Affidavit was fatally defective for improper commissioning
The affidavit was competent; the fraud/forgery allegation was not proved.
The affidavit was commissioned by Allan Odhiambo Onyango, a commissioner for oaths. The Plaintiff alleged the signature was a forgery because it differed from that on the annexures. Fraud must be specifically pleaded and proved; the Plaintiff adduced no proof beyond supposition, so the plea failed.
Admissibility of the Defendants' certificate of electronic evidence
The certificate was incompetent and the attached photographs inadmissible for failure to describe the manner of production of the electronic record.
While the certificate identified the source device (an iPhone) and affirmed proper operation, it omitted a description of how the electronic record was produced, a crucial requirement under Section 106B(4) of the Evidence Act as explained in Lodinyo. The photographs it supported were therefore inadmissible.
Knowledge of the orders despite alleged lack of personal service
Knowledge was established: counsel were present when orders were made, orders were personally served by letter of 19th November 2024, and the Defendants' advocates acknowledged receipt by letter of 25th November 2024.
Following Shimmers Plaza, knowledge of an order by a party's advocate suffices; personal service plus penal notice is no longer mandatory. The Defendants' mistake-of-counsel claim was unsupported by credible evidence. Service and acknowledgment were documented and unrefuted.
Whether breach of the 31st July 2024 orders was proved
Breach was clearly demonstrated; the five named directors were found guilty of contempt.
Photographic evidence showed ongoing construction on 20th November 2024 and 4th–5th April 2025, corroborated by the OCS's affidavit confirming police found and halted construction. The Defendants' contrary photographs were inadmissible; the orders were clear and binding.
Legal principles established
#- Knowledge of a court order supersedes the requirement of personal service in contempt proceedings.
- The standard of proof in contempt proceedings is higher than the balance of probabilities but below beyond reasonable doubt.
- Four elements must be proved for civil contempt: clear and unambiguous order binding on the defendant; knowledge; breach; and deliberate conduct.
- A certificate of electronic evidence must describe the manner of production of the electronic record to be admissible under Section 106B of the Evidence Act.
Court orders
#- 1.A finding that Mr. Abdirahman Adan Mohamed, Mr. Mahad Adan Abdullahi, Mr. Mohamud Ahmed Abdille, Mr. Ahmed Osman Abdi, and Mr. Hussein Abdi Huissein are in breach of the court orders of 31st July, 2024 and are guilty of contempt.
- 2.The aforesaid contemnors shall avail themselves on a date to be fixed by the court for mitigation and sentencing.
- 3.The 1st, 2nd and 4th Defendants shall bear the costs of the Motion.
- Jurisdiction invoked
- Articles 40 and 50 of the Constitution; Section 29 of the Environment and Land Court Act, 2011; Sections 2 and 5 of the Judicature Act Cap 8; Part 81 of the English Civil Procedure Rules, 1998
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osman v Mohamed & 3 others (Environment and Land Case E108 of 2023) [2025] KEELC 7421 (KLR)", Case Analysis (2025). Notice of Motion dated 17th April, 2025 (E&L suit concerning L.R Nairobi/Block 42/129). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7421/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.