https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12670

Dosh & another v Joho & another (Constitutional Petition E042 of 2021) [2026] KEHC 12670 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEHC 12670 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E042 of 2021 J Ngaah, J August 6, 2026 Between Ashok Labshanker Dosh 1st Petitioner Pratibha Ashok Dosh 2nd Petitioner and Hon Ali Hassan Joho 1st Respondent Benard Ochieng Ogutu 2nd Respondent Ruling Introduction 1.Before the court is the 1st Respondent's Notice of Motion dated and filed on 15th November 2024. It is expressed to be brought under Rule 5(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the inherent power of the court. The 1st Respondent, prays for orders that:(a)both the Petition and the Notice of Motion dated 29th July 2021 filed by the Petitioners be struck out or, in the alternative, be dismissed; and(b)the costs of this application and of the Petition be awarded to the 1st Respondent/Applicant. 2.The application is supported by the affidavit of Mr. Paul Buti, learned counsel having the conduct of this matter on behalf of the 1st Respondent, and is premised on the grounds set out on its face. It is opposed by the Petitioners through their Grounds of Opposition dated 4th April 2025. Both sides filed written submissions, which I have carefully considered in reaching a determination on the 1st respondent’s motion. Background 3.A brief background is necessary to place the application in its proper context. By a Petition dated 29th July 2021, the Petitioners moved this court seeking the following reliefs:“ 1.A declaration be and is hereby made that Ali Hassan Joho the 1st respondent herein and Bernard Ochieng Ogutu, the 2nd respondent herein having been found guilty of disobedience of a lawful court order issued in Mombasa ELC No. 33 of 2019: Ashok Labshanker Doshi & Another v. County Government of Mombasa & Another and having been sentenced buy a court of law for their said disobedience, have breached, contravened, violated and acted contrary to Article 10(1) and (2) (c), Article 73(1) (a) (i), (ii), (iii), (iv) and (2) and Article 174 (a) of the Constitution of Kenya, 2010 as well as Section 30 (3) (d) of the County Governments Act, 2012. 2.A declaration be and is hereby made that by reason of the findings in Mombasa ELC No. 33 of 2019: Ashok Labshanker Doshi & Another v. County Government of Mombasa & Another that the respondents disobeyed a lawful court order, the respondents misused and/or abused their respective offices as the County Governor of Mombasa County and the Member County Assembly of Mombasa respectively. 3.A declaration be and is hereby made that by reason of the finding that the respondents disobeyed a lawful court order, the respondents have breached chapter six of the Constitution of Kenya 2020 (sic). 4. A declaration be and is hereby issued that the 1st and 2nd respondents are no longer eligible and have ceased to be eligible and/or qualified to hold the office of the County Government of Mombasa and member of the County Assembly of Mombasa respectively and consequently the office of the County Governor of Mombasa County and the office of the Member of County County Assembly of Mombasa for Changamwe ward have become vacant forthwith. 5.A declaration be and is hereby made that having been found guilty of disobedience of a lawful court order and having been sentenced by a court of law in Mombasa ELC No. 33 of 2019: Ashok Labshanker Doshi & Another v. County Government of Mombasa & Another, the respondents herein Ali Hassan Joho and Benard Ochieng Ogutu are unfit to hold any state office and/or public office in the Republic of Kenya now and in future. 6.A permanent injunction be and is hereby issued restraining the 1st respondent from holding the office of the County Governor of Mombasa and the 2nd respondent from holding the office of the Member of County Assembly of Mombasa for Changamwe Ward and/or any other state and/or public office in the Republic of Kenya. 7.The costs of this petition be paid by the respondents to the respondents jointly and severely. 8.Any further relief or order that this Honourable Court shall deem just and fit to grant.” 4.It is not in dispute that the finding of disobedience relied upon by the Petitioners was that made by the Environment and Land Court (Munyao, J.) on 12th February 2020 in ELC No. 33 of 2019, followed by the sentence imposed on 21st May 2021. That finding, as it related to the 1st Respondent, became the subject of Civil Appeal No. E107 of 2021 in the Court of Appeal at Mombasa. 5.On 2nd March 2022, this court (Mativo, J., as he then was) directed that the Petition await the outcome of that appeal, it being considered prudent to do so because the decision of the appellate court could have a bearing on the Petition. As a matter of fact, the learned counsel for the petitioners is recorded to have submitted as follows: 0.“Also, it has been argued that there is an appeal No. E.107/2021 in the Court of Appeal at Mombasa. Appeal has a hearing date and parties are filing submissions and we are awaiting a date. So I was going to ask for an adjournment.”The learned went further and stated: “It is only proper we wait for appeal.” 6.The court was persuaded by the petitioners’ counsel’s submissions and held, inter alia, that:“…the existence of a pending appeal in my view leaves me with no doubt that it will be prudent to await its outcome because there is a possibility that its outcome may impact on the case impacting on the decision if made.”The matter thereafter came up for mention on diverse dates to ascertain the status of the appeal. 7.On 8th November 2024, the Court of Appeal (Murgor, Lesiit & Odunga, JJ.A.) delivered its judgment in Civil Appeal No. E107 of 2021. The appeal, which had been preferred by the 1st Respondent (Ali Hassan Joho) as appellant, was allowed. Upon its own re-evaluation of the record, the appellate court held that the 1st Respondent, not having been a party to the proceedings in ELC No. 33 of 2019, ought to have been personally served with the application dated 17th May 2019 by which he was cited for contempt, and that the Petitioners had failed to prove, to the standard required in contempt proceedings, that he was so served. The court accordingly set aside the order of 12th February 2020 citing the 1st Respondent for contempt, together with the consequential orders. 8.It is upon the strength of that judgment that the present application is brought. The Applicant's Case 9.The 1st Respondent's case, distilled from the Notice of Motion, the supporting affidavit and the submissions, is a straightforward one. He contends that the Petition is anchored upon the matters pleaded at paragraphs 11, 12 and 14 of the Petition, namely the finding of disobedience made on 12th February 2020, the dismissal of his application to set that finding aside, and the sentence of 21st May 2021, and that the substantive prayers in the Petition, in particular the prayer that he be declared unfit to hold office, were all predicated upon that finding of disobedience. 10.It is submitted that, with the setting aside of the orders of 12th February 2020 by the Court of Appeal, the very foundation and substratum of the Petition has collapsed; that there consequently remains nothing for the Petitioners to pursue; and that any continued prosecution of the Petition would amount to an abuse of the process of the court, which this court is empowered to prevent. Rule 5(8) of the Mutunga Rules is invoked, and it provides:Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 11.As regards the anticipated objection that the application is not supported by his own affidavit, the 1st Respondent relies on Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 Others [2005] eKLR and on Order 19 Rule 3 of the Civil Procedure Rules for the proposition that there is no prohibition against an advocate swearing an affidavit on matters within his own knowledge, and that his counsel, having had the conduct of both this matter and the appeal, was competent to depose to the procedural history and to produce the appellate judgment. The Petitioners' Response 12.The Petitioners oppose the application on several fronts. First, they contend that it is fatally defective for want of a supporting affidavit sworn by the 1st Respondent himself, the affidavit of Mr. Buti, being that of counsel and not of a party, being said to be insufficient to sustain so drastic a prayer. 13.Secondly, they contend that a similar application dated 16th September 2021, seeking the very same prayers, is pending before the court, and that the present application is therefore an abuse of process tainted by duplicity and multiplicity of applications. 14.Thirdly, they contend that the application is an attempt to short-circuit the merit determination of the Petition; that the effect, if any, of the Court of Appeal judgment upon the viability of the prayers is itself a question that can only be resolved at the hearing of the Petition; and that the parties and the court had all along agreed that the appeal would be considered at the prosecution of the main Petition, and not through an interlocutory application. 15.Fourthly, they contend that the Petition is not founded solely upon the contempt finding in ELC No. 33 of 2019; that they also rely upon a finding said to have been made against the 1st Respondent by Ogola, J. on 30th September 2021 in High Court Petition No. 39 of 2016, in respect of which they have a pending application dated 1st March 2022 for leave to adduce further evidence. 16.Finally, they point out that the Court of Appeal judgment set aside the finding of contempt only as against the 1st Respondent; that the 2nd Respondent neither appealed nor had his conviction disturbed, and indeed paid the fine imposed upon him; and that the Petition, which seeks relief against both Respondents, cannot in those circumstances be struck out in its entirety. Issues for Determination 17.Having considered the application, the grounds of opposition and the rival submissions, three issues fall for determination:(a)whether the application is incompetent for want of a supporting affidavit sworn by the 1st Respondent himself;(b)whether the application constitutes an abuse of the process of the court by reason of the earlier application dated 16th September 2021; and(c)whether the Petition and the Notice of Motion dated 29th July 2021 ought to be struck out or dismissed on the ground that their substratum has been removed by the judgment of the Court of Appeal. Whether the application is incompetent for want of the applicant's affidavit 18.The first objection is that the application is fatally defective because its supporting affidavit was sworn not by the 1st Respondent, but by his advocate, Mr. Buti. With respect, I am not persuaded that the objection has merit. 19.The general rule is that stated in Order 19 Rule 3(1) of the Civil Procedure Rules, namely that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, save that on interlocutory applications statements of information and belief may be admitted provided the sources and grounds thereof are disclosed. There is no rule of law that requires the supporting affidavit to an application of this nature to be sworn by the party personally, and by no one else. 20.The Court of Appeal addressed this very question in Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 Others [2005] eKLR, where it recognised that there is no “express prohibition against an advocate” who of his own knowledge can prove certain facts from stating them in an affidavit on behalf of his client, and that an advocate who has information whose source he is able to disclose may depose to the grounds of his belief. The court there declined to reject an affidavit sworn by counsel where the deponent was possessed of the relevant facts and had explained why the party himself was not readily available to swear it. 21.In the present case, Mr. Buti deposes that he has had the conduct of this matter and that he personally participated in Civil Appeal No. E107 of 2021 in the Court of Appeal. The matters to which he deposes, the history of these proceedings and the outcome of the appeal, are matters within his own knowledge as counsel on record; and the principal document relied upon, the judgment of the Court of Appeal, is a public record of which this court takes judicial notice. In truth, the application turns not upon any contested question of fact but upon a question of law, namely the legal effect of the appellate judgment upon the Petition. 22.There is, moreover, a further and more basic answer to the objection. The supporting affidavit does no more than reproduce the chronology of these proceedings — events that are, in any event, borne out by the record of this court and require no affidavit to establish them. The only genuinely new material it introduces is the judgment of the Court of Appeal, which, being a public document and a decision of a superior court, is one of which this court is entitled to take judicial notice without the aid of any affidavit at all. The objection to the affidavit is, on that account, one of form rather than of substance, and it cannot defeat the application. 23.If I may add, where an application raises a pure point of law, the presence or absence of a supporting affidavit is not decisive, and a court would be slow to shut out a party on so technical a ground, mindful of the command in Article 159(2)(d) of the Constitution that justice be administered without undue regard to procedural technicalities. I therefore find the supporting affidavit competent, and I reject this ground of opposition. Whether the application is an abuse of process by reason of the earlier application 24.The second objection is that the present application duplicates an earlier application dated 16th September 2021, which is said to be pending and to seek the same relief, so rendering the present application an abuse of process. 25.The 1st Respondent's answer, which is borne out by the record placed before me, is that this court (Mativo, J., as he then was) directed that the earlier Notice of Motion dated 16th September 2021, together with the submissions and authorities filed in support of it, should form part of his opposition to the main Petition. To be precise, on 1 November 2021 the Court issued directions on the haring of the petition and, inter alia, ordered as follows:“(b)Mr. Buti’s Notice of Motion dated 16/9/2021 and the submissions and the authorities shall form part of his opposition to the main petition.”That being the case, the earlier application ceased to subsist as a discrete application for striking out, and no question of a pending duplicate application properly arises. 26.In any event, the present application is founded upon a materially different and supervening event: the judgment of the Court of Appeal delivered on 8th November 2024, which did not exist when the earlier application was filed in September 2021. An application grounded upon a fresh and decisive development cannot, ipso facto, be condemned as an abuse of process merely because an earlier application touching the same Petition was once on record. I accordingly reject this ground of opposition also. Whether the petition ought to be struck out or dismissed 27.This is the substantive question, and it must be approached against settled principle. The power to strike out or summarily dismiss a suit, and, a fortiori, a constitutional petition, is a draconian one, to be exercised sparingly and only in plain and obvious cases in which the claim is so hopeless that it is beyond redemption. 28.The locus classicus is D.T. Dobie & Company (Kenya) Limited v Muchina [1980] eKLR, where Madan, J.A. cautioned that a court of justice should “aim at sustaining a suit rather than terminating it by summary dismissal,” and that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. The same court, in Yaya Towers Limited v Trade Bank Limited (In Liquidation), Civil Appeal No. 35 of 2000, affirmed that a party is entitled to pursue his claim unless it is demonstrated that the claim is bound to fail or is otherwise an abuse of the process of the court. 29.The 1st Respondent's argument has considerable force. The Petition, as pleaded, draws upon the finding of disobedience made against him on 12th February 2020; and that finding has now been set aside by the Court of Appeal. A central plank, indeed, the very foundation, of the case against the 1st Respondent has thereby been removed. The question is whether the Petition retains any sustainable foundation as against the 1st Respondent, now that the finding upon which it was built has been set aside by a superior court. In my judgment it does not, and for the reasons that follow the Petition cannot, as against the 1st Respondent, be permitted to stand. 30.At the outset it must be borne in mind that the 1st Respondent's application is brought by him, and for him, alone. The specific prayer reads as follows:“(a)Both the petition and the notice of motion, dated 29th July 2021, filed by Ashok Labshanker, Doshi & Pratiba Asok Doshi as petitioners against Ali Hassan Joho, (the applicant herein) be struck out, or, alternatively, be dismissed.”Thus the 1st respondent seeks the striking out of the Petition as against himself, and not as against the 2nd Respondent. Two consequences follow. The first is that the applicant neither seeks, nor could properly obtain, the striking out of the Petition in so far as it is directed against the 2nd Respondent, Benard Ochieng Ogutu, who was not the appellant in Civil Appeal No. E107 of 2021. Ogutu did not appeal against his own conviction, and, as the Petitioners state without contradiction, he paid the fine imposed upon him. 31.The second consequence, and the more important, is that the position of the 1st Respondent must be assessed on its own footing. Just as the Petition may not be struck out against the 2nd Respondent on the strength of a case that concerns only the 1st Respondent, so too the Petition cannot be sustained against the 1st Respondent merely because no case for striking out has been made out against the 2nd Respondent. Without belabouring the point, if a proper case has been made out for striking out the Petition against the 1st Respondent, the Petition cannot not be maintained against him simply because it survives against his co-respondent. I therefore consider the 1st Respondent's position on its own footing; and I am satisfied that a proper case for striking out the Petition against him has been made out. 32.In the first place, the whole edifice of the Petition, as against the 1st Respondent, was the finding that he had been found guilty of disobedience of a lawful court order in ELC No. 33 of 2019 and sentenced for it. That is the foundation pleaded not only at paragraphs 11, 12 and 14 of the Petition, but it is also the premise of the several declarations sought against him. That finding has now been set aside by the Court of Appeal. There is, in consequence, no subsisting finding of contempt or disobedience against the 1st Respondent upon which the Petition, as presently framed, can rest. 33.The Petitioners urge that there is further evidence in support of their petition against the 1st respondent but which they are yet to produce. To this end, it has been urged on their behalf as follows:“ 20.The fifth reason why the application must fail is because it is premised on the misguided notion that the Petitioners intend to prosecute the petition solely on the basis of the ruling on contempt delivered in Mombasa ELC No. 33 of 2019: Ashok Labshanker Doshi & Another V. County Government of Mombasa & Another. That is far from the truth. There is another case in which the applicant was found guilty of disobeying court order, to wit, the ruling delivered by Justice Ogola on 30th September 2021 in High Court Petition No. 39 of 2016. 34.No proof has been provided beyond that which has, in any event, been overturned by the Court of Appeal, that the 1st respondent has been convicted of contempt of the sort that would warrant grant of the orders sought in the petition. A party cannot avert the striking out of a baseless petition by invoking evidence which it ought to have produced and has withheld; nor can the court be asked to keep such a petition alive upon speculation as to evidence that has never been tendered. The absence of that evidence, like the absence of any subsisting finding against the 1st Respondent, counts in his favour, and not in that of the Petitioners. 35.In the second place, and for emphasis, the Petitioners' reliance upon High Court Petition No. 39 of 2016 does not rescue the Petition. That matter is not pleaded in the Petition; it is the subject only of an unheard application dated 1st March 2022 for leave to adduce further evidence; and no finding prejudicial to the 1st Respondent, whether in that matter or in ELC No. 33 of 2019, has been shown to subsist before this court. A mere intention to adduce evidence at some future time, in a matter that is not pleaded and in which no prejudicial finding has been demonstrated, cannot keep alive a Petition whose pleaded foundation has been removed. This circumstance, too, tells in favour of the 1st Respondent, and not of the Petitioners. 36.In the third place, this is not a case in which the court would be pronouncing upon contested facts under the guise of an interlocutory application. The collapse of the foundation of the Petition, as against the 1st Respondent, is not a matter of speculation or of disputed evidence; it is established by the record, the judgment of the Court of Appeal setting aside the very finding upon which the Petition was built. Where the foundation of a claim has been removed as a matter of record, and nothing has been placed before the court to take its place, there remains nothing to be tried, and no purpose would be served by deferring the inevitable to a plenary hearing. That is the true distinction between this case and those in which the caution in the D.T. Dobie case (supra) against summary termination applies with its full force: here there is no semblance of a surviving cause of action against the 1st Respondent to be preserved. 37.Finally, this conclusion accords with the course that the parties themselves, and this court, had earlier charted. When on 2nd March 2022 this court directed that the Petition await the outcome of the appeal, it did so precisely because the appeal went to the very foundation of the Petition and could determine it. The appeal has now determined it: it has removed, as against the 1st Respondent, the finding upon which the Petition depended. It would be a strange result if, the appeal having answered the very question for which the Petition was stayed, the court were nonetheless to subject the 1st Respondent to a full hearing of a Petition that can no longer stand against him. 38.For these reasons, the Petition, as against the 1st Respondent, has been left without any sustainable foundation. On its pleaded basis it cannot succeed against him, and it is beyond redemption. To require the 1st Respondent to remain tethered to such a Petition would itself be an abuse of the process of the court, which this court is enjoined by Rule 5(8) of the Mutunga Rules, and by its inherent jurisdiction, to prevent. The Petition, together with the Notice of Motion dated 29th July 2021, must accordingly be struck out as against the 1st Respondent. 39.In the result, and for the reasons I have given, I make the following orders:(a)The Petition dated 29th July 2021, together with the Notice of Motion dated 29th July 2021, are hereby struck out as against the 1st Respondent.(b)The Petitioners shall bear the 1st Respondent's costs of the application, and of the Petition in so far as it concerned the 1st Respondent.(c)Considering that the ruling is published on the Case Tracking System portal in the absence of parties or their representatives, any dissatisfied party is granted leave to appeal, if such leave is necessary.It is so ordered. SIGNED, DATED AND POSTED ON THE CTS ON 6 AUGUST 2026NGAAH JAIRUSJUDGE