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ELCPartially AllowedNot stated in the judgment as provided

African Gas and Oil Limited v Kahia Transporters Limited & 6 others; County Government of Mombasa & 2 others (Interested Parties) (Environment & Land Case E012 & E004 of 2023 (Consolidated)) [2025] KEELC 3139 (KLR)

Environment and Land Court of Kenya
4 April 2025
11,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa set aside contempt orders made against Kahia Transporters because the company was never heard before being condemned.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Hon. Justice L. L. Naikuni) determined two applications by the 1st Defendant, Kahia Transporters Limited, principally the Notice of Motion dated 30th October 2024 seeking review, variation and/or setting aside of the Court's orders of 22nd October 2024 by which the Applicant was cited for contempt of the access orders of 6th September 2023, and a stay of the mitigation and sentencing scheduled for 25th November 2024. The Applicant explained that its advocate mis-diarised the hearing date (recording 22nd November instead of 22nd October 2024), miscalculated the response-filing window as seventeen instead of seven days, and only belatedly saw the hearing notice email, so the contempt application of 4th October 2024 was allowed without the Applicant being heard. The Plaintiff/Respondent opposed, contending that counsel's non-attendance was no excuse and that the Applicant had breached the orders; the 3rd Interested Party argued the application was an abuse of process given a filed Notice of Appeal. The Court framed two issues: whether to review the orders of 22nd October 2024, and costs. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the standard of proof applicable to quasi-criminal contempt proceedings, the Court held the Applicant's condemnation unheard was an error apparent on the face of the record and that the reason tendered sufficed to vacate the contempt orders, freeing the Applicant of civil jail liability. The application was allowed in its entirety: the orders of 22nd October 2024 were stayed, reviewed and set aside, the contempt application of 4th October 2024 was to be heard on merit, the Applicant was granted 14 days leave to file substantive responses, and the matter was set for mention on 29th April 2025. There were no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court will review the orders issued on 22nd October 2024 as prayed for in the Notice of Motion application dated 30th October 2024
  2. 2.Who will bear the costs of the Notice of Motion application dated 30th October 2024

Key legal issues

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01

Whether the orders of 22nd October 2024 finding the Applicant in contempt could be reviewed and set aside

Holding

Yes - the Court found an error apparent in condemning the Applicant unheard in proceedings of a criminal character and vacated the contempt orders, freeing the Applicant from civil jail liability

Reasoning

The Court reviewed the statutory framework in Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the case law restricting review to specific grounds. It accepted that the Applicant's advocate mis-diarised the hearing date and miscounted the filing window, so the contempt finding was made without hearing the Applicant. Because contempt is quasi-criminal, the applicable standard of proof is strict; condemning a party unheard offended the right to a fair hearing under Articles 25 and 50. The tendered reason was therefore sufficient to vacate the orders.

p. 20
02

Costs of the application

Holding

No orders as to costs

Reasoning

The Court restated that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Supreme Court decisions, but in its discretion declined to award costs on this interlocutory application given the conflicting positions of the parties.

p. 20

Legal principles established

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  • Contempt of court is quasi-criminal in nature and guilt must be proved to a standard higher than a balance of probabilities, consistent with the gravity of the charge
  • Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 is discretionary and confined to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, without unreasonable delay
  • A party should not be made to suffer for the mistake or oversight of its advocate
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but the award is a discretion of the Court

Court orders

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  1. 1.The Notice of Motion application dated 30th October 2024 is found to have merit and is allowed in its entirety
  2. 2.The Court's orders dated 22nd October 2024 are stayed and the subsequent orders for mitigation and sentencing scheduled for 25th November 2024 are discharged
  3. 3.The Court's orders dated 22nd October 2024 are reviewed, varied and/or set aside and the Respondent's Application dated 4th October 2024 is to proceed to be heard and determined on merit
  4. 4.The 1st Defendant/Applicant is granted 14 days leave to file its substantive responses to the Respondent's Application dated 4th October 2024
  5. 5.The matter to be mentioned on 29th April 2025 before Hon. Mr. Justice Olola for directions on disposal of the application dated 4th October 2024
  6. 6.There are no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 10, 25(d), 47, 48, 50 & 159(2)(d) of the Constitution of Kenya, 2010; Sections 4(1) and (2) Fair Administrative Action Act, 2015; Sections 1A, 1B, 3, 3A & 80 of the Civil Procedure Act, Cap. 21; Order 45 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application

The Court exercised its discretion not to award costs to any party

p. 20

Costs

No orders as to costs - 'That there are no orders as to costs.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That this Honourable Court be and is pleased to review, vary and/or set aside its orders dated 22nd October 2024 and proceed to hear and determine the Respondent’s Application dated 4th October 2024 on merit
p. 20Final orders - review and setting aside of contempt orders
That this Honourable Court be and hereby stays its orders dated 22nd October 2024 and discharge its subsequent orders for mitigation and sentencing scheduled for 25th November 2024.
p. 20Final orders - stay and discharge of mitigation and sentencing
In this particular instant I find the reason tendered by the Learned Counsel suficient enough to vacate the orders for Contempt of Court and hereby set the Applicant at free from any civil jail liability.
p. 20Vacatur of contempt orders and release from civil jail liability
That there are no orders as to costs.
p. 21Costs
A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier
p. 18Scope of review jurisdiction
The right to a fair hearing dictates that an individual shall not be penalized by a decision afiecting his rights or legitimate expectations unless he has been given prior notice of the case against him
p. 13Fair hearing in contempt proceedings

Issues in the judgment

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minor

The disposition misidentifies the movant: order (a) refers to an application 'by the Plaintifi' dated 30th October 2024, whereas the application was filed by the 1st Defendant/Applicant

material

The judgment does not state the suit case number anywhere in the text provided

material

The name of the Plaintiff/Respondent is never stated in the judgment text; the party is referred to only descriptively

minor

Inconsistent date references for the ex parte orders access order: cited as 6th September 2023 in places but as 6th September 2024 elsewhere in the same submissions/recitals

minor

Duplicate numbering of paragraphs: paragraph number 23 appears twice and paragraph 18 is used twice in the submissions section

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "African Gas and Oil Limited v Kahia Transporters Limited & 6 others; County Government of Mombasa & 2 others (Interested Parties) (Environment & Land Case E012 & E004 of 2023 (Consolidated)) [2025] KEELC 3139 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3139/eng@2025-04-04

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