Firm loses appeal for permit to set up Mombasa LPG depot

Justice Stephen Kibunja ruled that the Tribunal did not err in law in finding and holding that there was no evidence of adequate public participation before the issuance of the EIA licence to Eleven Energy Ltd.

“It would thus follow that there is no merit in the appeal hence the appellant (Eleven Energy Ltd) is not entitled to the reliefs sought in the appeal or any one of them,” said Justice Kibunja in his judgment delivered on June 12.

The Tribunal had revoked the EIA license following an appeal by some residents against Nema's decision to grant Eleven Energy Ltd the licence.

The Tribunal held that there was inadequate public participation prior to the issuance of the licence in contravention of the constitution.

This prompted Eleven Energy Ltd to file the appeal at the ELC in Mombasa challenging the Tribunal’s decision. It sought to have among other orders the EIA licence reinstated.

In its appeal, Eleven Energy Ltd had argued that the Tribunal erred in law in allowing the appeal despite the residents failing to discharge their burden of proof thus arriving at a wrong determination in law.

Justice Kibunja said the court was unable to find any fault with the Tribunal’s analysis of the evidence placed before it and the conclusion reached.

He said the analysis was well-reasoned and that the members of the Tribunal were entitled to reach their conclusion.

“The Tribunal was entitled to consider the appellant’s compliance with the entire applicable legal framework including the Environmental Management and Coordination Act and regulations made thereunder on public participation,” said Justice Kibunja.

The judge further ruled that the Tribunal did not err in law in requiring Eleven Energy Ltd to comply with the applicable regulations for public participation under EMCA.

He said that the Tribunal was required to ensure compliance with all applicable statutory requirements whether or not specifically cited by the respondents.

“The appellant could not have been taken by surprise at the hearing because the respondents’ notice of appeal was clear that lack of adequate public participation was one of the grounds of appeal,” ruled Justice Kibunja.

Eleven Energy Ltd also argued that the Tribunal erred in law in revoking the EIA license issued to it despite the residents failing to adduce any evidence discrediting that public participation and stakeholder engagement and consultation was done.

The company also argued that the Tribunal erred and misdirected itself in law in applying the wrong test to determine whether itself and Nema undertook adequate public participation before issuance of the license.

At the Tribunal, the residents had sought the revocation of the EIA license arguing that the company failed to carry out any or any meaningful public participation and failure by Nema to ensure that proper public participation was done before the issuance of the licence.

The residents also argued that there was a failure to assess safety, security, and environmental concerns before the issuance of the licence.

They also argued that there was a failure to consider that the project was very close to very high-density residential areas, particularly Kibarani, Kipevu, Bahati, Chaani, and Lilongwe villages.

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