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ELCDismissedNot stated in judgment (Machakos ELC suit; related: Mavoko Chief Magistrates Court MCCCMISC No. E037 of 2024 - Irene Adhiambo vs. Lunga Lunga Energy Limited)

Lunga Lunga Energy Limited v Directors Acme Wanji Investment Limited & 4 others; Lunga Lunga Energy Limited (Plaintiff); Acme Wanji Investments Limited & another (Defendant); Energy & Petroleum Regulatory Authority (Interested Party) (Environment & Land Case E044 of 2024) [2025] KEELC 4021 (KLR)

Environment and Land Court
27 May 2025
3,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court dismissed both a contempt claim and a review application, warning litigants against re-arguing decisions instead of appealing.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos, delivered by A. Y. Koross, J on 27 May 2025, determined two notices of motion by the plaintiff/applicant, Lunga Lunga Energy Limited. The first, dated 16/09/2024, sought committal of the respondents to six months' imprisonment and/or fines for contempt of interim injunctive orders issued on 11/07/2024 and extended on 25/07/2024, relating to continued construction on Mavoko Block 6/3 and non-return of gas plant equipment. The court outlined the contempt regime under Section 5 of the Judicature Act, Section 29 of the Environment and Land Court Act, and Rule 81.4 of the England and Wales Civil Procedure Rules, and adopted the quasi-criminal standard of proof from Mutitika v Baharini Farm and Republic v Ahmad Abolfathi Mohammed. It found the 3rd to 5th respondents were never served and could not default on orders they were unaware of; the 1st respondent, a juristic person, had not had its veil lifted nor its directors served; and in any event the orders had been overtaken by events, as the property had been auctioned, sold to Fanaka Aluminium Company Limited (a non-party) and the equipment disposed of under orders in Mavoko CMCCMISC No. E037 of 2024. The contempt motion was dismissed with costs. The second motion, dated 7/02/2025, sought review of the ruling of 18/09/2024 on the ground of error apparent on the face of the record concerning rent default. Applying Section 80 of the Civil Procedure Act, Order 45 Rule 1 and Parliamentary Service Commission v Wambora, the court held the threshold unmet, the complaint being a matter for appeal; relief (c) was res judicata. That motion was also dismissed with costs. The court restrained further applications without leave and directed Order 11 compliance within 21 days.

Questions the Court framed

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

  1. 1.Whether the respondents in the motion dated 16/09/2024 are in contempt of court.
  2. 2.Whether the plaintiff has met the threshold to warrant the review of the orders issued on 18/09/2024.
  3. 3.What orders should this court issue, including an order as to costs?

Key legal issues

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01

Whether the respondents were in contempt of the injunctive orders of 11/07/2024 and 25/07/2024

Holding

No contempt established. The orders were overtaken by events (the property had been auctioned and transferred), the 3rd-5th respondents were never served, and no case was made against the juristic person without lifting the corporate veil.

Reasoning

The court applied the quasi-criminal standard of proof from Mutitika v Baharini Farm and Republic v Ahmad Abolfathi Mohammed, requiring deliberate, wilful disobedience. Awareness of the order could be imputed to the 1st and 2nd respondents through counsel, but the orders had been overtaken by events: the auction and sale preceded them, the suit property belonged to Fanaka (a non-party), and the equipment was beyond the respondents' control. Personal service on directors was never effected.

p. 7
02

Whether the plaintiff met the threshold for review of the ruling of 18/09/2024

Holding

No. The alleged error apparent on the face of the record fell far short of the Order 45 threshold; the complaints were matters for appeal and the motion was vexatious re-litigation.

Reasoning

Under Section 80 CPA and Order 45 Rule 1, an applicant must show discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The plaintiff merely disputed the court's earlier factual findings on rent payment, which is appellate territory, and the Parliamentary Service Commission v Wambora principles confirm review is not a second bite at the cherry.

p. 9

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
  • Contempt proceedings are quasi-criminal and must be exercised with utmost care and only as a last resort.
  • Review is an equitable remedy, not an appeal; an applicant must show error in the exercise of discretion.

Court orders

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  1. 1.The notice of motion dated 16/09/2024 is hereby dismissed with costs to the 1st defendant.
  2. 2.The notice of motion dated 7/02/2025 is hereby dismissed with costs to the defendants.
  3. 3.Unless with leave of the court, there shall be no further filing of applications in this matter.
  4. 4.Parties to fully comply with Order 11 within 21 days.
  5. 5.A mention date shall be given for pretrial directions.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 29 of the Environment and Land Court Act (contempt jurisdiction); Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review)

Relief refused

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Committal of respondents to jail and fines for contempt

Standard of proof in contempt not met; orders incapable of enforcement having been overtaken by events; 3rd-5th respondents never served; Wanji is a juristic person whose veil was not lifted and whose directors were not personally served.

p. 7

Review and setting aside of the ruling dated 18/09/2024

Threshold in Order 45 Rule 1 not met; the applicant sought to re-litigate matters belonging to an appellate court.

p. 9

Relief (c) of the motion dated 7/02/2025

Res judicata, having been dealt with in the ruling of 18/09/2024.

p. 4

Costs

Notice of motion dated 16/09/2024 dismissed with costs to the 1st defendant; notice of motion dated 7/02/2025 dismissed with costs to the defendants.

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.

The public auction was advertised on 11/06/2024, and the proclamation was conducted by a court order and executed before the suit herein was filed.
p. 7Contempt - orders overtaken by events
In this court's view, they could not default on what they were not aware of.
p. 7Contempt - notice/service requirement
the standard of proof in contempt proceedings is higher than proof on the balance of probabilities, almost but not exactly, beyond a reasonable doubt.
p. 7Standard of proof in contempt
The notice of motion dated 16/09/2024 is hereby dismissed with costs to the 1st defendant.
p. 9Final orders
The notice of motion dated 7/02/2025 is hereby dismissed with costs to the defendants.
p. 9Final orders - review motion
Unless with leave of the court, there shall be no further filing of applications in this matter.
p. 9Final orders - restraint on further applications

Issues in the judgment

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minor

The judgment refers inconsistently to the dates the injunctive orders were issued and extended, stating both 12/07/2024 and 26/07/2024 in the grounds and 11/07/2024 and 25/07/2024 in the analysis.

minor

The suit's own case number does not appear in the body of the ruling.

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, "Lunga Lunga Energy Limited v Directors Acme Wanji Investment Limited & 4 others; Lunga Lunga Energy Limited (Plaintiff); Acme Wanji Investments Limited & another (Defendant); Energy & Petroleum Regulatory Authority (Interested Party) (Environment & Land Case E044 of 2024) [2025] KEELC 4021 (KLR)", Case Analysis (2025). Not stated in judgment (Machakos ELC suit; related: Mavoko Chief Magistrates Court MCCCMISC No. E037 of 2024 - Irene Adhiambo vs. Lunga Lunga Energy Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4021/eng@2025-05-27

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