Mining CS Hassan Joho has narrowly escaped serving a jail term after a court of appeal overturned a contempt conviction he was handed.
During his tenure as Mombasa governor in 2019, Joho had been sucked into a court fight over a prime piece of land.
A steel billionaire who claimed ownership protested attempts by the county administration to reacquire the parcel.
The conflict emerged when Ashok Doshi and Prashibha Doshi sued then Changamwe MCA Benard Ogutu and the Mombasa County government, court papers show.
This was after Ogutu led officers from the devolved administration to storm the fenced and gated piece of land, claiming it was grabbed.
They allegedly vandalised the gate and part of the perimeter wall, claiming the Doshi family had grabbed the land belonging to Changamwe Secondary School.
This was in February 2019. Days later, the chief officer of Physical Planning and Housing served an Enforcement Notice on the employees of the Doshi brothers, ordering them to move for the land to be repossessed by the county.
The brothers quickly obtained conservatory orders barring the county or its agents from interfering with their ownership and usage of the land, pending a hearing and determination of the matter.
But before the matter could be heard, the Doshis filed an application for Joho and the lands chief officer to be summoned, to show why they should not be committed to civil jail for six months.
This was for allegedly disobeying the said court order barring interference with their use of the property.
The court found that agents of the county government had acted contrary to the order by setting foot on the land.
“...there was at the very least a visitation of the property by the 1st and 3rd respondents contrary to the orders of the court... It is therefore not difficult for me to find that there was a violation of the court orders by Joho and Ogutu... The evidence on the violation is overwhelming and most importantly, is not disputed,” it said.
But Joho appealed the conviction before the same court, saying he was personally served by the application that sought his citing.
The judge dismissed his plea, finding that as governor, he and all the officers serving in the government were represented by the county attorney, who actively took part in the proceedings.
“While [the judge] appreciated that the county government and [Joho] were two different persons, the learned judge found that since the [county government] is not a natural person, an order directed to it applies to all its employees, agents and persons acting on its behalf and that if an application for disobedience is filed and served on the [county] that is sufficient service on its officers.”
With the prospect of his incarceration preeminent, Joho appealed, arguing that the fact that he was not served personally meant he was afforded the opportunity to be heard as he was not a party to the proceedings and had no representation.
After lengthy arguments, a threejudge bench of appeal sided with him, setting aside the contempt conviction.
“...we allow this appeal, set aside
the order made on February 12, 2020,
dismissing the application together
with the consequential order and
substitute therefore an order allowing the said application,” the judgement dated November 8, 2024 says.
