Court bars DCI, DPP from prosecuting NEMA staff over Embakasi gas blast

The High Court barred the Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) from prosecuting four officials of the National Environment Management Authority (NEMA) linked to a gas blast in Embakasi last year.

Justice John Chigiti ruled that the applicants were detained in breach of Article 49 of the Constitution.

He added that Joseph Makau, David Walunya Ongare, Marriam Kioko, Lynette Cheruiyot and Isaac Kimitei had proven that they enjoy statutory immunity, and the circumstances amount to an illegality that offends Section 66 of the Environmental Management and Coordination Act (EMCA).

"In the exercise of that power, the Director of Public Prosecutions must avoid the abuse of the criminal justice process and protect the public interest. The Director of Public Prosecutions has a duty to ensure that the interests of justice are not compromised in the course of a prosecution", the judgement reads.

The judge further said the court must ensure that a criminal trial that is predicated on an illegality does not proceed once the illegality is identified under Article 10 of the Constitution in the spirit of upholding and promoting the rule of Law.

However, the court found nothing wrong with a trial magistrate ordering the detention of accused persons and the applicants in exercise of discretion in this case, upon being satisfied by the application of the Director of Public Prosecutions.

"An order of prohibition is hereby issued against the Director of Criminal Investigations and the Director of Public Prosecutions prohibiting the further incarceration, detention and charging of the ex parte applicants", Justice Chigiti ruled.

The judge also issued a declaration to the effect that the ex parte applicants are protected by law from prosecution arising from their actions or decisions applied in their official capacity within the course of their employment under the Environmental Management and Coordination Act.

Joseph Makau, a senior environment officer stationed at the NEMA Headquarters in South C, Nairobi, said he was arrested on February 4, 2023, around 10 pm at his house and driven to Embakasi Police Station.

On February 5, 2024, he was arraigned in court, where the prosecution requested—and was granted—custodial orders to detain him at Embakasi Police Station for 21 days.

He was informed that he was a person of interest in connection with NEMA’s decision to issue an Environmental Impact Assessment (EIA) licence—a decision made as part of his official duties.

He argues that his statutory immunity from criminal liability has been breached given that his conduct of the matter is limited by virtue of the execution of my duties under employment only.

It was his case that Section 18 of the Environmental Management and Coordination Act shields from personal liability on actions taken in the course of employment. It provides that: "No matter or thing done by a member of the Authority or any officer, employee or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever," Makau said.

He said Section 66 of the Environmental Management and Coordination Act shields him from personal liability in all cases of issuance of an Environmental Impact Assessment Licence.

However, the Director of Public Prosecutions asked the court to dismiss the case, arguing that the application was premature since his office had not yet received the investigation file from the Inspector General of Police, which is necessary to exercise his prosecutorial mandate under Article 157 of the Constitution.

Other Topics To Read

• Headlines
• City Affairs
• DCI
• DPP
• NEMA
• Justice John Chigiti
• Embakasi gas blast
• Court bars DCI
• DPP from prosecuting NEMA staff over Embakasi gas blast

Last year, the proprietor of the illegally operated gas plant that exploded, killing over 10 people in Mrandi village, Embakasi in Nairobi, faced 10 charges of manslaughter.

Derrick Kimathi is jointly charged alongside his employee, Stephen Kilonzo Mutie, who was the plant manager.

They are accused of causing the deaths of Evans Oduor, Martin Simiyu Walumbi, Vallary Nyandiko, Charles Macharia and Ann Nyanguthi Muriuki.

Others named among those killed in the night tragedy are Simon Mulongo Nyongesa, Miriam Onyango, Stanley Vulimu Chasia, Austin Shivanda and Flora Njeru.

Some of the victims died at the scene, while others succumbed to injuries while undergoing treatment at different hospitals in Nairobi.

Kimathi and Mutie are also charged with unlawfully operating a bulk liquefied petroleum gas (LPG) storage facility without a valid licence from the Energy and Petroleum Regulatory Authority (EPRA).

The two suspects denied the charges before Principal Magistrate Gilbert Shikwe.

They were released on a bond of Sh3 million each with surety, or an alternative Sh1 million cash bail.